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

• Decision Date: 07 November 1911
• Citation: 160 Mo. App. 616,140 S.W. 933
• Parties: ASMUS v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

140 S.W. 933

160 Mo. A. 616

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

St. Louis Court of Appeals. Missouri.

November 7, 1911.

STREET RAILROADS (§ 110) — DEFECTIVE TRACK — INJURIES — PETITION.

Where, in an action against a railway company for death of a teamster alleged to have been caused by defendant's maintenance of a broken main line switch in a street, the petition charged that the pavement on both sides of the rails where the flanges were constructed and maintained, had become out of repair, and was worn, and depressed for six inches on each side of the rails, from the wear incident to the ordinary uses of the street, but there was no allegation that defendant either knew or, by ordinary care, might have known that the street was so defective, such allegation was insufficient to raise the issue of negligence in failing to perform its charter duty to keep the street in repair for one foot outside the rails.

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

Action by Sabina Asmus against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant railways company appealed to the St. Louis Court of Appeals from which the case was transferred to the Springfield Court of Appeals, where the judgment was reversed and remanded, and such transfer having been held to have been made under an unconstitutional statute the case was again retransferred to the St. Louis Court of Appeals where it was submitted for decision. Reversed and remanded.

Glendy B. Arnold, V. H. Roberts, and Boyle & Priest, for appellant. Robt. L. McLaran, for respondent.

PER CURIAM.

The appeal in this case was prosecuted to this court, but it was transferred to the Springfield Court of Appeals under the provisions of an act of the Legislature, approved June 12, 1909. See Laws Mo. 1909, p. 396. See, also, section 3939, R. S. 1909. Afterwards, the Springfield Court of Appeals disposed of the case through an opinion prepared by Judge Gray of that court, which may be found reported under the title Asmus v. United Rys. Co. of St. Louis, 152 Mo. App. 521, 134 S. W. 92. Subsequently, the Supreme Court declared the legislative act which purported to authorize the transfer of cases from one Court of Appeals to another for hearing and determination to be unconstitutional, as will appear by reference to the cases of State ex rel. Dunham v. Nixon, 232 Mo. 98, 133 S. W. 336; State ex rel. Dressed Beef, etc., Co. v. Nixon, 232 Mo. 496, 134 S. W. 538; State ex...