State v. Daues

• Citation: 287 S.W. 603
• Decision Date: 16 August 1926
• Docket Number: No. 26561.,26561.
• Parties: STATE ex rel. ANDERSON v. DAUES et al., Judges.
• Court: United States State Supreme Court of Missouri

287 S.W. 603

STATE ex rel. ANDERSON v. DAUES et al., Judges.

No. 26561.

Supreme Court of Missouri, Division No. 2.

August 16, 1926.

Certiorari to St. Louis Court of Appeals.

Certiorari by the State, on the relation of Robert Anderson, against Charles H. Daues and others, Judges of the St. Louis Court of Appeals, to quash the record of that court in the case of Robert Anderson v. Rolla Wells, Receiver, 273 S. W. 233. Writ of certiorari quashed.

Charles A. Lich, of St. Louis, for relator.

Vance Higgs and T. E. Francis, both of St. Louis, for respondents.

WALKER, P. J.

This is a proceeding in certiorari to quash the record of the St. Louis Court of Appeals in the case of Robert Anderson v. Rolla Wells, Receiver, reported in 273 S. W. 233.

Anderson's action was for damages based on two assignments of negligence. The first was pleaded under a city ordinance (No. 1061), charging negligence in failing to stop a street car at an intersection of two streets to take on awaiting Passengers, by which the street car collided with a truck in which Anderson was riding and caused the injury for which he asks damages; the second assignment was based upon the humanitarian doctrine. At the close of the plaintiff's case a general demurrer was offered by the defendant, which was overruled. The defendant stood upon the demurrer The plaintiff asked, and the court gave, an instruction based on the first assignment of negligence, but asked no instruction on the humanitarian doctrine. At the request of the defendant the court gave three instructions—the first, that plaintiff could not recover, if negligent; the second, that defendant's negligence must be proved by the greater weight of the evidence; and the third, that proof of injury did not authorize a presumption of negligence. There was a verdict for the plaintiff, from which the defendant appealed to the St. Louis Court of Appeals. That court reversed the judgment and remanded the case. Upon the filing of the motion for a rehearing by the plaintiff, the court wrote an opinion thereon, following its principal opinion, and overruled the motion for a rehearing.

I. The Court of Appeals ruled that plaintiff's second assignment, based on the humanitarian doctrine, was specifically withdrawn from the jury by an instruction given by the court at the defendant's request. This left the alleged violation of the ordinance referred to as the only ground on which the plaintiff was entitled to recover. This ordinance embodied a regulation requiring street cars to be stopped at the near side of street intersections when requested, signaled, or motioned by any person standing at such appropriate corner desiring to board such car. The plaintiff, as is held in the opinion of the Court of Appeals, was not one of the persons included within the terms of the ordinance, upon whose signal it became the duty of the motorman to stop the car. The court, therefore, held...