Hite v. Metropolitan Street Railway Company

• Court: Missouri Supreme Court
• Writing for the Court: Burgess, J.
• Citation: Hite v. Metropolitan Street Railway Company, 31 S.W. 262, 130 Mo. 132 (Mo. 1895)
• Decision Date: 12 July 1895
• Parties: Hite v. Metropolitan Street Railway Company, Appellant

31 S.W. 262

130 Mo. 132

Hite v. Metropolitan Street Railway Company, Appellant

Supreme Court of Missouri, Second Division

July 12, 1895

130 Mo. 132; 31 S.W. 262

Original Opinion of July 12, 1895, Report at: 130 Mo. 132.

OPINION ON REHEARING.

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 the 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 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. Railroad, 101 Mo. 36, 13 S.W. 946) and when this is done there can be but one...