Deschner v. St. Louis & Meramec River Railroad Co.

Decision Date22 December 1906
Citation98 S.W. 737,200 Mo. 310
PartiesGEORGE DESCHNER, by Next Friend, NANCY C. DESCHNER, Appellant, v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Reversed and remanded (with directions).

Dodge & Mulvihill and A. C. Maroney for appellant; Walter H. Saunders of counsel.

(1) The order granting a new trial on the ground that "a peremptory instruction at the close of plaintiff's case should have been sustained," impliedly overruled the demurrer at the close of the whole case, since the motion for a new trial contained this as one of the grounds. In this condition of the record this court has nothing to review unless it is its duty to examine the whole record to see whether the final demurrer should have been sustained, though overruled when presented, and impliedly overruled by the terms of the order granting a new trial. Herdler v. S. & R. Co., 136 Mo. 3; Miller v. Madison Car Co., 130 Mo. 523; Candee v. Railroad, 130 Mo. 153. This court will only examine the grounds on which the motion for a new trial was sustained, in the absence of an affirmative showing by the party in whose favor the new trial was granted that it was properly set aside on other grounds. Emmons v. Quade, 176 Mo. 28. (2) The demurrer to the evidence both at the close of plaintiff's case and at the close of the whole case, was overruled by the trial court and should have been overruled, because the case ought to have been submitted to the jury, both as to the motorman's failure to ring his bell, and also as to his failure to comply with the Vigilant Watch ordinance, an ordinance under the police power (Sluder v. Railroad, 189 Mo. 107; Moore v Railroad, 194 Mo. 1), which is both pleaded and proved. The case was submitted to the jury on the former ground, but the court, at the defendant's request, instructed the Vigilant Watch ordinance out of the case -- on what theory we cannot conceive. The order of the court, granting a new trial, because the demurrer at the close of plaintiff's case should have been sustained is therefore, clearly erroneous. (3) The defendant, by introducing evidence, waived the demurrer to the plaintiff's evidence to the extent of assuming the risk of supplying, by its own evidence, the defects, if any, in the plaintiff's case; therefore, if the demurrer to the evidence can be considered at all, all the evidence must be examined, and the burden is upon the respondent, under the Candee case, supra, to show that the demurrer should have been given. Storck v. Mesker, 55 Mo.App. 31; Eswin v. Railroad, 96 Mo. 290; Weber v. Railroad, 100 Mo. 195. (4) In passing upon a demurrer, every inference is to be taken most strongly against the demurrant, and the court must indulge every inference of fact in favor of the party offering the evidence which a jury might indulge with any degree of propriety. Moore v. Railroad, 194 Mo. 1. (5) If there is any error in instruction 1 in failing to charge as to proximate cause, which appellant denies, because this form substantially has been used and approved (Koenig v. Railroad, 193 Mo. 717), it is cured by instruction 4, granted for defendant, which is very specific on this point, since all instructions must be read together. Austin v. Railroad, 115 Mo.App. 146; Freymark v. Railroad, 111 Mo.App. 208. The same theory was advanced in the instructions granted by the court of its own motion and those granted for defendant. Walker v. Railroad, 193 Mo. 480; Chinn v. Naylor, 182 Mo. 594. (6) When two street care are running in rapid succession in the same direction on a double track street railway, and a foot passenger looks for one, sees it, stops, lets it pass, looks in the other direction, and then steps on the track without again looking, and is immediately struck by the second car, it is always a question for the jury whether he used ordinary care, and this is particularly true as to a child of eleven years; and, under the facts developed in this record, showing it to be a regular station of the defendant for receiving and discharging passengers -- the platform placed there for this purpose -- and known to be such by the motorman. Moore v. Railroad, 95 Mo.App. 737, 194 Mo. 1. (7) Failure to ring the bell may be the proximate cause of the accident, and negligence, per se, under certain conditions. In this case the defendant assumed in its instructions that it was its duty to ring the bell. Foley v. McMahon, 114 Mo.App. 442; Koenig v. Railroad, 173 Mo. 698; Butler v. Railroad, 93 S.W. 877. (8) Whether or not a child of eleven years is guilty of contributory negligence is nearly always a question for the jury. The standard of ordinary care as to a child of eleven years, under such circumstances (submitted to the jury in this case), is necessarily a question for the jury, unless the court has the power in the present condition of this record, and is prepared to say that the accident was unavoidable. This was expressly submitted to the jury by instruction 5, given for defendant, and the jury found the accident was not a "mere accident without fault of anyone" or unavoidable. Butler v. Railroad, 93 S.W. 877; Walker v. Railroad, 193 Mo. 482; Schmitz v. Railroad, 46 Mo.App. 380; Beier v. Railroad, 94 S.W. 876; Mullin v. Railroad, 94 S.W. 288. (9) Unless the evidence of contributory negligence is so clear that there is no reasonable ground for two opinions about it, the court cannot pronounce the injured party's acts contributory negligence, as a matter of law, but should submit the case to the jury to decide the point, as a matter of fact. Young v. Waters-Pierce Oil Co., 185 Mo. 634; Holloway v. Kansas City, 184 Mo. 19; Erickson v. Railroad, 171 Mo. 647; Walker v. Railroad, 193 Mo. 482. (10) This case should be reversed, and, since the defendant has had its day in court, the verdict of the special jury should be reinstated and judgment entered thereon. Scullin v. Railroad, 184 Mo. 695; Heintz v. Railroad, 92 S.W. 353; Herdler v. S. & R. Co., 136 Mo. 3; Schmidt v. Railroad, 163 Mo. 645.

Jefferson Chandler and T. M. Pierce for respondent.

(1) The court did not err in holding that the case should not have been submitted to the jury at the close of the plaintiff's evidence. The physical facts and the testimony clearly showed that the plaintiff was the author of his own misfortune and that his injuries were directly caused by his own negligence in stepping in such close proximity to the defendant's car that it could not be stopped in time to have avoided striking him. Ries v. Railroad, 179 Mo. 1; Guyer v. Railroad, 174 Mo. 344; Schmidt v. Railroad, 192 Mo. 215. (2) It has ever been the rule in this State that there can be no recovery where the party injured gets upon a railway track at a public crossing or elsewhere without looking or listening for an approaching car, whether the defendant's negligence also contributed directly to produce her injury or not. Kelly v Railroad, 75 Mo. 140; Maher v. Railroad, 64 Mo. 267; Harlan v. Railroad, 64 Mo. 480; Zimmermann v. Railroad, 71 Mo. 476; Hanselman v. Railroad, 88 Mo.App. 123; Skipton v. Railroad, 82 Mo.App. 143; Molyneux v. Railroad, 81 Mo.App. 25. Likewise, it has been held that children and infants are chargeable with contributory negligence as a matter of law. Walker v. Railroad, 193 Mo. 453; Holmes v. Railroad, 190 Mo. 98; Graney v. Railroad, 140 Mo. 89; Payne v. Railroad, 146 Mo. 585. (3) It is a matter resting in the sound discretion of the trial court to determine as to the granting of a new trial, and all doubts as to the proper exercise of the discretion are resolved in favor of the action of such courts. Ins. Co. v. Curran, 45 Mo. 142; Baughman v. Fulton, 139 Mo. 557; Bank v. Armstrong, 92 Mo. 282. Even if the error pointed out in this instruction, taking all the instructions together, may not have been sufficient to reverse a judgment, yet, in support of the action of the trial judge, we must presume that the court, with its better knowledge of the trial, and the effect the error may have had upon the result, acted correctly. Bunyan v. Railroad, 127 Mo. 12. (4) The court erroneously instructed the jury. The trial court was manifestly correct in recognizing his mistake in having given instruction 1 for four reasons: First. Because it assumed as a matter of law that the motorman was negligent if he did not sound his bell or gong so as to give timely warning of the approach of the car. Koenig v. Railroad, 173 Mo. 725; Schmidt v. Railroad, 163 Mo. 645. Second. Because the instruction would warrant the jury in finding that the plaintiff was guilty of no negligence if he stepped in front of a moving car without looking or listening. Third. This instruction would also have warranted the jury in finding that the defendant was liable if it failed to sound a bell or gong as a warning to the plaintiff, whether such failure to sound a bell or gong was the immediate and proximate cause of the accident or not. Karle v. Railroad, 55 Mo. 477; Murray v. Railroad, 101 Mo. 236; Green v. Railroad, 192 Mo. 143. Fourth. There is no statement in the petition that plaintiff by virtue of his minority was lacking in understanding of the danger of the situation, which he experienced, as stated in the record. There was no issue made in the pleadings of the want of capacity of plaintiff, and, hence, there was nothing to submit to the jury in respect of that matter. 1 Thomp., Neg., sec. 384. (5) The error of the court in submitting the instruction herein criticised was not cured by any instruction of the defendant. The doctrine of aider does not apply. Clancy v. Railroad, 192 Mo. 652; Stewart v. Anders, 110 Mo.App. 243; Hamilton v. Railroad, 89 S.W. 894. (6) The petition of plaintiff fails...

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