Kern v. United Railways Company of St. Louis

• Decision Date: 04 March 1924
• Citation: 259 S.W. 821,214 Mo.App. 232
• Parties: ANDREW J. KERN, Administrator of the Estate of THEODORE KERN, Deceased, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

259 S.W. 821

214 Mo.App. 232

ANDREW J. KERN, Administrator of the Estate of THEODORE KERN, Deceased, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

March 4, 1924

Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.

AFFIRMED.

Judgment affirmed.

Charles W. Bates, T. E. Francis and John F. Evans for appellant.

(1) The court erred in overruling the objection to the introduction of any evidence in the case on the ground that the petition failed to state facts sufficient to constitute a cause of action, for the reason that the petition fails to show whether or not plaintiff's decedent was a minor or an adult person at the time of his death. R. S. 1919, ch. 26 art. I, sec. 4217; Chandler v. Railroad, 251 Mo 592, and cases cited; McIntosh v. Railway Co., 103 Mo. 131; Troll v. Laclede Gas Light Co., 182 Mo.App. 600. (2) The demurrer to the evidence should have been sustained, for the following reasons: (a) The plaintiff submitted his case on the theory that deceased boarded a moving street car and was thrown by a sudden increase in the speed of the car. Having committed himself to this theory, he can only recover by proving that the increase in the speed of the car was unusual and extraordinary. Gunn v. United Railways Co., 270 Mo. 517; Schepers v. Union Depot Ry. Co., 126 Mo. 655; Rooker v. Railway Co. , 204 S.W. 556. (b) The evidence fails to show that the movement of the car was unusual. Elliott v. Railroad, 236 S.W. 17; Guffey v. Railroad, 53 Mo.App. 462; Hawk v. Railroad, 130 Mo.App. 658; Babbit v. Railroad, 169 Mo.App. 424; Gunn v. U. R. Co., 270 Mo. 517.

Harry P. Rosecan and John A. Gilliam for respondent.

SUTTON, C. Allen, P. J., and Becker and Daues, JJ., concur.

OPINION

SUTTON, C.

This is an action to recover damages for the wrongful death of Theodore Kern. At the time of the injury which caused decedent's death the defendant owned and operated a street car line on Olive street in the city of St. Louis, running east and west through the city and crossing Garrison avenue. The northeast corner of the intersection of Olive street and Garrison avenue, just east of Garrison avenue, was a regular and usual place for discharging and receiving passengers. It was at this place that the decedent received the injuries which caused his death.

The evidence tends to show that decedent went to this place, intending to take passage on one of defendant's street cars going west; that seeing a car approaching the intersection, proceeding west, the decedent took a position in Olive street at the usual place for receiving passengers by defendant, and signaled his desire to board the car; that the approaching car had a trailer attached, and was equipped with automatic doors and step which were operated by the conductor by means of a lever provided for that purpose; that by the operation of this lever the doors were opened and the step lowered to receive and discharge passengers and were then closed before the car proceeded on its way; that the doors and step were usually kept closed while the car was in motion; that the doors were opened and the step lowered simultaneously; that when the doors were closed the step was raised to a vertical position and closed against the side of the car; that on the occasion in question, when the defendant's car approached the intersection of Olive street and Garrison avenue, the doors were open and the step lowered; that the car came almost to a stop for a second; that it slowed down until it was barely moving so that it was difficult to determine whether it was moving or whether it had stopped; that thereupon the decedent placed his foot on the step and reached for the handrail in attempting to board the car; that at this instant the car suddenly started forward with a jerk, and defendant was thereby thrown back under the trailer and dragged to his death.

The witnesses graphically described the accident, as follows:

"The car was approaching the corner, the brakes were squeaking on the car and it came to a sudden stop almost for a second, and all of a sudden, just that quick, it went off full speed almost. It came to almost a standstill for a second and all of a sudden it jerked that quick."

"The car started to stop for a moment and then started up again. Kern had attempted to board the car. He had one foot on the car, on the step, and was reaching to get a hand on the rail, then the car started with a jerk, and threw him from the step. He fell right back under the trailer. When he put his foot on the step the car was almost stopped, the door was open and the step was down and he put his foot on the step and there was a sudden jerk which threw him. When he put his foot on the step the car started off, started with a jerk. It threw Kern from the step. He fell under the trailer. They dragged him about three hundred feet before the car stopped. When the car got there where he attempted to board it, the step was down and the doors open."

"This car coming down had the doors open and the step down and as it came down to the corner of Garrison avenue and Olive street it slowed up. When it reached the corner it came to a standstill for a second and suddenly started. Just as the car started off Kern had his one foot on the step and just as he attempted to grab the handrail the car started off. He missed his hold and fell back against the trailer. The trailer knocked him down and he was caught underneath the step on the trailer and it dragged him about three hundred feet on Olive street. As he put his foot on the step the car suddenly started forward--suddenly started off."

The evidence showed that decedent at the time of his death was twenty-one years old, and left surviving him his father and mother, one brother, and two sisters.

The cause was tried to a jury. There was a verdict and judgment for plaintiff for the sum of $ 7500. After an unavailing motion for a new trial, defendant appealed.

At the commencement of the taking of testimony in the trial of the cause the defendant demurred to the petition ore tenus , by objection to the introduction of any evidence, on the ground that it failed to state facts sufficient to constitute a cause of action, in that it failed to show whether or not decedent was a minor or an adult person at the time of his death. And the ruling of the court thereon, being adverse to defendant, is assigned here as reversible error.

The action is brought under section 4217 of the wrongful death statute, Revised Statutes of Missouri, 1919. The statute provides that for the death of any person caused by the negligence of any street railway corporation, whilst running, conducting, or managing, any street car or cars, such corporation shall forfeit and pay the sum of not less than $ 2000 and not exceeding $ 10,000, which may be sued for and recovered, (1) by the husband or wife of the deceased, or (2) if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of deceased, or (3) if the deceased be a minor and unmarried, then by the father and mother, or (4) if there be no husband, wife, minor child, or minor children, or if the deceased be an unmarried minor, there being no father or mother, then by the administrator or executor of the deceased.

The petition shows on its face that the father and mother, one brother, and two sisters, of deceased survived him. If the deceased was a minor at the time of his death the cause of action accrued to his father and mother. If he was an adult at the time of his death the cause of action accrued to his administrator to the use and benefit of the father, mother, brother, and sisters.

Defendant's counsel insist that because the petition does not expressly allege that decedent was not a minor at the time of his death, it therefore fails to state a cause of action in the plaintiff as administrator of decedent's estate.

No demurrer to the petition was filed. The only demurrer offered was the demurrer ore tenus, by objection to the introduction of testimony, on the ground that the petition stated no cause of action. Such a demurrer will not reach mere uncertainty or indefiniteness of averment, or the defect of pleading legal conclusions. Such a method of attack smacks of the ambuscade and of a digging of pitfalls for the unwary, and is unavailing, if by reasonable intendment, or by fair implication from the facts stated, or if by a most liberal construction, the essential allegation may be got at by inference. While the courts recognize the right of a defendant to attack the petition by objection to the introduction of testimony, yet such practice is only tolerated, and, when substituted for a demurrer, the most liberal intendment is made in favor of the petition, and if a matter material to plaintiff's cause of action be not expressly averred, but the same be necessarily implied from what is expressly averred, the defect is cured by verdict. The rule to go by in the disposition of such objection is the same bland rule applied to rulings on motions in arrest wherein the grace of every implication is allowed to aid the verdict and mere ambiguity in allegation is resolved in its favor. The fair way to challenge the sufficiency of a petition is by demurrer in the beginning, so that, if it is adjudged insufficient, and is susceptible of amendment, the fault may be corrected. If a party lies in wait for his adversary the court should not allow him an advantage that he could not have attained in the open field. So read the decisions. [State ex inf. Major v. Arkansas Lumber Co., 260 Mo. 212, l. c. 283, 169 S.W. 145; Coliseum Athletic Ass'n. v. Dillon, 204 Mo.App. 504, l. c. 512,...