103 S.W. 1146 (Mo. 1907), Casey v. St. Louis Transit Company

Citation:103 S.W. 1146, 205 Mo. 721
Opinion Judge:VALLIANT, J.
Party Name:CASEY et ux. v. ST. LOUIS TRANSIT COMPANY, Appellant
Attorney:Boyle, Priest & Lehmann, Geo. W. Easley, Glendy B. Arnold and Geo. T. Priest for appellant. H. A. Yonge, Ernest E. Wood and Brown, Harding & Brown for appellant.
Case Date:July 02, 1907
Court:Supreme Court of Missouri
 
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Page 1146

103 S.W. 1146 (Mo. 1907)

205 Mo. 721

CASEY et ux.

v.

ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri

July 2, 1907

Transferred from St. Louis Court of Appeals.

Reversed and remanded.

Boyle, Priest & Lehmann, Geo. W. Easley, Glendy B. Arnold and Geo. T. Priest for appellant.

H. A. Yonge, Ernest E. Wood and Brown, Harding & Brown for appellant.

OPINION

[205 Mo. 722] In Banc

VALLIANT, J.

Plaintiffs' minor son was struck and killed by a street car of defendant and they bring this suit to recover damages.

The petition charges negligence on the part of defendant's servants in their management of the car and also negligence on the part of defendant corporation in the matter of equipment of the car. These different alleged acts of negligence were all embraced in one count. The petition concluded with a statement that in the death of their child they were damaged in the sum of four thousand five hundred dollars, for which sum they asked judgment. At the trial there was evidence tending to sustain the charge of negligence on the part of the servants, but none of negligence on the part of the corporation itself, and the instructions given at the request of the plaintiffs were predicated on the former [205 Mo. 723] and not on the latter. The court instructed the jury that if they should find for the plaintiffs they should assess their damages at four thousand five hundred dollars. There was a verdict for the plaintiffs for that sum, and judgment accordingly. The defendant appealed to the St. Louis Court of Appeals where the judgment was reversed and the cause remanded, but the judges of that court deeming the decision in conflict with a decision of the Kansas City Court of Appeals, the cause was certified to this court.

The vital question in the case is, can the plaintiffs avail themselves of the right of action given in section 2864, Revised Statutes 1899, and yet by their petition limit their recovery to an amount less than the sum of five thousand dollars, which that section specifies that the defendant "shall forfeit and pay for every person or passenger so dying?" The question is one of more than private personal interest to the parties to this suit, because it involves the question of the right of the plaintiff in such a suit to choose between the Court of Appeals and the Supreme Court to which an...

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