38 S.W. 921 (Mo. 1897), Winkler v. St. Louis Basket and Box Company

• Citation: 38 S.W. 921, 137 Mo. 394
• Opinion Judge: Macfarlane, J.
• Party Name: Winkler, Administrator, Appellant, v. St. Louis Basket and Box Company
• Attorney: J. Hugo Grimm for appellant. J. D. Johnson for respondent.
• Judge Panel: Macfarlane, J. Barclay, P. J., concurs in the result.
• Case Date: February 09, 1897
• Court: Supreme Court of Missouri

Page 921

38 S.W. 921 (Mo. 1897)

137 Mo. 394

Winkler, Administrator, Appellant,

v.

St. Louis Basket and Box Company

Supreme Court of Missouri, First Division

February 9, 1897

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein, Judge.

Affirmed.

J. Hugo Grimm for appellant.

(1) The trial court had no right to give a peremptory instruction for defendant at the close of the whole case on the ground that defendant's evidence conclusively established either want of negligence on its part or contributory negligence on the part of Louis Winkler. If defendant's evidence tended to show a different state of facts than that shown by plaintiffs, it was for the jury to say whether they believed defendant's witnesses, although plaintiff offered no evidence in rebuttal. In no event was the jury bound to believe any witnesses whether plaintiff's or defendant's. Hence, if the motion for a new trial was sustained on this theory the trial court clearly erred. Schroeder v. Railroad, 108 Mo. 322; Wolff v. Campbell, 110 Mo. 114; Gregory v. Chambers, 78 Mo. 298. (2) Assuming that defendant's evidence did not in any wise help out plaintiff's case, the question is, did plaintiff's evidence make a case sufficient to entitle him to the opinion of the jury on the question of defendant's negligence, and his own freedom from contributory negligence. The action of the court in awarding a new trial because of the refusal to instruct peremptorily for defendant at the close of the entire case, would indicate that the trial court adhered to its ruling that plaintiff's evidence made a case entitling her to go to the jury. There was evidence of negligence on the part of defendant and no such evidence of contributory negligence as warranted an instruction of nonsuit at the close of plaintiff's case. Buesching v. Gaslight Co., 73 Mo. 231; Settle v. Railroad, 127 Mo. 341; Swadley v. Railroad, 118 Mo. 268; Hamilton v. Rich Hill Mining Co., 108 Mo. 374; Mahaney v. Railroad, 108 Mo. 201; O'Mellia v. Railroad, 115 Mo. 205; Williams v. Railroad, 109 Mo. 475; Henry v. Railroad, 109 Mo. 488; Huhn v. Railroad, 92 Mo. 440; Soeder v. Railroad, 100 Mo. 673; Hughes v. Fagin, 46 Mo.App. 42; Nichols v. Crystal P. G. Co., 126 Mo. 66. (3) The evidence, which was practically undisputed, disclosed a state of facts from which reasonable persons might well draw different conclusions as to whether they proved negligence of defendant or contributory negligence on the part of Winkler, and therefore those questions were properly submitted to the jury. The jury without difficulty found defendant guilty of negligence and Winkler free from contributory negligence. Norton v. Ittner, 56 Mo. 351; O'Mellia v. Railroad, 115 Mo. 221; Gratiot v. Railroad, 116 Mo. 466; Petty v. Railroad, 88 Mo. 306; 2 Thompson on Trials, sec. 1665, and cases cited. (4) In this case, inasmuch as the original plaintiff has died, and in case the judgment is set aside the remedy against defendant is lost, the court will not allow...