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

• Decision Date: 05 April 1910
• Citation: 128 S.W. 5,147 Mo. App. 677
• Parties: KNITTEL et al. v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

128 S.W. 5

147 Mo. App. 677

KNITTEL et al. v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

April 5, 1910.

Rehearing Denied May 17, 1910.

1. STREET RAILROADS (§ 114)—INJURIES TO PERSONS ON TRACK — NEGLIGENCE — SUFFICIENCY OF EVIDENCE.

In an action against a street railroad company for death of a boy run over by defendant's car, evidence held to show that defendant's motorman was negligent in failing to keep a lookout.

2. STREET RAILROADS (§ 113)—INJURIES TO PERSONS ON TRACK — EXCESSIVE SPEED — EVIDENCE.

In an action for death of a child struck by defendant street railroad company's car, testimony that defendant's motorman, in passing a school from which a large number of children had just been dismissed, ran the car faster than cars usually ran on that street, was evidence to prove that the speed was too high considering the locality.

3. APPEAL AND ERROR (§ 1033)—HARMLESS ERROR.

One may not on appeal complain of error in his favor.

4. EVIDENCE (§ 123)—RES GESTÆ.

In an action for the death of a child run over by defendant street railroad company's car, testimony that almost instantly after the accident defendant's motorman, while lowering the window to look out and see what had happened, asked witness if there was a dog under the car, was res gestæ and admissible, throwing a light on the state of the motorman's mind at the time.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Charles Knittel and another against the United Railways Company of St. Louis. Judgment for plaintiffs, and from an order granting a new trial they appeal. Affirmed and remanded.

Lee Sale, for appellants. Boyle & Priest, Robt. E. Moloney, and Glendy B. Arnold, for respondent.

GOODE, J.

Appeal from an order granting a new trial on defendant's motion. The grounds assigned in the order for the court's action in allowing a new trial were, in effect, these: The court had committed error in refusing to sustain a demurrer to plaintiffs' evidence, in giving erroneous instructions for plaintiffs, and in giving erroneous instructions on the court's own motion. A memorandum was filed by the court and brought up with the appeal as part of the bill of exceptions, which sets forth the reason why the court deemed it had committed error in the particulars mentioned. Stated briefly, the reason was the court thought plaintiffs had put in no evidence to prove defendant company was operating the street railway car at the time of the accident, or had said car under its control; hence instructions authorizing a verdict against it, if certain facts were found, should not have been given. The action is one to recover damages for the death of a son of plaintiffs, who was killed, at the age of seven years, by being run over by an electric car on south Broadway in the city of St. Louis, not far from the intersection of said street with Wisconsin avenue. The fatality happened February 27, 1907, and between 3 and 4 o'clock in the afternoon. It will be seen an essential ingredient of the cause of action against defendant was that the latter was in control of and operating the car through its employés and was responsible for their defaults. At the conclusion of the evidence for plaintiffs, the court below intimated doubt whether proof of this requisite fact had been made; whereupon plaintiffs' counsel said he thought sufficient proof had been introduced, and that he preferred to stand on the record as it then was, rather than reopen the case. Counsel for defendant refused to waive the point, but said he was in doubt about the proof having been introduced. Thereupon counsel for plaintiffs rested and defendant's counsel declined to introduce any testimony. The case was submitted to the jury under instructions, and a verdict was returned in favor of plaintiffs for $4,000.

Counsel for plaintiffs concedes in his brief no evidence was introduced to prove ownership of the car by defendant, but contends this point was waived by defendant's counsel by requesting instructions wherein the car was spoken of as "defendant's car," and the motorman who was operating it as "defendant's motorman." Co...