Senn v. Southern Railway Company
Decision Date | 15 October 1896 |
Citation | 36 S.W. 367,135 Mo. 512 |
Parties | Senn v. Southern Railway Company, Appellant |
Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Affirmed.
Lubke & Muench for appellant.
(1) The third amended petition sets out two distinct grounds of action: One on the failure of the driver to exercise ordinary care and the other upon the ordinance. (2) A city ordinance can not change the common law liabilities of a civil nature between private parties, nor fix a new standard of negligence. Henry v. Sprague, 11 R. I. 456; Railroad v. Erwin, 89 Pa. St. 71; Van Dyke v Cincinnati, 1 Disney, 532; Flynn v. Canton Co., 40 Md. 612; Kirby v. Boylston, 14 Gray, 242; Jenks v. Williams, 115 Mass. 217. (3) A verdict based on evidence which is only conjectural or on statements which are incredible, will be set aside. It follows that instructions which authorize a verdict based only on such evidence or statements, must be erroneous. Moore v Railroad, 28 Mo.App. 622; Peck v. Railroad, 31 Mo.App. 125; McCarthy v. Fagin, 42 Mo.App. 619; State v. Burgdorf, 53 Mo. 65; Spohn v. Railroad, 87 Mo. 74; Hunt v. Railroad, 89 Mo. 607. (4) Instructions which are confusing or misleading must not be given. If they leave out important features in the evidence or single out particular facts and give them prominence they are misleading and erroneous. Chaney v. Ins. Co., 62 Mo.App. 45; McFadin v. Catron, 120 Mo. 274; Railroad v. Stock Yards Co., 120 Mo. 559.
Dodge & Mulvihill for respondent.
(1) There is but one cause of action stated in the third amended petition as interlineated, and on which the case was tried the last two times. It is under the first clause of section 2 of the damage act, section 4425, Revised Statutes, 1889. Philpott v. Railroad, 85 Mo. 164; Czezewzka v. Railroad, 121 Mo. 207; Senn v. Railroad, 124 Mo. 621. (2) Section 2 of the damage act (4425) is both penal and compensatory. Philpott v. Railroad, 85 Mo. 164; Crumpley v. Railroad, 98 Mo. 34. (3) The appellant can not be heard to complain in this court of something to which it did not object in the trial court by appropriate motion. R. S. 1889, sec. 2302; Sweet v. Maupin, 65 Mo. 65; Hubbard v. Queensbury, 32 Mo.App. 459; Hanniford v. City of Kansas, 103 Mo. 172. (4) Appellant can not be heard to complain of respondent's instructions, when the instructions asked and given at its own request announce the same doctrine. Holmes v. Braidwood, 82 Mo. 610; Hazell v. Bank, 95 Mo. 66. First. And this is true even when the theory is an incorrect one. Thorpe v. Railroad, 89 Mo. 666. Second. A judgment will not be reversed for every obscurity or inaccuracy of expression that an instruction may disclose. To warrant a reversal there must be positive error, materially affecting the merits of the action. R. S. 1889, sec. 2303; Barry v. Railroad, 98 Mo. 62; Hanniford v. City of Kansas, 103 Mo. 172. (5) The ordinance was admissible, being properly pleaded. Fath v. Railroad, 105 Mo. 537; Senn v. Railroad, 124 Mo. 621.
Brace, P. J., absent.
This is the third appeal. The suit was originally prosecuted in the names of Christian Senn and his wife to recover damages for the death of their infant son Charles, who was killed by being run over by a car of defendant, street railway company, in the city of St. Louis.
Pending the first appeal the wife died and the suit was continued in the name of Christian Senn, the father of the child. On the second appeal the judgment was reversed and a retrial ordered. The case was again tried and resulted in a verdict for plaintiff and defendant again appealed. Pending this appeal Christian Senn has died and the suit has been revived and is now prosecuted in the name of his administrator.
The pleadings and evidence are substantially the same as upon the former appeals which will be found reported in 108 Mo. 142, and 124 Mo. 621.
A statement of the facts accompanied the first opinion, which need not be repeated.
An ordinance of the city, which had been accepted by defendant, required the conductor and driver of each car to keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving toward it, and on the first appearance of danger to such persons or vehicles to stop the car within the shortest time and space possible.
The petition contained these charges:
On the question of the contributory negligence of the parents of the child the court gave to the jury these two instructions, the first at the request of plaintiff, and the second at that of defendant.
On the measure of damages the court gave this instruction:
"If the jury find from the evidence that the plaintiff is entitled to recover, you will assess his damages in the sum of five thousand ($ 5,000) dollars."
A verdict and judgment was rendered for plaintiff for $ 5,000 and defendant appealed.
I. Counsel argue with much ingenuity and force, and with much plausibility also, that plaintiff states, and undertakes to recover on two causes of action, one for negligence of the driver in managing the mules and car, and the other for failure to observe the city ordinance mentioned in the statement. They insist that the former is grounded upon section 4425, Revised Statutes, 1889, which allows a recovery of $ 5,000 in the nature of a forfeiture; while the other is based upon sections 4426 and 4427 of said statutes, and allows a recovery of compensatory damages not exceeding $ 5,000. On these assumptions it is claimed that the direction to the jury to assess the damages at $ 5,000 was error.
Defendant's position would be invulnerable if two causes of action were stated, one under a section allowing $ 5,000 absolutely, and the other under a section allowing compensatory damages...
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