State v. Daues

Decision Date21 May 1926
Docket NumberNo. 26457.,26457.
Citation284 S.W. 463
PartiesSTATE ex rel. GOESSLING v. DAUES et al., Judges.
CourtMissouri Supreme Court

Mark D. Eagleton, John F. Clancy, E. J. Hullverson, and Harry S. Rooks, all of St. Louis, for relator.

Bryan, Williams & Cave, of St. Louis, for respondents.

HIGBEE, C.

On the application of relator we issued our writ of certiorari to review the opinion and judgment of the St. Louis Court of Appeals reversing and remanding a judgment of the circuit court of the city of St. Louis in favor of the relator against Excelsior Press Brick Company for damages for personal injuries sustained by relator in consequence of a collision between a Ford car driven by her husband, in which she was riding, and a truck driven by defendant's employee, on a slippery hard-surfaced street in the city of St. Louis.

The following excerpts from the opinion of the learned Court of Appeals (270 S. W. 390), will suffice for a statement of the facts and rulings complained of (italics ours):

"At the time of the accident, the Ford car was ascending the grade and the truck was descending. The truck was being driven down grade on the south side of the street but near the center. The Ford car was traveling at the rate of about 12 miles per hour, and the truck about 18 miles per hour. When the truck got within two or three lengths away from the car in which plaintiff was riding, the rear of the truck skidded around to the north making a circle, and the rear right wheel of the truck hit the front wheel of the Ford. * * * The driver of the truck, on the part of defendant, testified that the truck skidded, but that it did not strike the car in which plaintiff was riding. * * * On cross-examination of defendant's witness, Wright, who was the driver of the truck, plaintiff's counsel asked him if he had skid chains with him, to which he answered: `Yes, sir.' Counsel for defendant objected, after this question was asked and answer given, to the introduction of this testimony, on the ground that it was not pleaded. The court overruled this objection, and defendant excepted, after which witness was examined at some length with respect to why he had not put skid chains on. There were no further objections made in the testimony, nor any motion made to strike out what had been introduced. In addition to the instructions heretofore referred to as given in the case [on the measure of damages], the defendant requested the court to give the following instruction, which the court refused to give:

"`The court instructs the jury that if you find and believe that the injuries, if any, to plaintiff were directly and solely caused by the fact that the defendant's automobile was not equipped with skid chains, then your verdict must be for the defendant.' * * *

"If plaintiff by proper instruction had requested the court to define the issues submitted to the jury for their consideration, the refusal of this instruction requested by defendant would doubtless not have been error. But no act of negligence in failing to have the truck equipped with skid chains was pleaded in the petition, and, therefore, plaintiff could not base her right to recover upon this act of negligence, even if it had been admissible for other reasons, and defendant was entitled to have the jury so informed in view of the fact that, the evidence was before them and no instruction had been given on behalf of the plaintiff defining the issues. If the failure to have skid chains was the sole cause of the injury, then plaintiff could not recover, because this was not alleged as a ground of recovery. There was much evidence introduced tending to show that the collision was caused by the failure on...

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34 cases
  • Kimberling v. Wabash Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 30 Julio 1935
    ......436; Kern v. Payne, 65 Mont. 325, 211 Pac. 767, certiorari denied, 261 U.S. 617; Johnson v. Terminal Railroad Assn., 8 S.W. (2d) 891; Ill. State Trust Co. v. Railroad Co., 319 Mo. 608, 5 S.W. (2d) 368, certiorari denied, 278 U.S. 623; Rittenhouse v. Ry. Co., 299 Mo. 199, 252 S.W. 945; Martin ...(2d) 926; Kuhlman v. Water, Light & Transit Co., 307 Mo. 636, 271 S.W. 788; Stanton v. Jones, 59 S.W. (2d) 648; State ex rel. Goessling v. Daues, 314 Mo. 287, 284 S.W. 463; Goodwin v. Eugas, 290 Mo. 684, 236 S.W. 50; State ex rel. v. Ellison, 223 S.W. 673; Meily v. Railroad Co., 215 Mo. 597, ......
  • Propst v. Capital Mut. Assn.
    • United States
    • Court of Appeal of Missouri (US)
    • 9 Enero 1939
    ......James, Jr. and L.F. Kinder for appellant. .         (1) (a) Respondent's petition is fatally defective because it fails to state facts sufficient to constitute a cause of action; it fails to state the essential averments to entitle respondent to recover; that notice of accident ......
  • Telanus v. Simpson
    • United States
    • United States State Supreme Court of Missouri
    • 31 Diciembre 1928
    ......Moon v. Transit Co., 247 Mo. 227; Dyer v. Building Contr. Co., 258 S.W. 48; Courter v. Mercantile Co., 266 S.W. 340; State ex rel. Bush v. Sturgis, 281 Mo. 598; Mullery v. Tel. Co., 180 Mo. App. 128; Rohr v. Gas Lighting Co., 67 So. 361; Cowan v. Brick Co., 222 S.W. 926; ...v. Ellison 270 Mo. l.c. . 12 S.W.2d 930 . 653; State ex rel. v. Daues, 284 S.W. 463, 464.] These instructions are conflicting, and clearly the giving of Instruction 4 was prejudicial to defendants. . ......
  • Sloan v. Polar Wave Ice & Fuel Co.
    • United States
    • United States State Supreme Court of Missouri
    • 30 Julio 1929
    ......State ex rel. v. Daues, 284 S.W. 463; Nahorski v. Elec. Term. Ry. Co., 274 S.W. 1025; Phillips v. Am. Car & Fdy. Co., 274 S.W. 963. (e) Furthermore, the ......
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