Asmus v. United Railways Company v. Louis

• Decision Date: 03 January 1911
• Parties: SABINA ASMUS, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

134 S.W. 92

152 Mo.App. 521

SABINA ASMUS, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, Springfield

January 3, 1911

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.

Judgment reversed and cause remanded.

Glendy B. Arnold for appellant; Boyle & Priest of counsel.

(1) There is no claim made that appellant had not the lawful right to maintain a switch at the place in question, and there being no evidence that the switch used was an unnecessarily dangerous obstruction, plaintiff made no case for the jury. Morie v. Transit Co., 116 Mo.App. 12; Randle v. Railroad, 65 Mo. 335. (2) The switch in question was maintained by authority of law and the consent of the city of St. Louis, and was therefore not a nuisance per se. Porter v. Railroad, 33 Mo. 128; State ex rel. v. Railroad, 206 Mo. 251; Lackland v Railroad, 34 Mo. 275; Glaessner v. Railroad, 100 Mo. 514. (3) The mere fact that the switch was dangerous to travel in the street does not constitute it a nuisance. Morie v. Transit Co., 116 Mo.App. 27; Siebert v Railroad, 188 Mo. 657. (4) Unless the danger was so great as to practically withdraw the thoroughfare from public use, no redress will be granted for any injury caused by the switch. Brown v. Railroad, 137 Mo. 535. (5) The mere fact that a safer appliance could have been used does not render the appellant liable in this case because it was not required to use the safest and most improved switch known. It was bound only to use a reasonably safe appliance. Grattis v. Railroad, 153 Mo. 403. (6) The court erred in giving on behalf of the city of St. Louis, instructions marked "3 C." Because said instruction authorizes a verdict against appellant on a charge of negligence not laid in the petition. Heinzle v. Railroad, 182 Mo. 559; Waldhier v. Railroad, 71 Mo. 514.

Robert L. McLaran for respondent.

(1) The evidence showed that defendant had constructed and maintained a certain switch in a public street of the city of St. Louis, which was a dangerous obstruction to vehicles, traveling along such street, whereas defendant could have maintained and used another and much safer type of switch at such place. It was then for the jury to determine whether or not defendant exercised reasonable care in maintaining a dangerous switch when it could have used a safer one. Morie v. Transit Co., 116 Mo.App. 12; 3 Elliot on Railroads, 154; Groves v. Railroad, 58 S.W. 508, 52 L.R.A. 448; Wiley v. Smith, 25 App.Div. (N.Y.) 351; Fitts v. Railroad, 59 Wis. 323; Schild v. Railroad, 133 N.Y. 446; Railroad v. Delesdernier, 84 Tex. 83; Goodrich v. Railroad, 103 Iowa 412. (2) The evidence showed that defendant permitted its switch to become more dangerous than it otherwise would have been by allowing the pavement of the street adjoining the switch to become sunken and depressed. It was for the jury to determine whether this constituted negligence. Girvelaud v. Railroad, 33 Mo.App. 458; 27 Am. and Eng. Ency. Law, 94; Railroad v. Medlenka, 17 Tex. Civ. App. 621; Groves v. Railroad, 58 S.W. 508. (3) The action of the court in giving instruction marked "3 C" on behalf of the city of St. Louis is no cause for reversal of this case. The petition is broad enough to cover the issues presented by this instruction. R. S. 1909, sec. 1831; Railroad v. Bank, 212 Mo. 505; Sharp v. Railroad, 213 Mo. 517; Lee v. Railroad, 195 Mo. 400. (4) It was not error for the court to permit plaintiff to state the number and names of her children. Plaintiff was entitled to the assistance and advice of her husband in rearing her children, and her loss in this regard is a proper element of her damages. Jones v. Railroad, 178 Mo. 552; 4 Sutherland on Damages (3 Ed.) 3711.

OPINION

GRAY, J.

Plaintiff instituted this suit in the circuit court of the city of St. Louis, on the 18th day of November, 1908, to recover damages alleged to have been sustained by her on account of the death of her husband, which the petition alleges to have been caused by the negligence of the appellant, a street railway company, and the city of St. Louis, in maintaining in Washington avenue, a public street in said city, at its intersection with Fourteenth street, a dangerous obstruction in the form of a switch, which was used by appellant in switching cars from its line on Washington avenue to its tracks in said Fourteenth street. The petition alleges that plaintiff's husband, while driving his wagon across said switch on the 17th day of August, 1908, was jolted off the seat into the street, striking his head with great force against the pavement, inflicting injuries from which he died.

The answer of the appellant is a general denial, coupled with a plea of contributory negligence; and also alleging that the switch used was the best and most approved device known, and was in common use, and used at the intersection of said streets as a necessary means to conduct its business under and by virtue of the laws of the state and the ordinances of the city of St. Louis.

The answer of the city was a general denial, and also a plea of contributory negligence, and alleging that the switch in use was the best and most approved device, and of the best pattern and construction known, and was in common and general use.

On trial before a jury, a verdict of $ 6500 was returned against the appellant, but the verdict was in favor of the city of St. Louis. The street car company appealed from the judgment to the St. Louis Court of Appeals, and the cause is in this court on transfer from the St. Louis court.

The appellant maintains that evidence of negligence not alleged in the petition was admitted by the court, and that the instructions also authorized a recovery for such negligence. In order that a fair understanding of this question may be had, we quote the following from the petition:

"For her cause of action plaintiff states that at all times hereinafter mentioned and for a long time prior thereto defendant United Railways Company of St. Louis, owned, maintained, operated and controlled a line of street car tracks laid and constructed along Washington avenue, one of the public streets of the said city of St. Louis, said street and said tracks running from east to west; that said defendant United Railways Company of St. Louis, also owned, maintained, operated and controlled a certain other line of street car tracks laid and constructed along Fourteenth street, a public street of said city of St. Louis, running from north to south; that said Fourteenth street crosses said Washington avenue at about a right angle.

"Plaintiff further states that the said tracks of said defendant which are laid on Fourteenth street, are on that part of said street which is immediately south of said Washington avenue, and that as said tracks on Fourteenth street approach said Washington avenue, from the scuth, they make a curve or bend to the west and run into and connect with said defendant's said tracks on Washington avenue.

"Plaintiff further states that the most western rail of the tracks on Fourteenth street connects with the most southern rail of the tracks on Washington avenue; that as said most western rail of the Fourteenth street tracks gradually curves toward and approaches the said most southern rail of the Washington avenue tracks, and as said most western rail is running in a westwardly direction, almost parallel to said Washington avenue tracks, defendant United Railways Company, has at all times herein mentioned, and for a long time prior thereto, owned, maintained and controlled an iron or steel guard or flange extending along the north side of said most western rail of the said Fourteenth street tract, for a distance of about four feet, said guard or flange having a heighth of about two inches above the top of the said rail and of the adjoining granite blocks with which said Washington avenue is paved; that on the north side of the said most southern rail of the said tracks on Washington avenue, said last named defendant, at all times herein mentioned and for a long time prior thereto, has owned, maintained and controlled another iron or steel guard or flange, which commences at a point about one and one-half or two feet east of the point of connection of the said western rail of the Fourteenth street tracks with said most southern rail of said Washington avenue tracks, and extends thence westwardly along the north side of said most southern rail for a distance of about five or six feet, said last mentioned guard or flange having a heighth of about two and one-half or three inches above the top of said rails, and of the adjoining granite pavement of said street; said two flanges overlapping one another to the extent of about one and one-half feet; said guards or flanges being about parallel to each other and about five inches apart.

"Plaintiff further states that at all times herein mentioned and for a long time prior thereto the pavement of said Washington avenue, on both sides of and adjoining the said rails at the places where said flanges are constructed and maintained, as aforesaid, had become and was out of repair in that it was worn, sunken and depressed for a distance of about six inches on each side of said rails, from the wear and tear incident to the usual and ordinary uses of said street.

"Plaintiff further states that the said iron or steel guards or flanges extending along the said rails as aforesaid, were at all times herein mentioned firmly attached and fastened to said rails and said street, and were firm, rigid and unyielding; that said guards or flanges, extending above said rails and said street as above set forth, constituted dangerous obstructions in said public street known as Washington avenue; that the wheels of...