Kern v. United Rys. Co. of St. Louis

Decision Date04 March 1924
Docket NumberNo. 18159.,18159.
PartiesKERN v. UNITED RYS. CO. OF ST. LOUIS.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Andrew J. Kern, administrator of the estate of Theodore Kern, deceased, against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and John P. Evans, all of St. Louis, for appellant.

Harry P. Rosecan and John A. Gilliam, both of St. Louis, for respondent.

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 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 300 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 band rail 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 300 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 21 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 $7,500. 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 $2,000 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 ruling 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, loc. cit. 283, 169 S. W. 145; Colliseum Athletic Ass'n v. Dillon, 204 Mo. App. 504, loc. cit. 512, 223 S. W. 955; East St. Louis Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 685, loc. cit. 702, 142 S. W. 253; Young v. Shickle, Harrison & Howard Iron Co., 103 Mo. 324, loc. cit. 327, 15 S. W. 771; Haseltine v. Smith, 154 Mo. 404, loc. cit. 413, 55 S. W. 633; Burkard v. Rope Co., 217 Mo. 466, loc. cit. 483, 117 S. W. 35; State ex rel. v. Delaney, 122...

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