Asmus v. United Rys. Co. of St. Louis

• Decision Date: 03 January 1911
• Parties: ASMUS v. UNITED RYS. CO. OF ST. LOUIS et al.
• Court: Missouri Court of Appeals

134 S.W. 92

152 Mo. A. 521

ASMUS v. UNITED RYS. CO. OF ST. LOUIS et al.

Springfield Court of Appeals. Missouri.

January 3, 1911.

Rehearing Denied February 6, 1911.

1. STREET RAILROADS (§ 117) — OBSTRUCTIONS IN STREET — SWITCH — LIABILITY OF COMPANY — QUESTION FOR JURY.

In an action against a street railway company for the death of a teamster alleged to have been caused by the maintenance of an unbroken main line switch, the question of negligence in maintaining such a switch held, under the evidence, to be one for the jury.

2. APPEAL AND ERROR (§ 856) — REVIEW — GROUNDS FOR SUSTAINING DECISION NOT CONSIDERED.

Where a petition in an action against a street railway company for wrongful death caused by the maintenance of a negligently constructed switch in the street failed to allege that the company was wrongfully in the streets, but proceeded upon the theory that it was rightfully there, the plaintiff cannot support a judgment upon the theory that defendant showed no license to use the streets, and hence the switch was a common nuisance.

3. JURY (§ 53) — QUALIFICATIONS — PRIOR SERVICE WITHIN YEAR.

A juror drawn for one week's service who served on a jury the first of the week is not disqualified from serving again the latter part of the week, as having served on a jury within the year.

4. APPEAL AND ERROR (§ 1050) — REVIEW — HARMLESS ERROR — WRONGFUL DEATH — EVIDENCE — REVERSIBLE ERROR.

Where a wife in an action against a street railway company for the wrongful death of her husband testified that she had five minor children, it was not reversible error.

5. STREET RAILROADS (§ 86) — OBSTRUCTIONS IN STREETS — SWITCH — LIABILITY OF COMPANY.

A street railway which maintains a dangerous switch on a street is guilty of negligence, even though it does not practically prevent public use of the highway.

6. STREET RAILROADS (§ 86) — OPERATION — DUTY TO REPAIR STREETS NEAR TRACKS — STATUTE.

Under the charter of the city of St. Louis, street car companies are required to keep the streets within a certain distance of their rails in repair, and to keep the street as near even with the top of the rails as possible, and a company is liable for its failure both to the city and a private person.

7. TRIAL (§ 256) — INSTRUCTIONS — REQUESTS — NECESSITY.

Where a defendant street railway company failed to request the trial court to define the meaning of technical words used in the instructions, it cannot complain of a failure to define such terms.

8. STREET RAILROADS (§ 118) — OBSTRUCTIONS IN STREET — SWITCH — LIABILITY OF COMPANY — INSTRUCTIONS.

Where the petition in an action against a street railway company for a wrongful death charged that it was caused by defendant's negligence in maintaining a dangerous switch in the street, an instruction for plaintiff limiting the right to recover upon a finding by the jury that defendant failed to use ordinary care in installing and using the switch, where it could have used a safer one, and one on the part of the defendant that, even though they found deceased met his death because of the sunken condition of the pavement near the switch that the verdict should be for the defendant, if the switch was necessary for the purpose it was used, properly presented the issues to the jury.

9. STREET RAILROADS (§ 118) — OPERATION — INSTRUCTIONS — APPLICABILITY TO PLEADINGS.

Where the petition in an action against a street railway company for wrongful death charged only that it was caused by the defendant's negligence in maintaining a dangerous switch in the street, an instruction which charged the jury that the St. Louis city charter required street car companies to keep the street in repair for one foot outside the rails, and, if this was not done and such failure caused the injury, the plaintiff might recover, was erroneous in allowing for negligence not complained of in the petition.

10. APPEAL AND ERROR (§ 882) — REVIEW — HARMLESS ERROR — INSTRUCTIONS — PERSONS REQUESTING.

In an action against a city and a street railroad, where an erroneous instruction given at the request of the city was prejudicial to the railroad, a judgment in favor of the plaintiff against the railroad will be reversed.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Sabina Asmus against the United Railways Company of St. Louis and another. From a judgment for plaintiff, the United Railways appealed to the St. Louis Court of Appeals, from which the cause was transferred to the Springfield Court of Appeals. Reversed and remanded.

Glendy B. Arnold (Boyle & Priest, of counsel), for appellant. Robert L. McLaran, for respondent.

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 $6,500 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 the 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 south, 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 towards 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 track for a distance of about four feet, said guard or flange having a height 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 1½ or 2 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 5 or 6 feet, said last-mentioned guard or flange having a height of about 2½ or 3 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 1½ feet; said guards or flanges being about parallel to each other and about 5 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 two said rails at the places where said flanges are constructed and maintained, as aforesaid, had become and was...