73 S.W. 909 (Mo.App. 1903), McLain v. St. Louis & Suburban Railway Company

Citation:73 S.W. 909, 100 Mo.App. 374
Opinion Judge:REYBURN, J.
Party Name:GRANT McLAIN, Respondent, v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant
Attorney:Dawson & Garvin and Leonard Wilcox for appellant. Jeptha D. Howe, Alphonso Howe and D. D. Holmes for respondent.
Case Date:March 31, 1903
Court:Court of Appeals of Missouri
 
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Page 909

73 S.W. 909 (Mo.App. 1903)

100 Mo.App. 374

GRANT McLAIN, Respondent,

v.

ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 31, 1903

Appeal from St. Louis City Circuit Court--Hon. Selden P. Spencer, Judge.

AFFIRMED.

Judgment affirmed.

Dawson & Garvin and Leonard Wilcox for appellant.

(1) The instructions as for nonsuit should have been given. Van Bach v. Railway, 71 S.W. 358; The Warren, 18 F. 559; The Sunnyside, 91 U.S. 208; The New York, 175 U.S. 205; Taylor v. Railway, 137 Mo. 367; Clark v. Railway, 127 Mo. 212; Wilder S. S. Co. v. Low, 112 F. 166; Railway v. Coerver, 112 F. 493; Rider v. Railway, 171 N.Y. 156; and other cases in argument; Watson v. Railway, 133 Mo. 251. (2) Instruction No. 3, on the measure of damages was erroneous, in submitting items of damage of which there was no evidence; evidence as to injuries which were not pleaded; in giving the jury a roving commission to allow speculative and conjectural damages and those which were possible merely. White v. Railway, 61 Wis. 541; Fry v. Railway, 45 Iowa 417; Curtis v. Railroad, 18 N.Y. 542; Strohm v. Railroad, 96 N.Y. 306; Bigelow v. Railway, 48 Mo. 373; Bradley v. Railway, 138 Mo. 295, 301; Morris v. Railway, 144 Mo. 500; Nixon v. Railroad, 141 Mo. 440; Evans v. Joplin, 76 Mo. 20.

Jeptha D. Howe, Alphonso Howe and D. D. Holmes for respondent.

(1) Defendant waived the demurrer in the first instance and the court, in passing upon the matter, will consider the whole evidence introduced. Edwards v. Railway, 94 Mo.App. 42; Jennings v. Railway, 112 Mo. 268. (2) This court has judicially determined that "it is a matter of common knowledge that cars running at ordinary speed can be stopped in less than one hundred feet." Stocks v. St. Louis Transit Co., 71 S.W. 130. (3) And a peremptory instruction to find for defendant is permissible only when there is no testimony tending to support the plaintiff's case. Herman v. Larkin, 70 S.W. 907. (4) Failing to obey the ordinance was negligence per se. The plaintiff both alleged and proved the ordinance and its acceptance by defendant. He was not required to prove its acceptance, but he has certainly placed himself within all of the rulings of our appellate courts on this question, and we fail to see why appellant has had the temerity to raise this question at all. Gebhart v. Transit Co., 71 S.W. 448; Edwards v. Railway, 94 Mo.App. 40; Jackson v. Railway, 157 Mo. 621. (5) Appellant complains of the use of the word "may" in the instructions on the measure of damages, and claims that this gave the jury a roving commission. An instruction similar to this has been approved by this court in so late a case as Eberly v. Railway, 70 S.W. 381.

OPINION

Page 910

[100 Mo.App. 376] REYBURN, J.

--This is an appeal by defendant from a judgment of the circuit court of the city of St. Louis in favor of plaintiff for the sum of $ 3,700 for personal injuries of a grave and permanent character inflicted on him by a street car of defendant striking a car of the St. Louis Transit Company. The catastrophe occurred about 4 o'clock in the afternoon of January 25, 1902, at the intersection of the double parallel tracks of defendant on Union avenue, extending northwardly and southwardly across Delmar avenue, and the double parallel tracks of the Transit Company on Delmar avenue, running eastwardly and westwardly across Union avenue in the city of St. Louis.

The plaintiff, in the performance of his duties in the employ of the Transit Company, was operating one of its cars as a motorman. The petition charges that the Transit Company had the right of way across the tracks of defendant at Union and Delmar avenues and it was the duty of defendant's servants in charge of its cars to wait before such crossing until the car of the [100 Mo.App. 377] Transit Company had cleared it. That while plaintiff was in charge of a car of the Transit Company and such car was being lawfully propelled eastward on Delmar avenue over the crossing and right of way, defendant's servants in charge of and operating one of its cars over its tracks on Union avenue, carelessly and negligently failed to wait before such crossing until it was cleared by the Transit car and carelessly and negligently so ran defendant's car upon such crossing and tracks of the Transit Company that they caused defendant's car to collide with the car of the Transit Company. That at the time there was in force in the city of St. Louis, an ordinance giving the Transit Company the right of way over such crossing, and the right to cross its east-bound car first over such crossing, and defendant was prohibited from entering upon such crossing while it was in use by the Transit Company, and defendant's servants in charge of its car violated such ordinance by not waiting before such crossing until the Transit Company's car had cleared the crossing, and such violation directly contributed to cause the collision, and defendant, in consideration of its franchise from the city to operate its railway upon such street at such place, had agreed to obey the provisions of the ordinance.

Defendant's answer contained a general denial, and a general plea of contributory negligence, and further charged as specific acts of contributory negligence, that plaintiff so carelessly operated the Transit car as it approached, and went on the crossing that he caused it to collide with...

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