White v. St. Louis & Meramec River Railroad Company

• Decision Date: 28 March 1907
• Citation: 101 S.W. 14,202 Mo. 539
• Parties: PAULINE WHITE v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

101 S.W. 14

202 Mo. 539

PAULINE WHITE v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

March 28, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Walter B. Douglas Judge.

Affirmed.

Jefferson Chandler, T. M. Pierce and S. P. McChesney for appellant.

(1) The court erred in overruling defendant's motion to require plaintiff to elect whether she would stand upon common law negligence or ordinance negligence, because both inconsistent assignments of negligence could not properly be joined in the same count. Clancy v. Railroad, 192 Mo. 640; McHugh v. Railroad, 190 Mo. 85; Behen v Railroad, 186 Mo. 430. (2) The court erred in refusing to give at the close of plaintiff's evidence and at the close of all the evidence instructions in the nature of a demurrer to the evidence asked for by defendant: (a) Because there was no evidence of negligence on the part of defendant. Lee v. Jones, 181 Mo. 299; Feary v Railroad, 162 Mo. 75; Roenfeldt v. Railroad, 180 Mo. 554; Markowitz v. Railroad, 186 Mo. 350; Cogan v. Railroad, 101 Mo.App. 179. (b) Because the evidence shows conclusively that the injuries complained of by plaintiff were due to the continuous, concurring and contemporaneous negligence of deceased directly contributing to the injuries received. Guyer v. Railroad, 174 Mo. 351; Van Bach v. Railroad, 171 Mo. 347; Payne v. Railroad, 136 Mo. 534. (3) The court erred in instructing the jury of its own motion. The instruction was erroneous because there was no evidence of any willful, wanton or reckless conduct on the part of the servants of defendant, and the so-called humanitarian doctrine was neither plead nor put in issue by the proof. Clancey v. Railroad, 192 Mo. 560; Holwerson v. Railroad, 157 Mo. 244; Woods v. Railroad, 188 Mo. 258; Tanner v. Railroad, 161 Mo. 511; Sharp v. Railroad, 161 Mo. 235.

J. L. Minnis for respondent; James M. Rollins and J. A. Rollins of counsel.

(1) (a) Defendant's motion to elect came too late. Secs. 598-602, R. S. 1899; Paddock v. Somes, 102 Mo. 226. (b) The motion was without merit. McCarty v. Rood Hotel Co., 144 Mo. 402; Riska v. Railroad, 180 Mo. 183; Clancy v. Railroad, 192 Mo. 641; Moore v. Railroad, 194 Mo. 13. (c) The assignments of negligence were not inconsistent. Moore v. Railroad, 194 Mo. 1; Latson v. Railroad, 192 Mo. 449. (d) If the court committed error in overruling the motion, the error was cured by submitting only one assignment of negligence to the jury. Gardner v. Crenshaw, 122 Mo. 79. (2) The evidence warranted the court in submitting the cause to the jury. Moore v. Railroad, 144 Mo. 1; Latson v. Railroad, 192 Mo. 449; Riska v. Railroad, supra. (3) The court did not err in giving instruction 3 of its own motion. Cases last above cited. (4) Instruction 3 and defendant's instruction 2 are consistent. Moore v. Railroad, 194 Mo. 12; Moore v. Railroad, 193 Mo. 420; R. S. 1899, secs. 659-865.

LAMM J. Woodson, J., not sitting.

OPINION

LAMM, J.

Pauline White is the widow of Edward White, who was killed while driving a loaded wagon at half past five o'clock p. m. on the 17th day of January, 1902, by a collision with one of defendant's street cars in the city of St. Louis. His widow sued and recovered $ 5,000 statutory damages. After the customary precedent steps, defendant appeals here.

Attending to the pleadings, plaintiff grounds her right of action on the following charges of negligence:

First, that while her husband was lawfully driving a two-horse wagon loaded with lumber, north on Twenty-first street, where it intersects Wash street, and when he was about in the middle of said intersection, the agents and employees of defendant in charge of a certain car going east on Wash street so negligently and carelessly ran, managed and controlled said car as to cause it to run into and against said wagon, overturning the same and so injuring her husband that he died as a result of the injuries sustained.

Second, for a further assignment of negligence it is alleged that defendant's said agents and employees failed to slow up said car as it approached said intersection, which negligence directly contributed to cause and did cause the injury and death of her husband.

Third, plaintiff then pleads an ordinance of St. Louis, known as the Vigilant Watch ordinance, requiring motormen and conductors to keep a vigilant watch for vehicles, either on the track or moving towards it, and to stop the car in the shortest time and space possible on the first appearance of danger to such vehicle, and avers its violation, for that the motorman and conductor of the car doing the injury negligently failed to stop said car within the shortest space and time possible upon the first appearance of danger to plaintiff's said husband; and plaintiff says such negligent violation of said ordinance directly contributed to cause and did cause his injury and death.

Fourth, and for a further assignment of negligence, plaintiff pleads the provisions of an ordinance regulating the speed of street cars in St. Louis at a maximum of eight miles per hour, that the provisions of said ordinance were negligently violated and such violation of said speed ordinance directly contributed to cause and did cause the injury and death of plaintiff's said husband.

The answer tendered the general issue, and pleaded facts which, if true, constituted contributory negligence on the part of deceased.

The reply put in issue the new matter in the answer.

The case came on for trial in February, 1904. It seems the suit was brought prior to April, 1902, and that on the 9th day of April, 1902, defendant filed a motion requiring plaintiff to elect "upon which count of the petition she seeks to recover." Technically there was but one count in the petition, and the different elements constituting the negligence resulting in the death of Edward White were all set forth in that one. There seems to have been at least one prior trial, if not more; and we infer the motion to elect had been overruled at a prior term. It is not shown that any exception was saved to the first action of the court in overruling this motion; but when the final trial came on defendant's counsel undertook to orally "renew" the old motion to elect, and the record shows the court overruled it again and defendant excepted. The old motion, so "renewed" orally at the trial, was as follows:

"Now comes defendant in the above-entitled cause and moves the court to compel plaintiff to elect between the averment of her petition that the alleged injuries to Edward White were caused by the car being run at a rate of speed in excess of eight miles an hour, in violation of an alleged ordinance of the city of St. Louis, and that the alleged injuries to Edward White were caused by the car being run at a rate of speed in excess of eight miles an hour, in violation of an alleged ordinance of the city of St. Louis, and that the alleged injuries to Edward White were caused by said alleged conduct; and the averment that said injuries were caused by the motorman and conductor failing to stop said car in the shortest time and space possible on the first appearance of danger, and for grounds of said motion assigns:

"1. That said allegations are contradictory, inconsistent, and one destroys the other.

"2. That even if the car was in fact going faster than eight miles an hour, and there was in fact an ordinance limiting the speed to eight miles an hour, still if such rate of speed caused the alleged injuries then they could not have been caused by the failure to stop the car in the shortest time and space possible at the first appearance of danger, and if on the first appearance of danger the car could have been stopped in time to prevent the alleged injuries, the said alleged injuries could not have been the result of the speed at which the car was running."

Attending to the facts uncovered below, they are as follows:

Wash street is sixty feet in width and runs east and west. The sidewalk on either side is twelve feet wide, leaving the travelled way for vehicles thirty-six feet from curb to curb. Defendant has two tracks on this street -- the south for east-bound cars, the north for west-bound cars. A block or so west of the place of the accident, Wash street takes a turn, but from the place of the accident to this turn there are no obstructions to vision in the street. The grade from the west to the east is a down grade of two and three-tenths per cent. The south track was so laid in Wash street that its south rail was 10 feet 2 inches from the curb line. The building line, being twelve feet farther to the south, would be twenty-two feet five inches from the south rail. Twenty-first street runs north and south, cutting into and intersecting Wash at an angle of ninety degrees and is of the same width. Anyone standing in Twenty-first, in a continuation of the south building line of Wash, can look west a block. But there was a building at the southwest corner of Twenty-first and Wash. Hence, anyone approaching Wash on Twenty-first going north, would have to be in (or past) this building line to see a block west. But it was in evidence that if a man stood in Twenty-first street, thirty feet south of the south rail, he could see one hundred feet west in the middle of the east-bound track.

So much for the locus in quo.

At the time in hand decedent was driving north on Twenty-first street and approaching its intersection with Wash. He was driving a team of horses hitched to a wagon arranged for hauling wood and lumber. His wagon had no bed, but had a frame suited for plying his business -- that of a teamster -- and on this occasion was heavily loaded with slabs cut in four-foot lengths. His load, as we understand it, was built...