McGuire v. Springfield Traction Co.

• Decision Date: 25 August 1930
• Docket Number: No. 4804.,4804.
• Parties: McGUIRE v. SPRINGFIELD TRACTION CO.
• Court: Missouri Court of Appeals

30 S.W.2d 794

McGUIRE v. SPRINGFIELD TRACTION CO.

No. 4804.

Springfield Court of Appeals. Missouri.

August 25, 1930.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

"Not to be officially published."

Action by H. L. McGuire against the Springfield Traction Company. Judgment for plaintiff, and defendant appeals.

Reversed, and the cause remanded.

Frank B. Williams, A. P. Stone, Jr., and Haymes & Dickey, all of Springfield, for appellant.

Hamlin, Hamlin & Hamlin and C. W. Hamlin, all of Springfield, for respondent.

COX, P. J.

Action for damages for personal injury resulting from plaintiff being struck and injured by one of defendant's street cars on Grant street in the city of Springfield. Plaintiff recovered, and defendant appealed.

One point made by appellant is that the court should have directed a verdict for defendant upon the opening statement to the jury by counsel for plaintiff. Without reviewing all that counsel said, we note that he began by reading the petition to the jury and then said, "We think the evidence in this case will, in the main at least, substantiate the allegations in this petition." This was followed by a detailed statement of what he expected the evidence would show. A party litigant is bound by statements of facts made in open court by his counsel when he states them as facts. Pratt v. Conway, 148 Mo. 291, loc. cit. 299, 49 S. W. 1028, 1030, 71 Am. St. Rep. 602. But we do not understand that a statement of counsel detailing what he believes or expects the evidence will show has any binding force at all.

At the close of plaintiff's case, the defendant asked a peremptory instruction directing the jury to find for defendant. This was refused. Defendant offered no testimony, and the case was then submitted to the jury upon plaintiff's testimony alone. It is insisted by appellant that plaintiff did not make a case and the peremptory instruction should have been given. The recovery was under the humanitarian rule. It is practically conceded that the respondent was negligent in stepping upon the street car track in front of the street car without looking to see whether or not a car was approaching upon the track. Plaintiff's evidence as to the facts at and preceding the injury was given by plaintiff himself and is substantially as follows: Grant street is a public street in the city of Springfield running north and south. It is about fifty feet wide between the curbs, and a street car track is laid in about the center of the street. It was a clear day, and plaintiff could have seen the street car when it was two hundred feet away if he had looked, but he did not think of the street car and did not look for it. Plaintiff lived on the west side of the street and had gone across to the east side of the street to the house of a neighbor to get a piece of molding to be used in putting a window in his kitchen. After securing the molding, he passed into a driveway that led to the street and started toward the street. A truck on which a long pole was loaded had stopped on that side of the street in such a position that the rear end of the pole projected part way across the driveway, which made it necessary for plaintiff to step around the end of the pole in order to cross the street. Plaintiff in his direct examination said: "When I came out to the street with my moulding I walked to the edge of the curbing and stopped on account of the truck being there. * * * The truckman was working his arms like he was going to back and I didn't want to get hit by him backing on me so I hesitated there for quite a little bit. I stepped down on the street and I stopped again. By that time I had made up my mind he was going to back and I stood there quite a bit to find out for sure whether he was going to move or not and I finally concluded that he was not going to move and I stepped then just a step and started and just as I started the street car hit me and knocked me about eight or ten feet north and I fell between the tracks and the car was coming on and I throwed my legs between the tracks and rails to keep it from cutting my legs off and the car came on up over me and stopped. My head was about under the axle when the car stopped. I crawled out from under the car there and by that time, by the time I could crawl out, the motorman came and took hold of me and asked me if I was hurt and I could not answer him just then for a second or so and I says `Why didn't you ring the bell?' (This last statement was objected to and the objection overruled.) He never answered me; never made no reply. He then described his injuries. On cross-examination he said he probably had to step one step...