137 S.W. 1003 (Mo.App. 1911), Mathews v. Metropolitan Street Ry. Co.

Citation:137 S.W. 1003, 156 Mo.App. 715
Opinion Judge:JOHNSON, J.
Party Name:EUNICE E. MATHEWS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
Attorney:John H. Lucas and Charles A. Loomis for appellant. Harkless, Crysler & Histed for respondent.
Case Date:May 29, 1911
Court:Court of Appeals of Missouri
 
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Page 1003

137 S.W. 1003 (Mo.App. 1911)

156 Mo.App. 715

EUNICE E. MATHEWS, Respondent,

v.

METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 29, 1911

Appeal from Jackson Circuit Court.--Hon. H. L. McCune, Judge.

Judgment reversed.

John H. Lucas and Charles A. Loomis for appellant.

(1) The court erred in refusing to give a peremptory charge in favor of the defendant. There was no evidence to authorize a verdict on either specification of negligence. Nellis, Street Railroad Accident Law, pp. 59, 183; Fuchs v. St. Louis, 133 Mo. 201; Fuchs v. St. Louis, 167 Mo. 645; Aldrich v. Transit Co., 101 Mo.App. 90; Sherman & Redfield Neg. (4 Ed.), sec. 59; Lee v. Jones, 181 Mo. 298; Glasscock v. Dry Goods Co., 106 Mo.App. 663. (2) The court erred in admitting incompetent evidence and refusing to admit competent evidence. Incompetent. Gates v. Railroad, 44 Mo.App. 488; Fullerton v. Fordgee, 144 Mo. 519; Culbertson v. Railroad, 140 Mo. 35; Mammerberg v. Railroad, 62 Mo.App. 563; Ruschenberg v. Railroad, 161 Mo. 70; Heinzle v. Railroad, 182 Mo. 528. (3) In giving and refusing instructions manifest error was committed. They were unsupported by evidence, ignored the issues, assumed the facts and were misleading. Ryan v. McCully, 123 Mo. 646; Carroll v. Carroll, 110 Mo. 557; Woods v. Campbell, 110 Mo. 572; Jordan v. Hannibal, 87 Mo. 673; Albert v. Besel, 88 Mo. 150; Heinzle v. Railroad, 182 Mo. 559. (4) In overruling motion for a new trial. Whitsett v. Ranson, 79 Mo. 260; Lennon v. Railroad, 94 S.W. 975; Gilkeson v. Railroad, 222 Mo. 202; Casey v. Transit Co., 205 Mo. 721; Aley v. Railroad, 211 Mo. 481.

Harkless, Crysler & Histed for respondent.

(1) The defendant company had no right to maintain the standard or post in such proximity to its moving cars as to endanger persons who in the exercise of due care should attempt to board said cars. Seymour v. Citizens Ry. Co., 114 Mo. 266; Kreimelmann v. Jourdan, 107 Mo.App. 64; Street Ry. Co. v. Polkey, 106 Ill.App. 98; Kird v. New Orleans, etc., Ry., 109 La. Rep. 525, 33 So. 587. (2) The question of the defendant's negligence in maintaining the standard or post was for the jury. Paden v. Van Blarcom, 100 Mo.App. 185, 194; Kreimelmann v. Jourdan, 107 Mo.App. 64; Withee v. Somerset Traction Co., 98 Me. 61, 56 A. 204; Young v. Oil Co., 185 Mo. 634; Street Ry. Co. v. Polkey, 106 Ill.App. 98. (3) The mere facts (if true) that similar casualties were infrequent or had never occurred, or that the standard had been maintained in this position for a considerable length of time not controlling on this issue. Rogers v. Meyerson Printing Co., 103, Mo.App. 686, 691; Brunke v. Tel. Co., 115 Mo.App. 36. (4) The defendant having by its own instructions submitted to the jury the question of defendant's negligence cannot repudiate that theory in this court. Walker v. Robertson, 107 Mo.App. 571; Hewitt v. Price, 99 Mo.App. 666. (5) The conduct of the defendant's conductor is to be tested by that of an ordinarily prudent man under a similar situation. This included reasonable presence of mind. The defendant is not to be excused from the circumstance that in the excitement of the moment the conductor lost his head. It was a question for the jury none the less. Howell v. Lansing City Elec. Ry. Co., 136 Mich. 432, 99 N.W. 406; Barry v. Railroad, 119 Ia. 62 95 N.W. 229. This was the theory upon which defendant's own instruction submitted the question to the jury. (6) All of the instructions given by the court to the jury are to be read in connection with each other. They are to be considered as a whole. Montgomery v. Railroad, 181 Mo. 508. (7) The defendant's instruction upon the issue of Mathew's contributory negligence being abstract declarations of law, it was not error for the court, at the instance of the plaintiff, to give a mere specific instruction applying the law to the facts as she claimed them to be by the evidence produced at the trial. Devitt v. Railroad, 50 Mo. 302; Tyler v. Hall, 106 Mo. 313; Stewart v. Sparkman, 75 Mo.App. 106.

OPINION

Page 1004

[156 Mo.App. 718] JOHNSON, J.

Plaintiff, the widow of George Mathews, deceased, sued to recover damages for the death of her husband which she alleges was caused by the negligence of defendant. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $ 4500 and defendant appealed to this court. We certified the cause to the Supreme Court but that...

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