Lyons v. Metropolitan Street Railway Company

• Decision Date: 06 December 1913
• Parties: CLAUDE H. LYONS v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

161 S.W. 726

253 Mo. 143

CLAUDE H. LYONS v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

December 6, 1913

Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.

Affirmed (as modified).

John H Lucas and Charles N. Sadler for appellant.

(1) The court erred in overruling the demurrer interposed at the close of plaintiff's evidence and renewed at the close of the case on the ground that under the pleadings and the evidence there could be no recovery. (a) The evidence does not support the allegations of the petition. Plaintiff must plead and prove every fact necessary in order to entitle him to recover. R.S. 1909, sec. 1794. A general denial puts in issue every allegation in the petition. R.S. 1909, sec. 1806. In actions for personal injuries, the law of the state, where accident occurs, governs. Newlin v. Railroad, 222 Mo. 391; Chandler v. Railroad, 127 Mo.App. 34; Rahn v. Railroad, 129 Mo.App. 686. Common law not presumed to exist in Kansas. Mathieson v. Railroad, 219 Mo. 542. (b) Under the laws of Kansas, the demurrer should have been sustained, on account of plaintiff's negligence. Mason v. Railroad, 27 Kan. 83; Railroad v. Schmidt, 67 Kan. 8; Zirkle v Railroad, 67 Kan. 77; Railroad v. Withers, 69 Kan. 620; Railroad v. Holland, 60 Kan. 209; Lamb v. Railroad, 73 Kan. 220; Bressler v. Railroad, 86 P. 472; Burgess v. Railroad, 83 Kan. 497; Railroad v. Clinkenbeard, 72 Kan. 559; Dyerson v. Railroad, 74 Kan. 528; Libby v. Railroad, 77 P. 541; Campbell v. Railroad, 55 Kan. 536. (c) There was no evidence to justify a submission of the case to the jury, under the laws of Missouri, upon the humanitarian doctrine. McGanley v. Transit Co., 179 Mo. 583; Theobald v. Railroad, 191 Mo. 395; Riggs v Railroad, 216 Mo. 304; Senn v. Railroad, 108 Mo. 151; Veatch v. Railroad, 129 S.W. 406; Markowitz v. Railroad, 186 Mo. 350; Grout v. Railroad, 125 Mo.App. 552; Mockowik v. Railroad, 196 Mo. 550; Graefe v. Transit Co., 224 Mo. 262; Warner v. Railroad, 178 Mo. 134; Boring v. Railroad, 194 Mo. 544; Dey v. Railroad, 140 Mo.App. 468; Hawkins v. Railroad, 135 Mo.App. 535; Cole v. Railroad, 121 Mo.App. 613; Ross v. Railroad, 125 Mo.App. 617; Bennett v. Railroad, 122 Mo.App. 710; Barnard v. Railroad, 137 Mo.App. 684; Cohn v. City, 108 Mo. 393; Roberts v. Tel. Co., 166 Mo. 371; Roenfeld v. Railroad, 180 Mo. 565; Gourley v. Railroad, 35 Mo.App. 92; Heinzle v. Railroad, 182 Mo. 554. (d) The plaintiff was guilty of contributory negligence. Rose v. Railroad, 113 Mo.App. 605; Boyd v. Railroad, 105 Mo. 371; Kinlen v. Railroad, 216 Mo. 164. Cases under (c), supra. (2) The court erred in giving instructions on behalf of plaintiff. Frank v. Railroad, 57 Mo.App. 186; Boyce v. Railroad, 120 Mo.App. 168; Davidson v. Transit Co., 211 Mo. 320; Ingles v. Railroad, 145 Mo.App. 241; Mammerberg v. Railroad, 62 Mo.App. 363; Detrich v. Railroad, 143 Mo.App. 180; Conway v. Railway, 143 S.W. 516; Rush v. Railroad, 157 Mo. 504; Smart v. Kansas City, 91 Mo.App. 586; Young v. Railroad, 113 Mo.App. 636. (3) The court erred in refusing to give instructions asked by defendant. Cases supra. (4) The jury disregarded the instructions of the court and the evidence in the case. Allen v. Transit Co., 183 Mo. 432; Boyd v. Transit Co., 103 Mo.App. 303; Fleischman v. Miller, 38 Mo.App. 177; Gessley v. Railroad, 26 Mo.App. 156. (5) The court erred in admitting incompetent, irrelevant and immaterial evidence on behalf of plaintiff. Taylor v. Railroad, 150 Mo. 51; Glassgow v. Railroad, 191 Mo. 358; Taylor v. Railroad, 185 Mo. 255; Smart v. Kansas City, 91 Mo.App. 586; Young v. Railroad, 113 Mo.App. 636; Browning v. Railroad, 106 Mo.App. 729. (6) The verdict is excessive. Stoetzelle v. Swearingen, 90 Mo.App. 693; Taylor v. Railroad, 185 Mo. 239; Haynes v. Trenton, 108 Mo. 123; Newcomb v. Railroad, 182 Mo. 687; Stolze v. Transit Co., 188 Mo. 581; Bragg v. Railroad, 192 Mo. 331; Waddell v. Railroad, 213 Mo. 8; Briscoe v. Railroad, 222 Mo. 104; Wellman v. Railroad, 219 Mo. 126. (7) The court erred in refusing to consider affidavits of newly discovered evidence. State v. Murray, 91 Mo. 103; State v. Bailey, 94 Mo. 315; Folding Bed Co. v. Railroad, 148 Mo. 478. (8) The court erred in refusing to sustain the motion for new trial herein. Lehnick v. Railroad, 118 Mo.App. 616; Spohn v. Railroad, 87 Mo. 84; Price v. Evans, 49 Mo. 336; Fugler v. Bothe, 117 Mo. 502. (9) The court erred in refusing to sustain the motion in arrest of judgment. Cases under point 1.

John T. Barker and Sparrow, Page & Rea for respondent.

(1) The court did not err in refusing defendant's demurrer. Plaintiff made a strong case and is entitled to recover. Ellis v. Railroad, 234 Mo. 657; Moon v. Transit Co., 237 Mo. 425; Childress v. Railroad, 141 Mo.App. 667; Holden v. Railroad, 177 Mo. 469; Eckhard v. Transit Co., 190 Mo. 618; Cytron v. Transit Co., 205 Mo. 720. (2) Plaintiff did not plead nor prove the law of Kansas, neither did defendant; therefore the case was properly tried under the laws of Missouri. Coleman v. Locksinger, 224 Mo. 14; McDonald v. Ins. Co., 154 Mo. 618; Biggie v. Railroad, 140 S.W. 602; Bank v. Com. Co., 139 Mo. 124; Atwater v. Brokerage Co., 147 Mo.App. 447; Gimochio v. Railroad, 155 Mo.App. 168; McManus v. Railroad, 118 Mo.App. 566; Kollock v. Emmert, 43 Mo.App. 566; 16 Cyc. 1084; Telegraph Co. v. Crawford, 35 L.R.A.(N.S.) 930; Parrott v. Railroad, 34 L.R.A.(N.S.) 261. (3) It was not error to permit nonexperts to testify as to the speed of trains. Moon v. Transit Co., 237 Mo. 425; Ellis v. Railroad, 234 Mo. 684; Lynch v. Railroad, 208 Mo. 1; Stotter v. Railroad, 200 Mo. 128. (4) The affidavits for new trial were properly stricken out and their contents were not set out in the motion for new trial and they were filed more than four days after verdict and at a different term of court. Winn v. Grier, 217 Mo. 420; Carlton v. Munroe, 135 Mo.App. 172; Bunton v. Thomas, 134 Mo.App. 64; Obert v. Strube, 51 Mo.App. 621; Hesse v. Seyp, 88 Mo. 66; State v. Bowman, 161 Mo. 88; State v. McCullough, 171 Mo. 571; State v. Williams, 199 Mo. 137; State v. Nagle, 136 Mo. 50; King v. Gibson, 206 Mo. 264. (5) Plaintiff's injuries are permanent and he will be helpless the rest of his life; the verdict is not excessive. Corby v. Telephone Co., 231 Mo. 417; Gordon v. Railroad, 222 Mo. 516; Clark v. Railroad, 234 Mo. 396; Scullen v. Railroad, 184 Mo. 695; Markey v. Railroad, 185 Mo. 348; Copeland v. Railroad, 175 Mo. 650; Fullerton v. Fordyce, 144 Mo. 519; The Fullerton, 167 F. 1; Tel. Co. v. Engler, 75 F. 102; Morgan v. Railroad, 95 Cal. 501; Holland v. Railroad, 18 Ill.App. 418; Shaw v. Railroad, 74 Mass. 45; Howe v. Railroad, 62 Minn. 71; Schultz v. Railroad, 46 N.Y.S. Ct. 211; Wallace v. Oil Co., 12 N.Y.S. 425; Tuthill v. Railroad, 30 N.Y.S. 959; Dorsey v. Railroad, 66 Tex. 148; Hohn v. Railroad, 1 Tex. Civ. App. 36; Grover v. Rochester, 39 Hun, 5; Fisher v. Railroad, 38 Ill.App. 33; Bishop v. Railroad, 48 Minn. 26; Harrold v. Railroad, 24 Hun, 184; Dooley v. Railroad, 86 Ga. 294; Leseth v. Chicago, 43 Ill. 480; Collins v. Council Bluffs, 32 Iowa 334; Alberti v. Railroad, 43 Hun, 421; Thompson v. Railroad, 64 Miss. 584; Porfert v. Railroad, 72 Tex. 344; Wilcox v. Railroad, 33 Ill.App. 450; Ehrman v. Railroad, 14 N.Y.S. 336; Roth v. Depot Co., 13 Wash. 525; Murray v. Railroad, 7 N.Y.S. 900; Erickson v. Railroad, 32 N.Y.S. 915; Woodbury v. District of Columbia, 5 Mackey, 127; Hall v. Railroad, 46 Minn. 439; Solen v. Railroad, 13 Nev. 106; Walker v. Railroad, 63 Barb. 260; Schneider v. Railroad, 15 N.Y.S. 556; Solarz v. Railroad, 29 N.Y.S. 1123; Ewing v. Railroad, 7 Tex. Civ. App. 8; Sears v. Railroad, 6 Wash. 227; Smith v. Whittier, 95 Cal. 279; Woods v. Trinity Parish, 21 D. C. 540; Friedman v. Railroad, 41 Ill.App. 270; Brazill v. Railroad, 78 Tex. 314. (6) Plaintiff's instructions properly declare the law and are more than fair to defendant and if defendant's instructions are in conflict defendant cannot complain. Moore v. Transit Co., 193 Mo. 411; Heagy v. Lead Co., 101 Mo.App. 361; Hunt v. Lead Co., 104 Mo.App. 377; Weston v. Mining Co., 105 Mo.App. 702; Crawford v. Dappler, 120 Mo. 362; Anderson v. Terminal Co., 161 Mo. 411; Ellis v. Railroad, 234 Mo. 679; Berry v. Railroad, 214 Mo. 604. (7) Plaintiff's instructions are practically copied word for word from the following cases approved by this court: Ellis v. Railroad, 234 Mo. 657; Cytron v. Transit Co., 205 Mo. 720; Moon v. Transit Co., 237 Mo. 425; Eckhard v. Transit Co., 190 Mo. 281; Eppstein v. Railroad, 197 Mo. 736. (8) The verdict was for the right party and should be affirmed. Where apparent justice has been done appellate courts will not interfere. Sec. 2082, R.S. 1909; Freeland v. Williamson, 220 Mo. 217; Stumpe v. Kopp, 201 Mo. 412; Mann v. Doer, 222 Mo. 54; Logan v. Field, 192 Mo. 54; O'Keefe v. Railroad, 124 Mo.App. 613; Cross v. Gould, 131 Mo.App. 585.

BLAIR, C. Brown, C., concurs. Bond, J., dissents from this disposition of the case.

OPINION

BLAIR, C.

This is an action for damages for injuries plaintiff alleges he received when one of defendant's cars collided, at the crossing of Fifth street and Haskell avenue, Kansas City Kansas, with a buggy in which plaintiff and his brother-in-law were riding. The negligence charged in the petition is (1) negligent, careless and reckless speed; (2) a negligent, careless and reckless failure to give warning of the car's approach to the crossing; and (3) that defendant's servants in charge of the car did not employ proper care to either slacken speed or stop the car after they saw, or by the exercise of reasonable care could have seen, plaintiff on said crossing. Then follow allegations as to the injuries suffered. The answer was a general denial. There was a judgment for plaintiff...