Judgment affirmed.[[235]]
FECHLEY v. SPRINGFIELD TRACTION COMPANY
St. Louis Court of Appeals, Missouri, May 8, 1906.
Reported in 119 Missouri Appeal Reports, 358.
Error to Circuit Court, Greene County. Verdict and judgment for defendant. Plaintiff appeals.
Appellant, Fechley, was damaged by the collision of a street car with a one-horse buggy in which he was riding. The buggy was owned and driven by Pierce, at whose invitation Fechley was riding. Pierce, upon his own statement, was negligent in not seasonably looking, or taking proper precautions, to ascertain if a car was approaching before he attempted to drive across two parallel railway tracks. The facts as to the alleged negligence of Fechley are sufficiently stated in the extracts from the opinion, given below.
One error assigned was the submission to the jury of the issue of appellant’s contributory negligence.[[236]]
Goode, J. [After stating the case; and holding that the negligence of Pierce would not bar Fechley from recovering against the company if the motorman’s negligence was in part the proximate cause of the collision.]
Appellant himself must have been free from negligence proximately contributing to his injury or he is entitled to no damages, granting that Pierce’s fault does not preclude a recovery and that the motorman’s fault was a factor in bringing about the casualty. Few, if any, courts have held that an occupant of a vehicle may entrust his safety absolutely to the driver of a vehicle, regardless of the imminence of danger or the visible lack of ordinary caution on the part of the driver to avoid harm. The law in this state, and in most jurisdictions, is that if a passenger who is aware of the danger and that the driver is remiss in guarding against it, takes no care himself to avoid injury, he cannot recover for one he receives. This is the law not because the driver’s negligence is imputable to the passenger, but because the latter’s own negligence proximately contributed to his damage. Marsh v. Railroad, 104 Mo. App. 577, 78 S. W. 284; Dean v. Railroad, 129 Pa. St. 514; Township of Crescent v. Anderson, 114 Pa. St. 643; Koehler v. Railroad, 66 Hun, 566; Hoag v. Railroad, 111 N. Y. 179; Brickell v. Railroad, 120 N. Y. 290; 2 Thompson, Negligence, sec. 1620; Beach, Con. Neg., sec. 115; 3 Elliott, Railroads, sec. 1174.
[After discussing the pleadings.]
Therefore the question occurs whether, on the testimony for appellant, the court would have been justified in holding him guilty of contributory negligence; and we hold that such a ruling would have been proper. Appellant swore he knew cars were operated east and west on Commercial Street, but did not know there were double tracks on it. The two tracks were right before his eyes as he drove down Commercial Street and as Pierce turned the horse to cross them. He said he could have looked out of the buggy by merely pushing the curtain back with his hand. He was not bound to do this if Pierce’s conduct was of such a character as to induce a reasonably prudent man to think there was no danger in driving across the tracks. But Fechley did not have the right to rely on the precaution taken by Pierce, unless, under the circumstances, a man of ordinary prudence would have relied on it. As we have pointed out, the testimony shows Pierce took no precaution which could be effective. He did not stop at all; nor did he look for a car until the horse was stepping over the south rail of the north track. The two tracks were less than five feet apart and the buggy moved but a few feet after Pierce looked, before the car struck it near the front of the rear wheels. Meanwhile Fechley was leaning back in the buggy, though he must have seen they had crossed the south track and were advancing diagonally on the north one, and, if he was paying any attention to the situation, must have known that a car was likely to come along on that track from the east. Pierce’s behavior was so grossly careless, that Fechley was imprudent in doing nothing personally to insure his safety. The essential fact is that Pierce did not look in time, as Fechley knew, or, in reason, ought to have known. Therefore Fechley should have stopped Pierce or told him to look for a car, or have looked himself, before they had advanced so far into danger. It is palpable from appellant’s own testimony that he was giving no heed to his safety, but either was relying blindly on Pierce, or, for some reason, was not aware of the proximity of the tracks.
[After stating authorities.]