94 S.W. 975 (Mo. 1906), Lennon v. St. Louis & Suburban Raileay Co.

Citation:94 S.W. 975, 198 Mo. 514
Opinion Judge:GANTT, J.
Party Name:LENNON v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant
Attorney:Jefferson Chandler, John Lionberger Davis and T. M. Pierce for appellant. A. R. Taylor for respondent.
Judge Panel:GANTT, J. Burgess, P. J., and Fox, J., concur. Burgess, P. J., and Fox, J., concur.
Case Date:July 03, 1906
Court:Supreme Court of Missouri
 
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Page 975

94 S.W. 975 (Mo. 1906)

198 Mo. 514

LENNON

v.

ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Division Two

July 3, 1906

Appeal from St. Louis County Circuit Court. -- Hon. Jno. W. McElhinney, Judge.

Reversed.

Jefferson Chandler, John Lionberger Davis and T. M. Pierce for appellant.

(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the pleadings and evidence, which was offered by defendant at the close of plaintiff's evidence, and again at the close of all the evidence in the case. Davies v. Railroad, 159 Mo. 1; Payne v. Railroad, 136 Mo. 581; Zumault v. Railroad, 175 Mo. 288; Ries v. Railroad, 179 Mo. 1; Petty v. Railroad, 179 Mo. 666; Reno v. Railroad, 180 Mo. 469. (2) The court erred in submitting the last chance or humanitarian doctrine by instructions given by the court itself and by plaintiff's instructions. Boyd v. Railroad, 105 Mo. 372; Petty v. Railroad, 179 Mo. 666; Reno v. Railroad, 180 Mo. 469; Rissler v. Railroad, 87 S.W. 578. (3) The court erred in instructing the jury that the motorman must keep a vigilant watch for people "likely to come into danger." This instruction was too broad and is not the law. Boyd v. Railroad, 105 Mo. 372; Petty v. Railroad, supra.

A. R. Taylor for respondent.

(1) The evidence makes a clear case for the jury's determination. Not only was there evidence in support of the verdict but there was strong evidence of the negligence of appellant's motorman on appellant's evidence. For if he saw the deceased, as he says he saw her, so near the track as to endanger her life, and also saw that she did not heed his danger signals, as he says he did, then if he ran his car without abating his speed until the instant he struck her, as he admits -- and as defendant's witness Killoren testifies -- then he was negligent on the evidence given for defendant; certainly a fair-minded jury might with intelligence draw this inference. Klockenbrink v. Railroad, 172 Mo. 688; Scullin v. Railroad, 184 Mo. 707; Riska v. Railroad, 184 Mo. 192; Eckhard v. Railroad, 190 Mo. 618. (2) If the jury should believe from the evidence that she was standing engaged in bargaining for vegetables, where she must be struck by the car during all the time the car was running the 150 to 200 feet from Seventeenth street to the place of collision and in plain view of the motorman, and he did, nevertheless, run his car down upon her and kill her, then, under the general trend of judicial decision in this country, at least, the humane doctrine was properly applied. Inland Seaboard Co. v. Tolson, 139 U.S. 558; Railroad v. Ives, 144 U.S. 429; Keely v. Railroad, 75 Mo. 140; Kelly v. Railroad, 95 Mo. 284; Guenther v. Railroad, 95 Mo. 295; Kellny v. Railroad, 101 Mo. 75; Reardon v. Railroad, 114 Mo. 406; Schlereth v. Railroad, 115 Mo. 101; Chamberlain v. Railroad, 133 Mo. 599; Morgan v. Railroad, 159 Mo. 275; Klockenbrink v. Railroad, 172 Mo. 687; Scullin v. Railroad, 184 Mo. 707; Rapp v. Railroad, 190 Mo. 161.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

[198 Mo. 516] GANTT, J.

The petition in this case in substance states that the defendant is and was at the times herein stated, a street railway company, under the laws of Missouri, operating street railway cars for the transportation of persons from one point to another in the city of St. Louis; that Wash street was one of the open public [198 Mo. 517] streets of the said city; that the defendant operated its street cars on said Wash street; that plaintiff was the husband at the time of her death, of Mary Lennon herein mentioned; that on the 10th day of November, 1900, at or near a place on Wash street opposite house number 1621 Wash street, plaintiff's wife, the said Mary Lennon, was standing between a wagon on the south side of defendant's track and the defendant's track, engaged in buying vegetables from a huckster and in danger of being struck by defendant's east-bound car if it should pass her; that as the plaintiff's wife was passing from said position, the defendant's east-bound car struck and killed her. That plaintiff's wife was so struck and killed through the negligence and unskill-fullness of the defendant's motorman and conductor in charge of said car, in this, that they failed to keep a vigilant watch ahead of their car, and failed to stop said car in time to prevent it from striking and killing plaintiff's wife, and in failing to give any signal by bell or otherwise to plaintiff's wife of the approach of said car and the danger therefrom; and for another assignment of negligence, plaintiff states that at the time of the said killing of his wife, there was within the city of St. Louis an ordinance of said city, by which it was provided that motormen and conductors of said cars should keep a vigilant watch for persons on foot, either on the track or moving towards it, and upon the first appearance of danger to such person, the car should be stopped in the shortest time and space possible, and the plaintiff avers that defendant's said motorman and conductor before and at the time of the killing of his wife, failed to keep such vigilant watch and failed to stop said car in the shortest time and space possible, which violation of said ordinance directly contributed to cause the death of his wife as aforesaid. That by the death of his wife caused as aforesaid an action accrued to the plaintiff to recover the sum of five thousand dollars, according to the statute in such cases, for...

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