McFern v. Gardner
| Decision Date | 27 November 1906 |
| Parties | McFERN, Respondent, v. GARDNER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor Judge.
AFFIRMED.
Judgment affirmed.
John A Talty for appellant.
(1) The court erred in refusing the instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff's evidence in chief, and also at the close of all the evidence. (a) There was no evidence of any negligence on the part of the defendant. Hyde v. Railroad, 110 Mo. 280; Knapp v. Hanley, 108 Mo.App. 360. (b) Said instruction should have been given because the evidence shows clearly and conclusively that the deceased was guilty of negligence that directly contributed to the accident. Chaney v. Railroad, 176 Mo. 606; Buesching v Gas Light Co., 73 Mo. 229; Hudson v. Railroad, 101 Mo. 34. And it would be no answer to this to say that Kelly's testimony shows that the defendant was guilty of negligence. Shearman and Redfield, Negligence, secs. 25, 26, 96; Barrie v. Transit Co., 102 Mo.App. 92. The use of streets must be, and have been, extended to meet the modern means of locomotion. Automobiles have an equal right with other vehicles in common use, to occupy and use the public streets and highways. Upton v. Windham, 75 Conn. 293; Chicago v. Banker, 112 Ill.App. 99. (2) The court erred in excluding the testimony of Michael Mullen, offered by the defendant. The defendant by this witness desired and offered to show what business the deceased was engaged in and what manner of man he was by the statements and declarations of the deceased himself to the witness. Proctor v. Railway, 64 Mo. 120; White v. Maxey, 64 Mo. 558. "It transmits to designated persons a cause of action that the injured party would have had, had death not ensued." Gray v. MacDonald, 104 Mo. 311; Strode v. Transit Co., 95 S.W. 851. (3) The judgment should be reversed on grounds 1, 2, 3 and 4 of plaintiff's motion for a new trial. The court prejudged defendant's case and interests by, among other things, compelling him to go to trial in the absence of, and while, his sole attorney in the case was engaged in the actual trial of a case in another division of the court, by accusing his attorney in the presence and hearing of the jury of bad faith and of having made misstatements to the court, and by telling defendant to employ another lawyer. Williams v. West Bay City, 119 Mich. 395, 22 Am. St. Rep. 673; Reilly v. Railroad, 90 Ill.App. 364.
Joseph A. Wright for respondent.
(1) Upon testimony introduced, coupled with the physical facts, plaintiff's case was properly submitted to the jury. Luckel v. Building Co., 177 Mo. 608; Campbell v. Railroad, 175 Mo. 161; Erickson v. Railroad, 171 Mo. 647; Payne v. Railroad, 136 Mo. 562; Spiro v. Transit Co., 102 Mo.App. 250. (2) The humanitarian or last chance doctrine is now firmly established in our jurisprudence. Rapp v. Transit Co., 190 Mo. 161; Scullin v. Railroad, 184 Mo. 707; Klockenbrink v. Railroad, 172 Mo. 688; Hilz v. Railroad, 101 Mo. 36, 54; Hyman v. Transit Co., 108 Mo.App. 460; Biscuit Co. v. Transit Co., 108 Mo.App. 303; Kolb v. Transit Co., 102 Mo.App. 143; Grocer Co. v. Railroad, 89 Mo.App. 402. (3) The operation of an automobile is attended with such unusual and increased perils to others upon the streets or highways, as to render the humanitarian doctrine very justly applicable in the following leading automobile negligence cases: Christy v. Elliott, 216 Ill. 45, 1 L. R. A. (N. S.) 215; Indiana Springs Co. v. Brown (Ind. Sup.), 74 N.E. 615, 1 L. R. A. (N. S.) 238; McCullough v. Shinkle, 116 Ky. 960; Hannigan v. Wright (Del.), 63 A. 234; Wright v. Crane (Mich.), 106 N.W. 71; Hennessey v. Taylor, 189 Mass. 583; Kathemeyer v. Kehler (N. J. L.), 60 A. 40; Ex Parte Berry (Cal.), 82 P. 44; Buscher v. Transportation Co. (N. Y.), 106 A.D. 493; Murphy v. Wait (N. Y.), 102 A.D. 121. (4) An alleged statement made to witness Michael Mullen, by deceased long prior to accident is inadmissible, for it had no possible bearing on the cause of death and therefore constituted no part of the res gestae. In any event, the bill of exceptions is silent regarding what defendant intended to prove, and the court's action in refusing testimony offered can only be reviewed on appeal when the bill of exceptions shows what the appellant expected to prove. Summers v. Ins. Co., 90 Mo.App. 691; McCormick v. St. Louis, 166 Mo. 315; State v. Martin, 124 Mo. 515; Hickman v. Green, 123 Mo. 165; State v. Nocton, 121 Mo. 537; Berthold v. O'Hara, 121 Mo. 89; Fitzgerald v. Barker, 96 Mo. 661; Kraxberger v. Roiter, 91 Mo. 404; Jackson v. Hardin, 83 Mo. 175; State ex rel. v. Leland, 82 Mo. 260; Bank v. Aull, 80 Mo. 199. (5) The mode and manner of impanelling the jury was just and proper. Defendant cannot remain silent until after verdict; if he wished to avail himself of these alleged errors, he should have challenged in writing the array of jurors, before jury had been sworn, and saved his exceptions, in the event challenge had been overruled. State v. Brennan, 164 Mo. 487; State v. Taylor, 134 Mo. 109; State v. Clark, 121 Mo. 500; Tarkio v. Cook, 120 Mo. 11; State v. Sansome, 116 Mo. 1; State v. Smith, 114 Mo. 406; State v. Brewer, 109 Mo. 648.
--On November 11, 1904, at 6:30 p. m., Alfred L. McFern, plaintiff's deceased husband, and Commodore Kelly were driving a light, low, one-horse buggy (a runabout) on Forest Park roadway. The buggy collided with defendant's automobile a little north of the intersection of the roadway with Forest Park boulevard. The buggy was traveling north and the automobile south. The shock of the collision threw both McFern and Kelly into the street, causing injuries to McFern from which he died a few hours thereafter. The petition alleges the collision, resulting in the death of plaintiff's husband, was caused by the negligence of defendant. The answer was a general denial and an affirmative plea of contributory negligence. Verdict and judgment for plaintiff for three thousand dollars. Defendant appealed.
Defendant moved the court to peremptorily instruct the jury that plaintiff could not recover, and assigns as error the refusal of the court to so instruct.
1. Every litigant has a right under the Constitution, when he has offered substantial evidence tending to prove his case to have it submitted to the jury; and for the purpose of determining whether or no there is substantial evidence to submit to the jury, the testimony of plaintiff as offered should be accepted as true and every reasonable inference in his favor should be drawn therefrom. [Ladd v. Williams, 104 Mo.App. 390, 79 S.W. 511, and cases cited.] It was not enough to show an accident and injury. A causal connection must be established between the accident and the negligence charged in order to make out a case for the jury. [Warner v. Railway, 178 Mo. 125, 77 S.W. 67; Conner v. Railroad, 181 Mo. 397, 81 S.W. 145.] A correct application of these well-settled principles of law to the facts in the case in hand requires a somewhat detailed statement of plaintiff's evidence and of some of the physical facts bearing upon this evidence.
Kelly testified McFern was seated on his left but had the lines in his hands and was doing the driving, when the accident happened; that they were traveling north on the east side of Forest Park roadway at a speed of about eight miles an hour; that when they were near, but a little north of the intersection of Forest Park roadway with Forest Park boulevard, he saw an automobile, fifty or sixty feet away, coming south on the east side of the road, at a speed of from twenty to twenty-five miles an hour; that there were no lights on the buggy or automobile, and the night was foggy and "awful dark." We quote the following from Kelly's testimony:
To continue reading
Request your trial