Hite v. Metropolitan St. Ry. Co.

• Decision Date: 12 July 1895
• Citation: 130 Mo. 132,32 S.W. 33
• Parties: HITE v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

32 S.W. 33

130 Mo. 132

HITE v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri.

July 12, 1895.

ACTION AGAINST CARRIER — INJURY TO PASSENGER.

Where, in an action for injury from being thrown from a cable car while rounding a curve, the evidence clearly shows that the accident was caused by a lurch of the car on account of its speed, and that its speed was necessary to carry the car around the curve, a demurrer to the evidence should be sustained.

On rehearing. Denied.

For former opinion, see 31 S. W. 262.

BURGESS, J.

It is insisted by plaintiff that the evidence adduced by her made out a prima facie case, which entitled her to a verdict, unless overcome by defendant, which was a question for the jury. This is unquestionably the law where there is any substantial evidence introduced on the part of a plaintiff to sustain the allegations in the petition, as the authorities cited by counsel for plaintiff in their brief abundantly show, but is not the law where the facts necessary to be proven in order to entitle plaintiff to recover are merely inferential or conjectural. The evidence clearly showed that the only way the cars could be operated around the curve where the accident happened was by the speed of the cable, and that the lurch or lunge which precipitated plaintiff from the car was incident to its operation, and could not be avoided. These facts were undisputed. Therefore, the demurrer to the whole evidence should have been sustained. There is no evidence upon which to predicate the verdict, and it was the plain duty of the trial court to have sustained the demurrer thereto, as well, also, as to have set the verdict aside, on motion of defendant, because of the want of evidence to support it. The interposition of the demurrer at the close of the case requires us to review the evidence, taken as a whole. Hilz v. Railway Co., 101 Mo. 36, 13 S. W. 946; and, when this is done, there can be but one conclusion, and that is that the plaintiff was not entitled to recover. "When the evidence is of that character that the trial judge would have a plain duty to perform in setting aside the verdict as unsupported by the evidence, it is his duty and prerogative to interfere before submission to the jury, and direct a verdict for the defendant." Jackson v. Hardin, 83 Mo. 175; Powell v. Railroad Co., 76 Mo. 80; Reichenbach v. Ellerbe, 115 Mo. 588, 22 S. W. 573. We have carefully considered the motion for a rehearing filed by plaintiff, and all of the...