76 S.W. 693 (Mo.App. 1903), Sepetowski v. St. Louis Transit Co.
|Citation:||76 S.W. 693, 102 Mo.App. 110|
|Opinion Judge:||BLAND, P. J|
|Party Name:||SEPETOWSKI, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant|
|Attorney:||Boyle, Priest & Lehmann, Geo. W. Easley and Walter H. Saunders for appellant. J. Hugo Grimm for respondent.|
|Judge Panel:||BLAND, P. J. Reyburn and Goode, JJ., concur.|
|Case Date:||November 03, 1903|
|Court:||Court of Appeals of Missouri|
Appeal from St. Louis City Circuit Court.--Hon. S. P. Spencer, Judge.
REVERSED AND REMANDED.
The suit was instituted in a justice of the peace court, in the city of St. Louis, by filing therein a complaint in two counts. After formal allegations, the first count states, "that on October 4, 1901, while plaintiff was driving his wagon, containing groceries, north on Thirteenth street, in the city of St. Louis, it was struck by a west-bound car on Wash street; that as he got into Wash street, one of the defendant's cars came westwardly on Wash street, from a point east of said Thirteenth street, and, owing to the failure of the motorman thereof to ring his bell, plaintiff had no notice of its approach, and, after becoming aware of its approach, was unable to get out of the way of said car. Plaintiff states that said car came along said Wash street at a high rate of speed, and gave no sound of warning as it approached Thirteenth street, so that he drove on Wash street without any knowledge of the approach of said car. Plaintiff states that defendant's motorman in charge of said car violated the ordinance above set out (the vigilant-watch ordinance pleaded in extenso) by failing to keep a vigilant watch for vehicles, and by failing to stop his said car in the shortest time and space possible after discovering plaintiff in a position of danger, and was, therefore, guilty of carelessness and negligence, as a result of which his horse, wagon and contents of wagon, were injured, to his damage in the sum of $ 200, for which he prays judgment."
The second count is a substantial repetition of the first, except it alleges personal injuries to the plaintiff and prays judgment for $ 300 on account thereof.
After trial and judgment in the justice's court the cause was appealed to the circuit court where, on a trial anew, the jury rendered a verdict for the plaintiff and assessed his damages at $ 125 on the first count and at $ 300 on the second. Timely motions for new trial and in arrest of judgment were filed, both of which the court overruled. Defendant then appealed.
Judgment reversed and cause remanded.
(1) The objection to the introduction of any evidence under the second count of the petition, which was identical with the first count, save that the first was for damage to property, and the second for personal injury, both growing out of the same occurrence, should have been sustained. Trammell v. Vaughan, 158 Mo. 214. (2) The demurrer to the evidence should have been sustained. The plaintiff could have seen and heard the approaching car for several blocks, had he looked and listened, and could, by ordinary care, have avoided the injury. (3) The court declared, in an instruction given to the jury on behalf of the plaintiff, that the plaintiff was guilty of negligence, as a matter of law, and yet submitted to the jury the question of defendant's liability upon a misapprehension of the humanitarian rule. The evidence showed that plaintiff, without looking or listening for an approaching car, came trotting down a narrow street, directly in front of the car, and plaintiff's expert testified that the motorman could not stop the car within the distance then existing in time to avoid the accident. Watson v. Railway, 133 Mo. 250; Murphy v. Railway, 153 Mo. 262; Holwerson v. Railway, 157 Mo. 216; Vogg v. Railroad, 130 Mo. 172; Boyd v. Railroad, 105 Mo. 371; Hanselmann v. Railroad, 88 Mo.App. 123; Killion v. Railroad, 86 Mo. 473; Glenville v. Railroad, 61 Mo.App. 629; Karl v. Railroad, 55 Mo. 482; Moore v. Railroad, 126 Mo. 278; 7 Am. and Eng. Ency. of Law (2 Ed.), p. 386; Cooley on Torts (2 Ed.), p. 812.
(1) Although it be conceded that it was irregular for plaintiff to state his cause of action in two counts, asking damages for injuries to his property in one, and for injury to his person in another, yet such error could not in anywise have prejudiced the defendant. Sims v. Railroad, 83 Mo.App. 250; Silcox Martin v. McKinney, 64 Mo.App. 330; Lamb v. Railway, 33 Mo.App. 489. (2) The cause of action was negligence of the motorman in running his car. Plaintiff was not confined to one negligent act. He had the right to state and prove either statutory or common-law negligence, or both. Senn v. Railway, 135 Mo. 517-9. (3) It was not necessary to either plead or prove an acceptance of the vigilant watch ordinance; it was binding upon defendant without any acceptance on his part. Jackson v. Railway, 157 Mo. 621; Hutchinson v. Railroad, 161 Mo. 250; Wendler v. People's House Furnishing Co., 165 Mo. 527; Weller v. Railroad, 164 Mo. 180; McAndrew v. Railway, 88 Mo.App. 97. (4) The demurrer to the evidence was properly overruled. If it were conceded that plaintiff was guilty of negligence in driving upon the tracks under the circumstances in this case, which we deny, yet there was ample evidence to show that defendant's motorman, by the exercise of the care prescribed by ordinance, could have discovered plaintiff's position of danger, and did in fact discover it in time to have averted the injury to him by the use of the appliances at his command, and that he made no effort whatever to stop his car even after actually discovering plaintiff's position of danger. Cooney v. Railway, 80 Mo.App. 232; Bunyan v. Railway, 127 Mo. 15; Morgan v. Railway, 159 Mo. 262; Hutchinson v. Railway, 88 Mo.App. 376; Schmidt v. Railroad, 163...
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