Foy v. United Rys. Co.
| Citation | 243 S.W. 185 |
| Decision Date | 05 July 1922 |
| Docket Number | No. 17694.,17694. |
| Parties | FOY v. UNITED RYS. CO. OF ST. LOUIS. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.
"Not to be officially published."
Action by Mary Foy against the United Railways Company of St. Louis. Judgment for "plaintiff, and defendant appeals. Affirmed.
Charles W. Bates, T. E. Francis, and G. T. Priest, all of St. Louis, for appellant.
Second appeal. Upon the first appeal (Foy v. United Railways Co., 205 Mo. App. 521, 226 S. W. 325), we reversed a judgment for plaintiff because of an erroneous instruction. At the second trial following the verdict of a jury, plaintiff again had judgment, from which defendant appeals, asserting error in the action of the trial court in refusing to sustain its demurrer to the evidence, in the giving of instructions on behalf of plaintiff, and in permitting plaintiff's counsel to argue to the jury a ground of negligence not charged in the petition.
As to the demurrer: Defendant claims that plaintiff and the driver of the automobile, for whose acts plaintiff was concededly responsible, was guilty of contributory negligence as a matter of law. This same question was here before. It will be unnecessary to again state the facts bearing on the issue, as they were fully stated in the former opinion, reported in 205 Mo. App. 521, 226 S. W. 325. We there ruled that under the facts neither plaintiff nor the driver was guilty of negligence as a matter of law. The facts as shown by the present record do not substantially differ. The slight variances that exist are not such as to change the result. As the matter is strenuously urged by counsel, we have again gone over the cases, and adhere to our former ruling. Having reviewed the evidence on the first appeal and concluded the case was one for the jury, that decision is the law of the case on the subsequent appeal where the evidence is substantially the same. The question is res adjudicate. Benton v. City of St. Louis, 248 Mo. 98, 154 S. W. 473; State ex rel. v. Broaddus, 238 Mo. 189, 142 S. W. 340.
As to the instructions: Complaint is made of plaintiff's first instruction, which is based on a violation of the vigilant watch ordinance of the city of St. Louis. It is said that it fails to define what is meant by "negligently failed to keep a vigilant watch," and further that the instruction imposes a greater duty on defendant than the law requires, in that it requires the motorman to stop the car in the shortest time and space possible, whereas defendant is liable only if the motorman failed to stop the car "by the exercise of ordinary care," with the means and appliances at hand, etc. The objections lodged against the instruction are fully answered in a recent case decided by our Supreme Court. State ex rel. Vogt v. Reynolds et al.1 (opinion filed June 26, 1922, not yet reported). The part of the instruction complained against is as follows:
"The motorman in charge of said car carelessly and negligently failed to keep a vigilant watch when at or near the intersection of Olive street with Theresa avenue for vehicles upon the track and moving toward it, and carelessly and negligently, upon the first appearance of danger to plaintiff while thus riding upon said track, failed to stop said car in the shortest space and time possible with the means and appliances at hand and with safety to the passengers of said car."
Under the authority of the Vogt Case, we rule the point against defendant.
Error is also assigned because of the giving of plaintiff's instruction No. 2, which is based upon a violation of the speed ordinance of the city a St. Louis, one of the grounds of negligence charged. The instruction told the jury that if they believed from the evidence that the motorman in charge of the car was then and there running said car at a greater rate of speed than 10 miles per hour, and that the collision was directly caused by said car being run at a greater rate of speed than ten miles per hour, etc., then the plaintiff Is entitled to recover. It is said the instruction assumes that the car was violating the ordinance. The ordinance rate in the district where the collision occurred was 10 miles per hour. The instruction required the jury to find that the car was going more than 10 miles per hour. If they found such fact, that constituted a violation of the ordinance, the provisions of which the court had a right to assume, considering the fact that there was no controversy about its provisions. The ordinance was admitted in evidence without objection, and the fact that there was an ordinance in force providing the rate of speed was not a controverted issue in the case. No act of counsel indicated that the matter assumed was in dispute. Tinder the...
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