Anderson v. Wells
| Decision Date | 02 June 1925 |
| Citation | 273 S.W. 233,220 Mo.App. 19 |
| Parties | ROBERT ANDERSON, RESPONDENT, v. ROLLA WELLS, RECEIVER OF THE UNITED RAILWAYS COMPANY OF ST. LOUIS, A CORPORATION, APPELLANT. |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Original Opinion of June 2, 1925, Reported at: 220 Mo.App. 19.
Motion for rehearing overruled.
OPINION ON MOTION FOR REHEARING.
Plaintiff filed a motion for rehearing and a motion to modify the opinion, both of which are grounded on the overlooking of a certain contention made.
Inasmuch as we failed to discuss the point in our opinion, and in order to intelligently consider the motions, it becomes necessary to state the situation found in the record.
The first assignment of negligence alleged in the petition is grounded on the negligent violation of an ordinance which, in effect, requires street cars to stop on corners therein provided, upon signals, etc. The second assignment of negligence is grounded on the humanitarian doctrine. At the close of plaintiff's case the defendant offered and the court refused an instruction requesting generally a verdict in defendant's behalf. The defendant refused to offer any evidence. Thereupon the court gave, at the request of plaintiff, an instruction conforming to the first assignment of negligence in the petition, based on the negligent violation of the ordinance. At the request of defendant, the court gave three instructions, the first of which precluded recovery if plaintiff was negligent. The second told the jury that the charge of negligence made by defendant must be proven by the greater weight of the evidence, and that the jury had no right to presume negligence from the fact of injury. The third withdrew from the jury the assignment of negligence based on the humanitarian doctrine. Defendant also offered two instructions, which the court refused, the first telling the jury that it was not the duty of the motorman to stop the car until he saw, or by the exercise of ordinary care could have seen, that plaintiff was about to go upon the track in front of the car. The second told the jury that if plaintiff did not look before going upon the track, he could not recover.
Plaintiff relying on Torrance v. Pryor, 210 S.W. 430; Davison v. Hines, 246 S.W. 295; Leahy v Winkel, 251 S.W. 483; Ramsey v. Railroad, 253 S.W. 1079, and other cases of like ilk, contends that, after defendant's requested peremptory instruction in the nature of a general demurrer had been overruled, defendant became estopped on appeal to say that no case was made on that theory for...
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Anderson v. Wells
...UNITED RAILWAYS COMPANY OF ST. LOUIS, A CORPORATION, APPELLANT. Court of Appeals of Missouri, St. LouisJune 2, 1925 Rehearing Denied 220 Mo.App. 19 at 28. from the Circuit Court of the City of St. Louis.--Hon. Anthony F. Ittner, Judge. REVERSED AND REMANDED. Judgment reversed and cause rema......