Heigold v. United Railways Co. of St. Louis
Decision Date | 13 April 1925 |
Citation | 271 S.W. 773,308 Mo. 142 |
Parties | ARTHUR C. HEIGOLD v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court; Hon. Charles B Davis, Judge.
Affirmed.
T E. Francis and John F. Evans for appellant.
(1) Instruction 1 is erroneous (a) Plaintiff was guilty of contributory negligence as a matter of law which would bar recovery on the theory set out in the instruction, namely failure to observe the provisions of the Vigilant-Watch Ordinance. Gubernick v. United Rys. Co., 217 S.W. 33; Pinkard v. Wells, 249 S.W. 426; Fagan v. Wells, 261 S.W. 686. The action of plaintiff in going upon the tracks in front of the approaching car was negligence. McCreery v. Rys., 221 Mo. 18; Huggart v. Railroad, 134 Mo. 673; Cole v. Ry. Co., 121 Mo.App. 605; State ex rel. v. Reynolds, 233 S.W. 219; Evans v. Railroad, 289 Mo. 493; Kelsay v. Railroad, 129 Mo. 362; Gumm v. Railroad, 141 Mo.App. 306. Plaintiff could not rely upon the presumption that the car would stop for passengers. McMiens v. Railways, 274 Mo. 326. He could not rely upon obedience to the law by defendant, to the extent of failing to use his senses for his own protection. Keele v. Railroad, 258 Mo. 62; Paul v. Railways, 152 Mo.App. 577. (b) The instruction ignored the defense of contributory negligence pleaded in the answer. Quinn v. Van Raalte, 276 Mo. 100; State v. Hilton, 234 Mo. 559; Enloe v. American Car Co., 240 Mo. 443; State v. Stubblefield, 239 Mo. 526; Alexander v. Railways, 231 S.W. 66; Riegel v. Biscuit Co., 169 Mo.App. 515; Hall v. Coal & Coke Co., 260 Mo. 369. (2) The court erred in refusing to sustain defendant's motion for new trial on the ground that the verdict is excessive. Holzemer v. Met. St. Ry. Co., 261 Mo. 379, 169 S.W. 102; Parks v. U. R. Co., 235 S.W. 1067; Gilchrist v. Rys. Co., 254 S.W. 161; Kiefer v. City, 243 S.W. 104; Crockett v. Rys. Co., 243 S.W. 104; Simon v. Brass Mfg. Co., 250 S.W. 74.
Mark D. Eagleton for respondent.
(1) Plaintiff was entitled to recover under the Vigilant-Watch Ordinance. Lackey v. United Rys. Co., 231 S.W. 961; Mason v. United Rys. Co., 246 S.W. 323; State ex rel. Vogt v. Reynolds, 244 S.W. 929. (2) The only defense relied upon by the defendant was that the plaintiff had stepped immediately in front of the street car and so close thereto as to cause the collision. This defense was set up in the answer and submitted in the only instruction requested by the defendant. It was not necessary for the plaintiff to negative such defense in his instruction. State ex rel. Jenkins v. Trimble, 236 S.W. 651; Jackman v. Ry. Co., 231 S.W. 978; Varley v. Taxicab Co., 240 S.W. 218.
Action for personal injuries. Plaintiff was a pedestrian crossing Union Avenue in the city of St. Louis, when he was struck by one of defendant's street cars, at the time operated upon and over such avenue. The date of injury is fixed as of December 6, 1916. The acts of negligence pleaded in the amended petition upon which the cause was tried are as follows:
The amended answer, filed December 6, 1922, is (1) a general denial and (2) pleas of contributory negligence. Reply was a general denial. Plaintiff upon a conclusion of the trial had a verdict for $ 15,300. From a judgment upon such verdict the defendant has appealed.
For the plaintiff, the cause was submitted to the jury upon the following principal instruction:
"The court instructs the jury that if you find and believe from the evidence that on the 6th day of December, 1916, the defendant was engaged in the business of owning and operating street cars as a carrier of passengers for hire, in the city of St. Louis, Missouri; and if you find that it then owned and operated a line of street railway known as the Union Avenue Line, along Union Avenue, in the city of St. Louis; and if you find that said Union Avenue was an open, public street and highway in the city of St. Louis; and if you find that on December 6, 1916, defendant maintained a street-car track in said street and operated street cars upon and along said track; and if you further find and believe from the evidence that on said 6th day of December, 1916, the plaintiff was traveling on foot upon said Union Avenue, and either on or moving towards defendant's said street car track there (if you do so find), and that one of defendant's said Union Avenue Line street cars was then and there operated by defendant along said track toward the plaintiff, and if you find and believe from the evidence that defendant's motorman in charge of and operating said street car (if you do so find) by keeping a vigilant watch for persons moving towards or upon the defendant's said track would and could have seen the plaintiff upon or moving toward said track and in danger of being struck by said street car (if you find plaintiff was in such danger), and that thereafter, by stopping said car within the shortest time and space possible under the circumstances, with due regard for the safety of the street car and the passengers thereon, would and could have avoided colliding with plaintiff, and if you find that he failed and neglected to do so; and if you find that said car did then and there collide with and injure the plaintiff; and if you find that said collision, if any, and plaintiff's injuries, if any, directly and proximately resulted from the failure of defendant's motorman to keep such vigilant watch (if you find that he did fail to do so), or failure to stop said car in the aforesaid time and space and under the aforesaid circumstances (if you find that he did so fail), then your verdict must be in favor of plaintiff and against the defendant.".
Counsel for appellant have made assignments of error covering only two questions, as follows:
The questions for discussion fall into a small compass, by reason of the assignments of error, supra. The facts will be taken in connection with the two points urged.
I. The record shows that at the close of plaintiff's case the defendant asked an instruction in the form of a demurrer to plaintiff's evidence, which was overruled, and defendant excepted to the action of the court. Such an instruction was not renewed at the close of the whole case, and the refusal of the one at the close of plaintiff's case is not assigned as error, in the assignments of error. As shown in our statement there are but two assignments of error, which we have quoted in full. From it all it is apparent that defendan...
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