Heigold v. United Rys. Co.
Decision Date | 13 April 1925 |
Docket Number | No. 25001.,25001. |
Parties | HEIGOLD v. UNITED RYS. OC. OF ST. LOUIS. |
Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.
Action by Arthur C. Heigold against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.
T. E. Francis and John F. Evans, both of St. Louis, for appellant.
Mark D. Eagleton, of St. Louis, for respondent.
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 the 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, Mo., 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, Mo., and if you find that said Union avenue was an open public street and highway in the city of St. Louis, Mo.; 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 defendant has abandoned the idea that plaintiff made no case for the jury, if in fact it ever seriously considered that such was the case. In view of the assignments of error (which are the sole questions for our consideration), we do not have the sufficiency of proof to make a case for the jury before us on this appeal.
Defendant in its assignment of errors does not urge the question, and it is not for the court to urge such question for defendant. The first assignment of error is peculiar, in that it refers to the first point of "points and authorities" for the specifications, and this point only urges the contributory negligence of the plaintiff. So, going to all the matters urged by assignment No. I, the defendant is not now insisting that the defendant was not guilty of negligence at the time and place of the accident. At least that particular question is out of the consideration now.
II. A careful reading of instruction No. I given for the plaintiff shows that this case was submitted to the jury under the vigilant watch ordinance of the city of St. Louis. Under its point I the defendant urges that this instruction was erroneous. First it is said that plaintiff was guilty of contributory negligence as a matter of law, and this in the face of the fact that defendant has abandoned here its demurrer to the evidence, as pointed out previously. After much division of opinion, and long consideration, this court finally reached the conclusion that the vigilant watch ordinance placed upon a street railway a greater degree of care, than mere ordinary care prescribed at common law. Not only so, but a greater decree of care (in some places) than imposed by the humanitarian rule. State ex rel. Vogt v. Reynolds, 295 Mo. 375, 244 S. W. loc. cit. 933. Among other things at page 933 of the Vogt opinion, we said (295 Mo. 388):
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