Hof v. St. Louis Transit Co.

• Citation: 111 S.W. 1166,213 Mo. 445
• Parties: HOF v. ST. LOUIS TRANSIT CO.
• Decision Date: 30 May 1908
• Court: United States State Supreme Court of Missouri

111 S.W. 1166

213 Mo. 445

HOF v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

May 30, 1908.

Rehearing Denied June 3, 1908.

1. PLEADING—ELECTION BETWEEN CAUSES OF ACTION—MOTION TO COMPEL—WAIVER OF OBJECTION TO RULING.

A defendant answering over and going to trial on the merits, instead of standing on his motion to require plaintiff to elect as to which of two causes of action stated in the petition he will go to trial on, abandons the motion, and cannot raise the question on appeal.

2. STREET RAILROADS—COLLISIONS—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

Whether a person struck by a street car at a crossing was guilty of contributory negligence precluding a recovery, held, under the facts, for the jury.

3. DAMAGES—LOSS OF PROPERTY.

A person struck by a street car negligently operated, who was in no manner responsible for the collision, may recover for the loss of money and jewelry, caused by the collision.

4. STREET RAILROADS—INSTRUCTIONS.

An instruction in an action for injuries in a collision with a street car at a crossing, authorizing a recovery on finding that the operators of the car were negligent, and that such negligence "directly contributed to cause said collision," and that plaintiff exercised ordinary care, etc., is erroneous, for failing to require a finding that the negligence of the operators caused the injury, and for failing to limit the jury to a consideration of the acts of negligence alleged in the petition.

5. APPEAL AND ERROR—INVITED ERROR — RIGHT TO COMPLAIN.

Where the court has adopted an erroneous theory of a case at the instance of one or both of the parties, the party inviting the error will not be permitted to urge the error on appeal, for he must stand in the appellate court on the theory assumed by him in the trial court.

6. SAME.

The error in an instruction in an action for negligence, authorizing a recovery on the jury finding that the negligence of defendant "directly contributed to cause" the injury, is not invited by a requested instruction that plaintiff, if guilty of some negligence which "directly contributed to cause his injuries," could not recover, the requested instruction being correct, and not suggesting the error.

7. SAME.

A street railway company trying an action against it for injuries from a collision with a street car, on the theory that a city had the power to create by ordinance a civil liability in favor of citizens, and introducing in evidence an ordinance authorizing the running of cars at a maximum rate of speed, and asking an instruction recognizing the authority to pass the ordinance, cannot on appeal urge that the court erred in admitting the ordinance in evidence.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Action by Henry P. Hof against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

This is a suit, which was instituted by the plaintiff against the defendant in the circuit court of the city of St. Louis, to recover the sum of $30,000 damages for personal injuries and loss of property, caused by a collision between him and one of defendant's street cars, in the city of St. Louis. The petition upon which the case was tried, omitting formal parts, is as follows:

"The plaintiff, by leave of court, amends his petition, and states that the defendant is and at the times herein stated was a corporation by virtue of the law of Missouri, and used and operated the railway and car herein mentioned for the purpose of transporting persons for hire from one point to another in the city of St. Louis; that at said times McNair avenue and Victor street at the places herein mentioned were open public streets within the city of St. Louis; that on the 21st day of August, 1900, the plaintiff was riding his horse southward on McNair avenue and Victor street in the city of St. Louis, when defendant's servants in charge of its east-bound car on Victor street carelessly and negligently, and without any warning by bell or otherwise of the approach of said car to said crossing, and whilst running said car at a negligent and excessive rate of speed, and without using ordinary care to look out for persons and animals upon said crossing, and to control said car and moderate and stop said car, caused and suffered said car to run against and upon plaintiff's horse, knocking him down and dragging said plaintiff and horse a great distance, and causing the plaintiff great and permanent injuries upon his head, body, shoulders, and arms, and greatly lacerating plaintiff's face and the process of the skull, and causing a great and permanent injury to the plaintiff's nervous system and scarifying his head and face for life. And also breaking the cap of knee of plaintiff's horse so as to destroy the value of said horse, and causing plaintiff to lose $430 in currency and also one ruby, of the value of $55 and to damage the setting to the extent of $35, and injure his clothing. And for another and further assignment of negligence, the plaintiff avers that at the time of his said injuries and loss there was in force within the city of St. Louis an ordinance of said city by which it was provided that conductors and motormen of street cars should keep a vigilant watch for persons either upon the track or moving towards it, and upon the first appearance of danger to such person the car should be stopped within the shortest time and space possible, and the plaintiff avers that at the time of said collision defendant's motorman and conductor in charge of said car failed to keep such vigilant watch and failed to stop said car within the shortest time and space possible upon the first appearance of danger to plaintiff and his horse; which violation of said ordinance directly contributed to cause the plaintiff's injuries and damages. And for another assignment of negligence the plaintiff avers that at the time of said collision there was in force within the city of St. Louis an ordinance thereof by which it was provided that street cars should not be run at said place, or in the city of St. Louis, at a greater speed than eight miles per hour. Yet the plaintiff avers that at the time of said collision said car was being run at a speed greatly in excess of eight miles per hour, to wit, about twenty-five miles per hour, which violation of said ordinance directly contributed to cause said collision and plaintiff's injury and damage; that by the injury to his horse the plaintiff was damaged in the sum of $225; that he lost $430 in cash from his pocket; that he lost one ruby of the value of $55, and his clothing to the value of $32.50 were injured and destroyed; that by said injuries to his person the plaintiff has suffered and will suffer great pain of body and mind, has been permanently disabled from labor and from his avocation as a merchant and sales stable, and he has lost and will lose the earnings of his labor and his said business. He has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, and is maimed for life to his total damage in the sum of $30,000, for which sum he prays judgment."

The defendant filed the following answer (caption and signatures omitted): "Comes now the defendant in the above-styled cause, and, answering the plaintiff's petition herein, denies each and every allegation thereof. Wherefore, having fully answered, defendant prays to be discharged with its costs. For another and further defense to said petition defendant avers that if the plaintiff was injured, as charged in said petition, it was by reason of the carelessness and negligence of the plaintiff directly contributing thereto. Wherefore, having fully answered, defendant prays to be discharged with its costs."

The reply was a general denial. The cause was tried September 6 and 7, 1901, and resulted in a verdict and judgment for the plaintiff against the defendant for the sum of $7,000. Motions for a new trial and in arrest of judgment were overruled and exceptions saved, and an appeal was duly taken to this court. At the close of plaintiff's evidence and again at the conclusion of all the evidence in the case defendant offered an instruction in the nature of a demurrer to the evidence, each of which was by the court overruled, and defendant duly excepted.

The plaintiff's evidence tended to prove that plaintiff's injuries were caused by a collision with one of defendant's electric cars at the junction of McNair and Victor streets, in the city of St. Louis; that an east-bound car on Victor street was passing the intersecting street, McNair, about 8 o'clock p. m., without any signal being given, and was running at the rate of 20 to 30 miles an hour. Plaintiff was riding horseback, southward, on his way home, along McNair street, which crossed that on which defendant's car line ran. Near the center of the junction of those streets hung an electric arc light with a hood over head, casting a strong light in a limited circle below its position. Outside of that circle was a large area of dense shadow. The approaching car had a low headlight on the body of the car, and approached plaintiff on a rising grade. On the northwest corner of McNair and Victor streets stood a two-story grocery store, on a building line, the usual distance back from the curb. Near the curb at the corner there were two tall trees with dense foliage, and the lowest branches of which were 7 or 8 feet above the ground. At 10 feet distance north of the track, the side from which the plaintiff was coming, one could only see down Victor street about 50 or 60 feet. Both of said streets were improved and were 35 feet in width, from curb to curb. As plaintiff approached Victor street his horse was moving in a slow lope until about 15 feet of the north crossing of Victor street, when he slowed up to a rate not much faster than a walk. He looked west, from which direction the cars...