Danforth v. Lindell Railway Company
| Decision Date | 18 June 1894 |
| Parties | Danforth et al., Appellants, v. Lindell Railway Company |
| Court | Missouri Supreme Court |
H. J Cantwell for appellant.
(1) Sections 1245 and 1246, Revised Ordinances, City of St Louis, Missouri, were competent and material under the pleadings, as proof of a violation of the ordinances was competent evidence in support of the allegation of negligence. Robertson v. Railroad, 84 Mo. 119; Kelly v. Railroad, 95 Mo. 285; Riley v Railroad, 18 Mo.App. 385. (2) Ordinance 15,445, admitted over the objection of plaintiff, was incompetent, irrelevant and immaterial because section 3, which attempts to permit the running of cars east of Grand avenue at a rate of speed greater than ten miles and west of Grand avenue at a rate of speed not greater than fifteen miles an hour is invalid and void because in conflict with sections 1245 and 1246, general ordinances -- said general ordinances not having been repealed in express terms. Section 28, art. 3, charter city of St. Louis, pp. 44 and 45. (3) The failure of the motorneer to ring the bell upon approaching the west bound car, knowing as he should that persons passing behind said car were liable to step on the track in front of him, was alone negligence sufficient to have entitled plaintiffs to recover; because the exercise of ordinary care, i. e., ringing the bell, would have prevented the calamity. Winters v. Railroad, 99 Mo. 509; Kelly v. Co., 95 Mo. 279; Eswin v. Railroad, 96 Mo. 290. (4) The duty to ring the bell under the circumstances of this case existed independent of city ordinances. Burger v. Railroad, 112 Mo. 238. (5) At any rate, the question whether a failure to ring the bell, under the circumstances, was or was not negligence, should have been submitted to the jury; for it was, to say the least, a case where fair minded men might differ as to whether or not the inference of negligence should be drawn from the facts in evidence. Lynch v. Railroad, 112 Mo. 420; Spillane v. Railroad, 111 Mo. 555. (6) A demurrer to the evidence admits the facts, but denies their legal effect, and is equivalent to a special verdict. Gibson v. Hunter, 2 H. Bl. Rep. 187; Pawling v. United States, 4 Cranch, 319. (7) Where there is a case stated or special verdict the court of error must not only reverse the judgment below, if found erroneous, but enter a correct and final judgment. R. S. 1889, sec. 2304; Semmes v. United States, 91 U.S. 21; Graham v. Bayne, 18 How. 60; Pawling v. United States, 4 Cranch, 319; Suydam v. Williamson, 20 How. 427; Brown v. Railroad, 101 Mo. 484; Carroll v. Co., 107 Mo. 653; Heyneman v. Garneau, 33 Mo. 565. (8) The law having fixed the amount of recovery at $ 5,000, there is no necessity for, and plaintiffs should not be subjected to the delay of, another trial. R. S. 1889, sec. 4425.
Boyle & Adams for respondent.
(1) The bill of exceptions fails to show that the motion for a new trial was filed within the prescribed four days after the judgment and this court can not consider the errors assigned. R. S. 1889, sec. 3707. Bollinger v. Carrier, 79 Mo. 318. (2) The record shows no exception was taken to the action of the trial court in overruling plaintiffs' motion for a new trial. Depenbrock v. Shaw, 21 Mo. 122; Berry v. Smith, 54 Mo. 148; City of St. Joseph v. Ensworth, 65 Mo. 628; Wilson v. Haxby, 76 Mo. 345; McIrvine v. Thompson, 81 Mo. 647; State v. Gilmore, 110 Mo. 1. (3) The court below committed no error in nonsuiting the plaintiff and overruling plaintiff's motion to set aside the nonsuit, or in admitting or excluding evidence.
ON REHEARING IN BANC.
Upon the argument before the whole court, the defendant insisted on the points mentioned in the opinion filed in the first division, as well as other points advanced in the brief of its counsel.
The court is of opinion that the omission to except to the action of the trial court, in overruling the motion for new trial, debars plaintiffs from presenting for review any of the alleged errors in the rulings at the trial, of which they complain.
This rule of practice we consider settled by the statute on the subject (R. S., 1889, sec. 2302), and by many decisions of this court, some of which are cited in the opinion heretofore filed in the first division.
2. We think defendant can not properly be held to have waived the right to insist now upon the application of this rule, although it did not ask its enforcement on the hearing in division one.
When a cause has been regularly transferred from one of the divisions to the court in banc, it is to be heard there upon the record as presented upon the submission to the court in banc.
3. Plaintiffs' counsel have asked leave in this court to amend the record by supplying now the needed exception to the overruling of the motion for a new trial.
It was held in Dorman v. Coon (1893), 119 Mo. 68 (24 S.W. 731) that, even the express consent of counsel could not give force or vitality to exceptions preserved after the expiration of the time allowed to file them in the circuit court.
This ruling rests upon the plain and unambiguous terms of the statute requiring the record in a cause to close at a certain point after the lapse of the term of judgment. R. S., 1889, sec. 2168.
The record can only be kept open thereafter, in the manner prescribed by that section. If the extended...
To continue reading
Request your trial
-
Danforth v. Lindell Railway Company
...S.W. 715 123 Mo. 196 Danforth et al., Appellants, v. Lindell Railway Company Supreme Court of MissouriJune 18, 1894 Rehearing Denied 123 Mo. 196 at 202. from St. Louis City Circuit Court. -- Hon. D. D. Fisher, Judge. This case came to the court in banc from the first division, upon the foll......