
    JERSEY FARM DAIRY COMPANY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant.
    St. Louis Court of Appeals,
    December 1, 1903.
    1. STREET RAILWAYS: Negligence: Duty of Motorman. Where,; in an action for injuries caused by a collision with a street car, the evidence of the plaintiff tends to show that the motor car which caused the injury approached from the rear, sounding no gong, and that plaintiff’s wagon could have been seen a block away in time to have slackened the speed so as to avoid the collision, a nonsuit will not be ordered.
    2. -: Instructions: Sounding Gong. In an action for injuries caused by a rear-end collision of a motor car with plaintiff’s wagon, ft is error to instruct the jury that the plaintiff is entitled to recover if, while he was driving along or attempting to leave the track, the motorman saw, or by the exercise of ordinary care could have seen, the wagon upon the track in time to warn the plaintiff and enable him to leave the track, or in time to bring his said car to a stop, before a collision, by the use of ordinary skill and diligence, without the further hypothesis that the motorman did not warn the plaintiff of his approach, that is, that the motorman not only had time to warn him, but failed to do so, and such failure was the proximate cause of the injury.
    Appeal from St. Louis City Circuit Court. — Eon.J.B. Kinealy, Judge.
    Reversed and remanded.
    
      Sears Lehmann with Geo. W. Easley for appellant;
    (1) The court erred in giving instruction No. 1 for the plaintiff. This instruction singles out certain facts and tells the jury if they find these facts to be true, then as a matter of law, they shall find for the plaintiff. Such instructions are erroneous. Chappell v. Allen, 38 Mo. 213; Rose v. Spies, 44 Mo. 20; Bank v. Currie, 44 Mo. 91; Meyer v. Eailroad, 45 Mo. 137; Koenig v. Life Assn., 3 Mo. App. 596; Schaffer v. Lealy, 21 Mo. App. 110. (2) An instruction which ignores a defense on which there is some evidence is erroneous. Laughlin v. Gerardi, 67 Mo. App. 372; Cameron v. Hart, 57 Mo. App. 142; Carroll v. Eailroad, 60 Mo. App. 465; Malt-man v. Harris, 65 Mo. App. 127; Sheedy v. Streeter, 70 Mo. 679; Hoffman v. Parry, 23 Mo. App. 20; Hohstadt v. Daggs, 50 Mo. App. 240; Wood Medicine Co. ,v. Bobbst, 56 Mo. App. 427; Clark v. Hammerle, 27 Mo. 55; Sawyer v. Eailroad, 37 Mo. 240; Hayner v. Churchill, 29 Mo. App.. 276; Griffith v. Conway, 45 Mo. App. 574.
   GOODE, J.

— Action for injuries to a team of horses, harness, wagon and contents of the wagon caused by a rear-end collision with an electric car. While plaintiff’s employee, John Walton, was driving one of plaintiff’s milk wagons on November 24, 1902, the wagon was hit by a car of the Transit Company. It was about five o ’clock of a drizzly morning that the accident occurred. Walton had driven north on Eleventh street to Chouteau avenue, turned west on Chouteau to Twelfth street, then again north on Twelfth intending to leave that street and go west on Gratiot. He had reached Gratiot street and was in the act of turning into it when the car hit the wagon behind, inflicting the damages complained of in this case and knocking Walton, the driver, into unconsciousness. Walton’s testimony is that he was driving partly on and partly off the north track in a trot; that twenty feet back of where he was struck he looked to the rear before he turned westward, to see if a car was coming but saw no car, and as he was turning west the crash came. Three passengers on the car testified they heard no gong nor any sound of brakes prior to the collision ;• that the car was going at a moderate speed — five or six miles an hour. It stopped immediately after hitting the wagon, which was then faced west; the morning was dark and rainy, but a wagon could be seen easily a block away.

Tbe motorman testified he followed tbe same route Walton bad, running west to Chouteau and then north on Twelfth; that bis speed was six miles an hour and tbe grade downward; that be could see about a block ahead; saw tbe wagon of tbe dairy company as soon as be turned into Twelfth street; it was then five feet outside tbe track on tbe right band; when tbe car drew near, tbe team and wagon turned westward and crossed the track; that be immediately rang his bell, applied tbe brake and reversed tbe power, but was unable to stop tbe car before it crashed into tbe vehicle.

We can order no nonsuit in this case as tbe defendant insists we should; for, accepting tbe testimony for tbe plaintiff as true, the wagon was visible tbe length of the block on tbe same track tbe car was running on, and tbe motorman might have stopped or slackened speed and thus have avoided tbe collision. Klockenbrink v. Railroad, 81 Mo. App. 351; Shanks v. Traction Co., 101 Mo. App. 702, 74 S. W. 386; Nolle v. Transit Co., 100 Mo. App. 367, 73 S. W. 907. Tbe circuit court did right to submit tbe case to tbe jury; but erred, we think, in this instruction given at tbe instance of plaintiff:

“If tbe jury find and believe from tbe evidence that a car of defendant in charge of one of its motormen, ran into a wagon of plaintiff, while tbe driver of said wagon was driving aloug Twelfth street and partly in defendant’s car track or while be was attempting to leave said track with bis team, tbe jury will return a verdict for plaintiff, provided tbe jury further find and believe from tbe evidence that tbe motorman saw, or by tbe exercise of ordinary care and diligence could have seen, tbe wagon upon tbe track in time to have warned said driver and enabled him to drive bis team off, or in time to have brought said car to a stop before a collision, by tbe use of such skill, diligence and'care as a person of ordinary prudence would exercise under tbe same circumstances, and that the driver of plaintiff’s wagon was at the time exercising a like degree of care to avoid a collision.”

It will be seen that the foregoing instruction authorized a verdict for the plaintiff if the jury found the motorman, by the exercise of reasonable care, could have noticed the wagon in time to warn the driver and enable the latter to drive off, or in time to stop his car before a collision.

The first hypothesis was, to say the least, incomplete. It is not enough to justify a recovery that the motorman saw, or could have seen, the wagon on the track in time to warn the driver; but it must appear that he did not warn him. That is to say, the motorman must not only have had time to sound the warning, but must have neglected to do so, and the neglect must have been the proximate cause of the accident.. The better way to give the charge is to leave it to the jury to say whether the defendant’s servant was guilty of failing to clang the gong or give warning by whatever means he could, and whether that negligent omission was the proximate cause of the catastrophe.

It is to be remarked, further, that said instruction conflicted with two given for the defendant which told the jury, in effect, that the defendant was not liable if its servants in charge of the car, as soon as they saw, or might have seen, plaintiff’s wagon in a position of danger, used such care as a person of ordinary prudence would have used, in like circumstances, to stop the car. The instructions given for the defendant accepted the theory that the only ground of recovery was failure to stop the car as soon as possible after seeing the vehicle in an exposed condition; while plaintiff’s instructions hypothecated also a failure to give warning of the approach of the ear.

The judgment is reversed and the cause remanded.

Bland, P. J., and Beyburn, J., concur.  