Jaggard v. Metropolitan Street Railway Company

• Decision Date: 02 March 1915
• Citation: 174 S.W. 371,264 Mo. 142
• Parties: ARCHIBALD W. JAGGARD, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY
• Court: Missouri Supreme Court

174 S.W. 371

264 Mo. 142

ARCHIBALD W. JAGGARD, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.

Affirmed.

Gage Ladd & Small for appellant.

(1) Counsel for defendant, in spite of objection by plaintiff was permitted to make improper remarks in his argument to the jury. This was error. Nephler v. Woodward, 200 Mo 187; Allen v. Lumber Co., 171 Mo.App. 506; Cain v. Wintersteen, 144 Mo.App. 5; Ramp v. Railroad, 133 Mo.App. 704; Allen v. Transit Co., 183 Mo. 423; Benjamin v. Railroad, 245 Mo. 614; Hudson v. Railroad, 101 Mo. 30; Collett v. Kuhlman, 243 Mo. 591; White v. United Railways, 250 Mo. 476. (2) Defendant's instruction number 4 was error.

John H. Lucas, W. H. H. Piatt and Thomas R. Marks for respondent.

Appellant cannot complain of respondent's instruction number 4. The instruction is more onerous upon respondent than the law requires, but it follows appellant's instruction number 1. The criticism of the instruction by appellant is, in last analysis, an attempt to submit in this court an issue or charge of negligence not submitted in the trial court nor alleged in the petition, viz., negligence in running the car at a rate of speed in excess of the rate prescribed by city ordinance. Negligence in this respect was abandoned by plaintiff when he submitted the case under the last chance rule and moreover the appellant saw the car coming and knew the dangerous and excessive speed at which it was running and that same was in violation of the ordinance. Under such circumstances he has no case. Schmidt v. Railroad, 191 Mo. 215; Roenfeldt v. Railroad, 180 Mo. 566.

OPINION

BLAIR, J.

The judgment appealed from was rendered on a verdict for defendant in an action for damages for injuries plaintiff alleges he received when a wagon in which he was riding was struck at a street crossing by defendant's car.

In substance, the petition charges defendant's employees negligently ran the car against the wagon in which plaintiff was riding and that such employees discovered or, in the exercise of ordinary care, could have discovered plaintiff's peril in time to have stopped the car and to have averted the danger but negligently failed to do so, etc.

The collision occurred at the point at which the Nineteenth street car line crosses Cherry street. The wagon was being driven by an employee of plaintiff and proceeded along Cherry street and thence into Nineteenth street and upon the crossing and was struck.

The evidence varied as to the distance the car was west of the crossing at the moment the wagon first could have been seen by the motorman. The evidence as to the speed of the car was conflicting, estimates ranging from fifteen to twenty-five or more miles per hour. Plaintiff testified he saw the car before the wagon reached the track, and testified it was approaching with great rapidity, using a profane but striking hyperbole to indicate its speed. There was also a conflict of evidence on the questions whether the motorman made sufficient effort to stop the car and whether it could have been stopped at all after he saw plaintiff's peril and before the collision occurred.

Three instructions were given at plaintiff's request. The second defined ordinary care, and the third dealt with the measure of damages. The first stated the motorman's duty to keep a vigilant watch, and proceeded:

"If therefore, you believe from the evidence that the plaintiff was, at the time and place in question, in a position of imminent peril of being struck by the car mentioned in the evidence by reason of the fact that the team or the wagon attached thereto in which he was riding was upon the railroad track or upon Nineteenth street and approaching the track upon which said car was running and that the motorman saw him or said wagon and the persons therein, in such position of danger, if any, or by the exercise of ordinary care could have so seen it or them in time to have slackened the speed of said car or to have stopped the same by the exercise of ordinary care and thus have avoided striking the wagon and injuring the plaintiff, but negligently and carelessly failed to do so, and if you further believe from the evidence that by reason of the foregoing careless and negligent acts of the said motorman, if you find them to have been careless and negligent, the wagon in which plaintiff was riding was struck and plaintiff was thrown out of the same and injured, then your verdict must be for the plaintiff, even although you may also believe and find from the evidence that the plaintiff or his driver, or both of them, were guilty of negligence contributing to ...