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

• Decision Date: 15 December 1908
• Parties: McKENZIE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

115 S.W. 13

216 Mo. 1

McKENZIE v. UNITED RYS. CO. OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

December 15, 1908.

Rehearing Denied January 4, 1909.

1. DEATH (§ 48) — ACTIONS FOR INJURIES — PLEADING.

A petition against a street railway, charging that plaintiff's husband on a date specified was driving a team attached to a wagon along a street on which defendant operated its cars; that defendant, while running a car at a high and unlawful speed, without giving any warning of the approach, or using any care to watch for vehicles, and without using any care to stop or control the movement of said car, suffered said car to collide with the wagon whereby plaintiff's husband was thrown from the wagon and so injured that he died; and charging defendant with negligence in failing to observe an ordinance of the city providing for a vigilant watch for all vehicles either upon defendant's track or moving toward it, and charging it with exceeding the speed allowed by another ordinance—states a cause of action within Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), giving a wife a right of action for the negligent killing of her husband by any officer, agent, servant, or employé while running or managing any car or train of cars.

2. DEATH (§ 14)—REGULATION AND OPERATION —STATUTORY REGULATIONS.

Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), giving a right of action for the death of any person resulting from or occasioned by the negligence or unskillfulness of any officer, agent, or servant, while managing any car or train of cars, against the corporation in whose employ such agent, officer, or servant shall be at the time such injury is committed, or that owns any such car at the time the injury is received, applies to street railways both before and after the passage of Act Feb. 11, 1905 (Laws 1905, p. 135; Ann. St. 1906, § 2864).

3. PLEADING (§ 63)—PETITION — STATEMENT OF STATUTORY CAUSE OF ACTION.

Where an action is brought under a public statute, it is unnecessary to refer to the section number of the statute in the petition.

4. PLEADING (§ 433)—AIDER BY VERDICT— ACTION AGAINST STREET RAILROAD COMPANY.

Under Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), giving a cause of action for the negligent killing of any person by the employés of a company managing a car or train of cars, and making the company liable to pay for every person so killed the sum of $5,000, a petition in an action for the death of a person so killed, which alleges that plaintiff's damages are $5,000, and that they result from the loss of the care, maintenance, and support of deceased, is not bad after verdict, where the facts alleged in the petition show that it was framed expressly upon this statute, and the verdict is for the amount given by that statute, the allegation as to care, maintenance, and support being surplusage which may be rejected after verdict.

5. APPEAL AND ERROR (§ 1068)—HARMLESS ERROR—INSTRUCTIONS—DAMAGES.

An instruction in an action brought under Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), giving a right of action for the negligent killing of any person by the servants of certain companies specified therein, and declaring that for each person whose death has been caused by the negligence of such servant the company shall pay $5,000, which tells the jury that they can assess plaintiff's damages at a sum not exceeding $5,000, is harmless where the verdict was for the amount specified in the statute.

6. APPEAL AND ERROR (§ 1052)—HARMLESS ERROR—ADMISSION OF EVIDENCE—DAMAGES.

In an action by a wife for the death of her husband, brought under Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), giving a right of action for the negligent killing of any person by the servants of companies specified therein, and providing that the sum of $5,000 may be recovered for each death so caused, the admission of evidence as to the value of the husband's services and the number of minor children left surviving is harmless error, where the amount of the verdict was not increased beyond the amount that plaintiff was entitled to recover under the statute.

7. PLEADING (§ 376)—PROOF—MATTERS TO BE PROVED.

It is unnecessary to show by testimony that which is admitted by the pleadings.

8. STREET RAILROADS (§ 83)— REGULATION AND OPERATION — RIGHT OF WAY OVER TRACKS.

A person who drives upon a street railroad track does not thereby become a trespasser.

9. STREET RAILROADS (§ 114)—REGULATION AND OPERATION—ACTIONS FOR INJURIES— SUFFICIENCY OF EVIDENCE.

Evidence, in an action to recover for the death of a person caused by a collision between a street car and a wagon in which deceased was riding, held to show that the wagon was on the street car track a sufficient length of time to have required the motorman to have seen it and taken steps to avoid striking it, and that decedent's death was caused by the negligence of defendant's servants.

10. STREET RAILROADS (§ 112) — PRESUMPTIONS— AVOIDANCE OF DANGER.

The law presumes, in the absence of any evidence to the contrary, that a person in driving onto a street car track looks to see if there is any car coming that might threaten his safety, and that he is observing ordinary care for his own safety.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by Sarah McKenzie against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest and T. E. Francis, for appellant. A. R. Taylor and Howard Taylor, for respondent.

GANTT, J.

This action was brought by the plaintiff to recover statutory damages sustained by her by reason of the killing of her husband through the negligence of the employés of the defendant while running its car on Broadway, a public street of the city of St. Louis on the evening of February 11, 1905, while her husband was driving a team and loaded wagon south on Broadway in the city of St. Louis, and about No. 5200 South Broadway, in said city. The petition alleges that plaintiff was the wife of John McKenzie at the time of his death. That the defendant is and was at the times alleged a corporation by virtue of the laws of Missouri, and used and operated a railway and car mentioned for the purpose of transporting persons from one point to another in the city of St. Louis as a street railway company. That at said times Broadway, at the places herein mentioned, was an open public street within the city of St. Louis. That on the 11th day of February, 1905, the plaintiff's said husband was driving a team attached to a wagon southward on Broadway near house No. 5200 South Broadway, when defendant's servants in charge of its south-bound car on Broadway negligently, and whilst running said car at a high, negligent, and unlawful speed, and without giving any warning by bell or otherwise of the approach of said car, and without using any care to watch out for vehicles on or approaching said track and in danger of being hit by said car, and without using any care to stop or control the movement of said car and prevent it from colliding with said wagon and injuring plaintiff's husband, caused and suffered said car to collide with said wagon so driven by plaintiff's husband, whereby he was thrown from said wagon and so injured that he died from said injuries on the 14th day of February, 1905. And for a further assignment of negligence the plaintiff avers that at the time of said injuries to her husband there was in force within the city of St. Louis an ordinance of said city by which it was provided that motormen of street cars should keep a vigilant watch for all vehicles either upon the defendant's track or moving towards it, and upon the first appearance of danger to said vehicle the car should be stopped within the shortest time and space possible; yet the plaintiff avers that, at the time of said injury to her husband, defendant's motorman in charge of said car was failing to keep such vigilant watch, and failed to stop said car within the shortest time and space possible with the means and appliances at hand, which violation of said ordinance directly contributed to cause said injuries and death of the plaintiff's husband. And, for another and further assignment of negligence, the plaintiff avers that at the time of said injuries there was in force in said city of St. Louis an ordinance of said city, by which it was provided that defendant should not run its cars at the place aforesaid at a speed in excess of 15 miles an hour, nor at a speed dangerous to persons on the street; yet the plaintiff states that, at the time of said injuries to her husband, defendant's servants in charge of said car, in violation of said ordinance, were running said car in excess of 15 miles an hour, and at speed dangerous to persons on said street and to plaintiff's husband, which violation of said ordinance directly contributed to cause the injury and death of plaintiff's husband. Said ordinance being sections 1760 and 1760a of Ordinance 21,113 of the Ordinances of the City of St. Louis. That by the death of her husband, as aforesaid, the plaintiff has lost his care, maintenance, and support, to her damage in the sum of $5,000, for which sum she prays judgment.

The answer for the defendant was as follows: "Now, this day comes the defendant, and by leave of court first had and obtained, for answer to plaintiff's petition filed herein, denies each and every allegation therein contained. For another answer and defense to plaintiff's petition, defendant says that plaintiff's husband lost his life because of his own carelessness and negligence in driving on and along a car track with a wagon containing dynamite without looking or listening for approaching cars, when by so looking and listening the deceased might have seen or heard said approaching car in time to have avoided the collision. Further answering, defendant says that plaintiff's husband was killed because of his own carelessness and negligence in driving on...