
    HENRY W. WELLAND, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY, Respondent.
    Kansas City Court of Appeals,
    June 13, 1910.
    1. PRACTICE: Instructions: Common Error: Humanitarian Doctrine. At the request of plaintiff, who had a cause'of action, under the humanitarian doctrine, the court gave an instruction authorizing a finding for plaintiff if the jury found certain facts to be true. This instruction required the jury to find among other things that plaintiff “was not guilty of any negligence directly contributory to his injuries.” In such case plaintiff waived his right to complain that defendant’s instructions authorized a verdict for defendant if plaintiff was guilty of negligence directly contributing to cause his injuries.
    2. -: -: -. Defendant’s instructions in this case did not erroneously state the law with reference to the question of contributory negligence.
    
      Appeal from Jackson Circuit Court. — Hon. James H. Blover, Judge.
    Affirmed.
    
      Botsford, Deatherage & Oreason for appellant.
    (1) The court erred in giving defendant’s instructions Nos. 2 and 3. Rapp v. Transit Co., 190 Mo. 144; Hilz v. Railroad, 101 Mo. 36; Fielder v. Railroad, 107 Mo. 645; Kellny v. Railroad, 101 Mo. 67; Hanlon v. Railroad, 104 Mo. 389; Morgan v. Railroad, 159 M'o. 262; Klockenbrink v. Railroad, 172 Mo. 685. (2) Tbe court erred in giving defendant’s instruction No. 4. Flucks v. Railroad, 122 S. W. Rep. 348; — Mo.-; Glaser v. Rotbcbilds, 221 Mo. 180; Coffey v. City, 186 Mo. 583; Felver v. Railroad, 216 Mo. 195; Ency. PI. and Pr., pp.-116 and 190, and cases cited.
    
      John H. Lucas and Frank Q-. Johnson for respondent.
   JOHNSON, J.

This is an action to recover damages for personal injuries alleged to have been caused by tbe negligence of defendant. Tbe jury returned a verdict for defendant and tbe cause is before us on tbe appeal of plaintiff.

Tbe injury of which complaint is made occurred early in the morning of July 27, 1906, on Walnut street between Fifth street and Missouri avenue in Kansas City. A double track street railway line is operated by defendant along the middle of Walnut street, the course of which is north and south. The east track is used by north-bound cars and.one of such cars inflicted the injury. The block between Fifth street and Missouri avenue is largely occupied by commission merchants. Plaintiff, a retail grocer, had been purchasing supplies that morning. He had backed his wagon — a one-horse light delivery wagon — to the curb on the east side of Walnut street in front of a commission house numbered 511. There was a row of wagons backed to the curb and plaintiff’s wagon was one of this row. The horses faced west and their heads were so close to the east car track that they had to turn them aside when a car passed. As a rule, cars were run slowly past the horses, but witnesses for plaintiff testify that on the occasion under consideration, the car ran faster than usual. Plaintiff had finished loading and started forward across the track. His evidence is to the effect that just before starting he looked south and saw the car at Missouri avenue, one hundred and fifty or two hundred feet away, moving slowly. Plaintiff testified: “I got on the track when I saw the car coming. I was on the track with the front wheels of the wagon and the horse. The front wheels had gone out. I got on the first rail and the horse was on the track, too. It was a small horse and a big load and a lazy horse and I had to whip the horse. I couldn’t get him along very well, and I couldn’t back him because I had too big a load and it was all done so quick I couldn’t get off the track.” The car struck the wagon on the front wheel with enough force to topple plaintiff off the seat into the fender of the car. Plaintiff states that instead of running slowly, the motorman increased the speed of the car and bore down on him at higher speed than that usually maintained by cars while running in that block.

Summarized, the evidence of plaintiff tends to show that the motorman negligently ran the car at a dangerous rate of speed, and further, was negligent in not stopping after he saw or should have seen that plaintiff was in danger. The evidence of defendant tends to show that- the car was being run slowly and that plaintiff negligently drove out from the row of wagons and into danger when the car was so close that nothing- could he done by the motorman to avoid the collision.

The petition pleads ordinary negligence and negligence under the humanitarian rule as the proximate causes of the injury and, as we have shown, the evidence of plaintiff tends to sustain both charges, while the evidence of defendant exculpates the motorman from blame and throws the sole responsibility for the injury on plaintiff. At thé request of plaintiff, the court submitted the issues of negligence to the jury in the following instruction:

“The court instructs the jury that if you believe from the evidence that on or about the 27th day of July, 1906, plaintiff was on Walnut street, near the junction of Walnut street with Fifth street in Kansas City, Missouri, with his wagon and horse hitched thereto, and that defendant, Metropolitan Street Railway Company, on said date owned and operated, through its agents, electric cars along said Walnut street from Thirteenth street north to Fifth street in said Kansas City, and if you further believe from the evidence that said cars were operated and moved on and along tracks OAvned by defendant over said portion of said Walnut street by means of electric power by motormen in the employ of said defendant, and if you believe from the evidence that on said date plaintiff Avhile in his said Avagon was driving- across said Walnut street, and that after his said horse and wagon came upon the north-bound track owned by defendant and on said Walnut street near said Fifth street, and Avhile said horse and wagon were still on said northbound track, defendant, by and through its motorman in charge of one of its north-bound cars on said northbound track caused said car to approach plaintiff’s said horse and wagon while plaintiff was in said wagon, and if you further believe from the evidence that said motorman saw, or by the exercise of ordinary care could have seen, plaintiff’s said horse and wagon and plaintiff thereon on said track in front of said north-bound car in a perilous position and in danger of being struck by said car, in time to have stopped said car by the exercise of ordinary care before the said car collided with plaintiff’s said wagon, and if you further find from the evidence that defendant’s said motorman did fail to stop said car after he saw, or by the exercise of ordinary care could have seen, plaintiff and plaintiff’s horse and wagon on said track in front, of said car in a perilous position and in danger of being struck by said car, and that by reason of said negligent act of said motorman, if you find such to be the fact, said car collided with plaintiff’s said wagon with such force as to throw plaintiff therefrom upon the fender of said car, and that as a result thereof plaintiff was severely injured in his back, neck and spine and in his left leg and his right wrist and thereby rendered sick and sore and lame and unable to do the work usually performed by him as a grocer, and if you further find from the evidence that plaintiff was not guilty of any negligence directly contributing to said injuries, if any, then you are instructed that your verdict should be for the plain-' tiff.”

The only errors assigned by plaintiff relate to the second, third and fourth instructions given to the jury at the request of defendant, as follows:

“2. The court instructs the jury that the degree of care to be exercised by plaintiff and defendant was exactly the same. The plaintiff was bound to exercise ordinary care to avoid being injured; and the defendant was bound to exercise ordinary care to avoid injuring plaintiff, and by ‘ordinary care’ as used in these instructions is meant such care as would be exercised by an ordinarily careful and prudent person, under the same or similar circumstances.
“3. The court instructs the jury that it is the duty of a person before driving upon a street car track over which street cars are being operated to use ordinary care to ascertain the approach of cars and avoid injury therefrom, and if a person fails to exercise snch care and snch failure, if any, on his part, either directly causes or directly contributes to his injury, then such person is himself guilty of negligence, as defined in these instructions.
“4. The court instructs the jury that if you find and believe from the evidence that plaintiff’s horse and wagon were standing still in the street facing the car track, at a safe distance therefrom, and that the motorman on defendant’s car saw the plaintiff’s horse and wagon in such position, he had a right to presume that plaintiff would remain in a safe position, if he was in such position, and that he would not drive or attempt to drive upon the defendant’s car tracks so close in front of an approaching car as to be in danger of being struck by such car, and if you find and believe from the evidence that plaintiff did so drive upon said car tracks and that after it was apparent that he was about to so drive upon said tracks in front of an approaching car, the motorman thereof saw, or by the exercise of ordinary care could have seen that plaintiff was apparently about to so drive upon said tracks, he then used ordinary care to avoid colliding with plaintiff’s wagon, your verdict will be for the defendant.”

The objection to the second instruction is that it ignores the issue of negligence under the humanitarian rule. The main authority cited by plaintiff in support of this contention is the case of Rapp v. Transit Co., 190 Mo. 144. There the defendant asked an instruction directing a verdict for defendant on the hypothesis that the plaintiff had been guilty of contributory negligence. The trial court modified the instruction by adding the clause “provided you further find that the defendant by the exercise of ordinary care and prudence could not have avoided the collision after it discovered plaintiff’s perilous position.” There was evidence tending to prove the fact submitted in the modification, and the Supreme Court field that no error liad been committed by the court in thus modifying the instruction. To tbe same effect was our decision in tbe recent case of Nipper v. Railway, 129 S. W. 439.

But there are two sufficient reasons for bolding tbe present instruction vitally different from those considered in tbe cases cited. First, tbe instruction now being considered does not direct a verdict and, therefore, it does not tell tbe jury that contributory negligence would be a defense to “last chance” negligence. It merely announces tbe fundamental rule of law that plaintiff, to be without fault, was required to exercise ordinary care for bis own safety. It would have been error bad tbe instruction proceeded to say that tbe omission of plaintiff to observe such care would prevent bis recovery in any event but defendant avoided such error and we find tbe instruction to be free from prejudicial error. Second, plaintiff’s own instruction predicates bis right to recover solely on tbe hypothesis that be was not guilty of contributory negligence and thereby plaintiff voluntarily eliminated “last chance” negligence from tbe debatable issues of fact and planted bis cause on' ordinary negligence alone. [Rectenwald v. Railway, 121 Mo. App. 595.]

No rule of practice is better settled that that which holds a plaintiff to tbe theory on which be submits bis case to tbe jury. He is not permitted to blow hot and cold, to complain of tbe defendant for adopting bis own theory of the issues. Though as an abstract proposition we bad found tbe instruction erroneous in tbe respects'claimed by plaintiff, yet we would bold tbe error common to both parties and, therefore, non-prejudicial.

What we have said sufficiently answers tbe other objections to defendant’s instructions. Reasonably interpreted, instructions numbered 2 and 3 do not assume tbe existence of controverted material facts. Tbe case was fairly tried and submitted to tbe jury.

Tbe judgment is affirmed.

All concur.  