Blyston-Spencer v. United Railways Company of St. Louis

• Decision Date: 05 December 1910
• Citation: 132 S.W. 1175,152 Mo.App. 118
• Parties: PAULA F. BLYSTON-SPENCER, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

132 S.W. 1175

152 Mo.App. 118

PAULA F. BLYSTON-SPENCER, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, Springfield

December 5, 1910

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.

REVERSED AND REMANDED.

STATEMENT.--This was an action commenced by the plaintiff against the defendant, a street railway company operating street car lines in the city of St. Louis. The action was for damages growing out of injuries plaintiff sustained by reason of a collision with one of defendant's street cars at the intersection of Delmar and Bayard avenues in said city. The negligence charged in the petition is (1) the failure of defendant's servants to keep a vigilant watch for plaintiff and to stop the car in the shortest time and space possible upon the first appearance of danger to the plaintiff, and (2) in running the car at a rate of speed in excess of fifteen miles an hour, alleged to have been in violation of a certain ordinance of the city of St. Louis. Among other items of damages claimed in the petition, appear the following: "Hospital bills in the sum of $ 71.70 nurse hire, $ 39.40; ambulance charge, $ 10; additional expenses in nurse hire, $ 80; doctor's bills, $ 230 occulist's bills, and expenses for eye-glasses, $ 35." The prayer was for twenty-five thousand dollars damages. The answer was a general denial coupled with a countercharge that plaintiff's injuries were caused by her own negligence in passing onto the track of the defendant dangerously near an approaching car. The reply was a general denial. Upon trial, plaintiff obtained judgment for the sum of three thousand dollars, from which the defendant duly perfected its appeal to this court.

The evidence offered by the respondent tended to support the charges of negligence contained in her petition. Her own testimony tended to show that at the time of the accident she was crossing from the south side to the north side of Delmar avenue on the west walk of Bayard avenue at the intersection of the two streets; that it was about 8:30 in the evening and the streets were lighted and she could see two or three blocks in either direction; that Delmar avenue at this point runs east and west, and that Bayard avenue, running north and south intersects it at a right angle; that the streets are level and straight at this point. She stated that when she started to cross the street, she looked both ways, east and west, along Delmar avenue, and listened for street cars; that at this time, she saw a car coming from the east, but that there was none in sight coming from the west; that it was about four hundred feet to Walton avenue, east, and that this street car coming toward her from the east was about one hundred and fifty feet west of Walton avenue; that at about the same time, she saw an automobile on the north side of this car and just behind it coming in the same direction that when she reached the space between the two tracks, she saw she could not get across, and, in order to allow the street car and automobile to pass, stepped on the north side of the east-bound track close to the north rail; that when she stopped there, waiting for the west-bound car and the automobile to pass, she again looked toward the west for a car but that no car was in sight coming from that direction. But, unnoticed by her, while she stood there, a car from the south came down Euclid avenue, a street running north and south and parallel with Bayard avenue; this car, called the Taylor avenue car, came around the corner on the south track of Delmar avenue. It was running, according to the evidence, at the rate of from twenty to twenty-five miles an hour, and while plaintiff was looking to the north with her side toward the approaching car from the west, it ran her down. The distance, west, from where plaintiff stood and was struck to the point where the Taylor avenue car came onto the south track of Delmar avenue was about four hundred feet. Plaintiff stated that she stood between the tracks for ten or fifteen seconds to enable the west bound car and the automobile to pass in order that she might pass on north; that at this time, something attracted her attention and she looked up and saw the Taylor avenue car coming from the west and that it was then only twenty-five or thirty feet away. She was in a sort of a pocket; cars were approaching her from both sides; she claims she attempted to get out of the way; she stated that she could not go forward, north, because of the car and automobile approaching from the east; that she tried to go backward and was caught by the Taylor avenue car, coming from the west, receiving her injuries. The testimony tended to show that she was rendered unconscious; that her skull was fractured, and her face, back, shoulders and limbs bruised and injured; that her right arm was injured and her left ankle sprained; that she lost the use of one of her eyes for six months, had paralysis of the sensory nerves in areas on the right side of her body, was unconscious for two or three days after the accident, and was confined to her bed for about two months.

Judgment reversed and cause remanded.

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

(1) The court erred in overruling defendant's challenges of jurors Marshall, Metzner, Orr, Penseneau and Hennessy, on the ground that each of them had served on a jury in said court within twelve months next preceding the trial of this case. Williamson v. Transit Co., 202 Mo. 365; R. S. 1909, sec. 7342. (2) The court erred in giving to the jury plaintiff's second instruction. Negligent speed and the humanitarian doctrine are inconsistent theories. Krehmeyer v. Transit Co., 223 Mo. 650; Hough v. Car Co., 123 S.W. 83. (3) This instruction is erroneous for the further reason that the speed of the car was not shown to have been either a proximate or remote cause of the collision. Schmidt v. Transit Co., 140 Mo.App. 182; Heinzle v. Railroad, 182 Mo. 559; King v. Railroad, 211 Mo. 1; Frank v. Transit Co., 112 Mo.App. 506. (4) Plaintiff's instruction on the measure of damages is erroneous, because: (a) It authorizes damages for "the impairment of plaintiff's health," when no such charge is contained in the petition. Moore v. Transit Co., 226 Mo. 698. (b) It authorizes damages for doctors' bills, medical attention and nurse hire beyond the amount claimed in the petition. This was reversible error, and cannot be cured by a remittitur. Smoot v. Kansas City, 194 Mo. 522; Heinz v. Railroad, 143 Mo.App. 38.

Sterling P. Bond for respondent.

(1) Appellant's second point is not well taken for the reason that respondent's case was not submitted to the jury on the humanitarian doctrine. Appellant does not criticise the form of this instruction. It is supported by the cases of Riska v. Railroad, 180 Mo. 184; Eckard v. Transit Co., 190 Mo. 593; Deitring v. Transit Co., 109 Mo.App. 524. The instruction is not subject to the criticism on the ground that the speed was not shown to have been a cause of the collision, as appears from the evidence in the case. Deitring v. Transit Co., 109 Mo.App. 539; Murray v. Transit Co., 108 Mo.App. 506. (2) There is nothing in appellant's criticism (a) point 3. Nor does the authority cited, Moore v. Transit Co., 226 Mo. 698, sustain appellant's contention. To support respondent's position respondent refers the court to her petition and to the authorities to sustain it, of Cobb v. Railroad, 149 Mo. 140; Groce v. Railroad, 150 Mo. 296; McCarthy v. Transit Co., 109 Mo.App. 137. (3) All instructions given by the court whether for the plaintiff or defendant, must be taken and read together, and if, being so read, they are inconsistent and not calculated to mislead the jury the judgment should be permitted to stand. Hart v. Railroad, 55 Mo. 476; Whalen v. Railroad, 60 Mo. 323; Haworth v. Railroad, 94 Mo.App. 215; Dickson v. Railroad, 104 Mo. 49; Czezewzka v. Rialroad, 121 Mo. 215; Panjiris v. Hartman, 196 Mo. 539; Moore v. Mining Co., 105 Mo.App. 709; Gordon v. Burris, 153 Mo. 332.

OPINION

NIXON, P. J.

I. Appellant at the outset assigns as error the action of the trial court in overruling appellant's challenges of jurors Marshall, Metzner, Orr, Penseneau and Hennessy, on the ground that each of said jurors had served on a jury within twelve months next preceding the trial of this case. The evidence showed that each of these jurors had been summoned to come to court and serve for one week, beginning on Monday of the week in which this case was tried, and that they had sat upon juries during the week subsequent to the Monday when they began to serve, but that they had not sat upon any jury within a year prior to the time their service as jurors began; that is, on Monday of the week in which this case was tried.

Section 7353, Revised Statutes 1909, concerning juries in cities of 100,000 inhabitants or more in this state, provides that each of the courts therein referred to "may direct from time to time the number of jurors to be summoned for said court and how long they shall be summoned before their appearance shall be required, and how long they shall serve." The panel of jurors which tried the present case had been required by the court, under the authority granted by this section, to appear on the preceding Monday and serve for a period of one week. Section 7361, Revised Statutes 1909, provides that a juror is to serve only once a year, and that no person should be required to serve as a juror, either grand, petit or special, more than once a year. But it has been held that this section confers a special privilege on the juror, and does not forbid his being summoned. It is ground for challenge for cause, but is waived if the juror is not challenged...