Langston v. Southern Electric R. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWilliams
Citation147 Mo. 457,48 S.W. 835
Decision Date08 December 1898
PartiesLANGSTON v. SOUTHERN ELECTRIC R. CO.
48 S.W. 835
147 Mo. 457
LANGSTON
v.
SOUTHERN ELECTRIC R. CO.
Supreme Court of Missouri, Division No. 1.
December 8, 1898.

NEW TRIALS — NUMBER — OPINION EVIDENCE — HARMLESS ERROR.

1. A litigant complaining of erroneous rulings has a right to have his motion for a new trial considered upon its merits, without reference to the number of previous mistrials, or of retrials at the instance of the adverse party.

2. It is error to allow the manager of a street-railway company to give his opinion as to the competency of a motorman whose alleged negligence caused the injury complained of.

3. Such evidence is not rendered admissible on the theory that it was thereby intended to establish the competency of the motorman to testify as an expert, where the motorman had already testified, and the opinion evidence related to his competency on the day of the accident.

[48 S.W. 836]

4. Where it cannot be said that evidence erroneously admitted did not affect the verdict, it will not be considered harmless.

Appeal from circuit court, Gasconade county; Rudolph Hirzel, Judge.

Action by S. J. Langston against the Southern Electric Railroad Company for damages for personal injuries. From the judgment rendered, plaintiff appeals. Reversed.

This suit is for $10,000 damages on account of an injury alleged to have been sustained by plaintiff, while a passenger on one of defendant's cars, in consequence of the incompetency and negligence of the persons in charge of the same. The accident occurred on the 18th of September, 1892. The case has been tried four times. The jury failed to agree on two occasions, and upon the third the plaintiff obtained a verdict for $2,500. This was set aside by the learned judge who presided at the trial, as excessive. The last time the case was heard, $5 were awarded plaintiff, and from a judgment in his favor for that amount he has appealed to this court. A reversal is asked upon two grounds, namely, the admission of improper evidence upon defendant's part, and the inadequacy of the damages assessed. The substance of the petition is that plaintiff was a passenger on one of defendant's street cars; that as it approached the intersection of Sixth and Elm streets, going north, he arose from his seat, and gave a signal to the conductor to stop, which the conductor saw; that plaintiff prepared to get off as soon as the car should stop, but that it was not stopped on the north crossing, at the intersection of said streets; that when the car was at said crossing it was "suddenly jerked, pulled, or moved forward, by the carelessness, recklessness, incompetency, and negligence of the motorman, with such force and violence that plaintiff was knocked off and out of said car, so that he fell on the stone pavement of Sixth street," and was seriously and permanently injured. The answer contains a general denial, and likewise a plea of contributory negligence, upon which issue is joined by the replication. Plaintiff's testimony tends to prove these facts: He was a merchant residing in West Plains, and was temporarily in St. Louis on the 18th of September, 1892. He got on one of defendant's street cars, intending to ride to the end of the line. The conductor passed along and collected his fare. Plaintiff, as the car approached Elm street, thought he recognized an acquaintance on the sidewalk, and determined to get off to speak to him. He arose from his seat, and signaled the conductor to stop, which the latter saw. Plaintiff did not hear the bell, if it was rung in response to the signal from him. He says the conductor was looking directly at him when he indicated his desire and purpose to get off. There were two cars together. Plaintiff was on the second one, or trailer, which was an open, summer car. He moved to the side, so as to be ready to step down from the car as soon as it should stop. He was standing upright, and not holding to anything. The cars were going north, and did not stop on the north crossing at the intersection of Elm and Sixth streets, but, upon the contrary, they started forward more rapidly, with a sudden, quick jerk, which was very severe, and by reason thereof plaintiff was thrown out upon the granite rocks in the street. The cars were moving rapidly at the time the accident occurred, which was about 3 o'clock in the afternoon. Plaintiff's arm was broken, and he was otherwise bruised and injured. Two other witnesses corroborated his statement that the cars dashed or moved forward with a sudden jerk. No one saw him fall. He was found lying on the street, and was helped up, and then went to a neighboring drug store, and a physician was called, who advised him to go to the City Dispensary, where he could receive more satisfactory treatment, which he did. He was confined to his bed for a week, and had to carry his arm in a sling from the time of the injury until in the early part of December following. He testified that he suffered severe pain from the injury, and that at the time of the last trial, which was three years after he was hurt, he was unable to use his arm for any manual labor. He paid one physician for treating him $40, and another $40 or $42, and spent $5 or $10 for medicines. This is a sufficient outline of the case made by plaintiff for the purpose of disposing of this appeal. Further details would throw no light upon the questions of law which we are called upon to decide. The testimony introduced by the defendant put an...

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14 practice notes
  • Sharon v. K.C. Granite & Monument Co., No. 19233.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ...will value of the defendant company in 1930. Gash v. Mansfield, 28 S.W. (2d) 127 (Mo. App.); Langston v. Southern Electric Railway Co., 147 Mo. 457, 48 S.W. 835. (e) By permitting witness Kempster to testify as to his conclusions and findings after an examination of income tax returns conce......
  • State ex rel. Berberich v. Haid, No. 32393.
    • United States
    • Missouri Supreme Court
    • October 28, 1933
    ...(b) The introduction of improper evidence is presumed to be prejudicial. State ex rel. v. Ellison, 270 Mo. 645; Langston v. Railroad Co., 147 Mo. 457. (2) It is error to inject the issue of contributory negligence into the case in an instruction where it is not pleaded either in the petitio......
  • Dietz v. So. Pac. Ry. Co. et al., No. 20958.
    • United States
    • Court of Appeal of Missouri (US)
    • May 6, 1930
    ...v. Larsen, 236 P. 979. (7) The evidence of other claims being error, it is presumptively prejudicial to plaintiff. Langston v. R.R. Co., 147 Mo. 457. (8) Juries are prone to determine on their notions of what is fair, in view of all the facts before them, without strict regard to the legal ......
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...125 S.W. (2d) 897; Coale v. Hannibal & St. Joe R. Co., 60 Mo. 227; Perry v. Ford, 17 Mo. App. 212; Langston v. Southern Electric R. Co., 147 Mo. 457, 48 S.W. 835; Gunther v. Roy, 74 Mo. App. 597; Pryor v. Metropolitan Street Ry. Co., 85 Mo. App. 367. (5) The prejudicial effect of the testim......
  • Request a trial to view additional results
14 cases
  • Sharon v. K.C. Granite & Monument Co., No. 19233.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ...will value of the defendant company in 1930. Gash v. Mansfield, 28 S.W. (2d) 127 (Mo. App.); Langston v. Southern Electric Railway Co., 147 Mo. 457, 48 S.W. 835. (e) By permitting witness Kempster to testify as to his conclusions and findings after an examination of income tax returns conce......
  • State ex rel. Berberich v. Haid, No. 32393.
    • United States
    • Missouri Supreme Court
    • October 28, 1933
    ...(b) The introduction of improper evidence is presumed to be prejudicial. State ex rel. v. Ellison, 270 Mo. 645; Langston v. Railroad Co., 147 Mo. 457. (2) It is error to inject the issue of contributory negligence into the case in an instruction where it is not pleaded either in the petitio......
  • Dietz v. So. Pac. Ry. Co. et al., No. 20958.
    • United States
    • Court of Appeal of Missouri (US)
    • May 6, 1930
    ...v. Larsen, 236 P. 979. (7) The evidence of other claims being error, it is presumptively prejudicial to plaintiff. Langston v. R.R. Co., 147 Mo. 457. (8) Juries are prone to determine on their notions of what is fair, in view of all the facts before them, without strict regard to the legal ......
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...125 S.W. (2d) 897; Coale v. Hannibal & St. Joe R. Co., 60 Mo. 227; Perry v. Ford, 17 Mo. App. 212; Langston v. Southern Electric R. Co., 147 Mo. 457, 48 S.W. 835; Gunther v. Roy, 74 Mo. App. 597; Pryor v. Metropolitan Street Ry. Co., 85 Mo. App. 367. (5) The prejudicial effect of the testim......
  • Request a trial to view additional results

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