McQuade v. St. Louis & Suburban Ry. Co.

• Decision Date: 21 November 1906
• Citation: 98 S.W. 552,200 Mo. 150
• Court: Missouri Supreme Court
• Parties: McQUADE v. ST. LOUIS & SUBURBAN RY. CO. et al.

98 S.W. 552

200 Mo. 150

McQUADE v. ST. LOUIS & SUBURBAN RY. CO. et al.

Supreme Court of Missouri, Division No. 1.

November 21, 1906.

1. STREET RAILROADS — INJURIES TO PEDESTRIAN — ACTION — PLEADING — REPUGNANT ALLEGATIONS.

In an action against a street railway company for injuries to a pedestrian at a crossing, a petition alleging in one count that the motorman failed to keep a vigilant watch, etc., and also that he failed to stop the car in the shortest time and space possible, was not objectionable as alleging repugnant grounds of negligence.

2. PLEADING — PETITION — REVIEW — ALLEGATIONS — REMEDIES.

Where a petition is defective as alleging repugnant grounds of negligence in the same count the defect can only be reached by demurrer or motion to elect, and not by a demurrer to the evidence.

3. DEATH — ACTIONS — STREET RAILROADS — NEGLIGENCE OF EMPLOYÉS — STATUTES — APPLICATION.

Rev. St. 1899, § 2864, providing that, whenever any person shall die from an injury resulting from, or occasioned by, the negligence of any servant or employé while running any car, the corporation in whose employ such servant or employé shall be at the time the injury is committed shall forfeit and pay for every person so dying the sum of $5,000, is applicable to street railways.

4. SAME—MUNICIPAL ORDINANCES.

Rev. St. 1899, § 2864, creates an action for death resulting from, or occasioned by, the negligence of any servant or employé while running any car, etc. Held, that the right of action so given included death from negligence generally, whether consisting of negligence as defined by the common law, or arising from a failure to discharge a duty imposed by statute or municipal ordinance.

5. STREET RAILROADS—DEATH OF PEDESTRIAN —VIGILANT WATCH.

Where, in an action for death of a pedestrian at a street railroad crossing, there was evidence that, by the exercise of ordinary care, the motorman could have seen deceased on the track in time to have saved his life by the exercise of ordinary care thereafter, plaintiff was entitled to recover, though there was no evidence that, after the motorman in fact saw the deceased, he could have prevented a collision.

6. SAME—CONTRIBUTORY NEGLIGENCE—PETITION —CONSTRUCTION.

Where a petition, for death of a pedestrian in a collision with a street car, charged certain acts of negligence, and then alleged violations of a city ordinance, "which violations of such ordinance directly contributed to cause the death and injury of plaintiff's husband," the petition should be construed to mean that the violation of the ordinance contributed with the other precedent acts of negligence charged in the petition to cause such injury and death, and not that they contributed with deceased's negligence to cause such injury.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Mary McQuade against the St. Louis & Suburban Railway Company and another. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded.

A. R. Taylor and Howard Taylor, for appellant. Jefferson Chandler and T. M. Pierce, for respondents.

BRACE, P. J.

This is an action by the widow to recover $5,000 damages for the death of her husband, Michael McQuade, under the provisions of section 2864, Rev. St. 1899, in which, at the close of the plaintiff's evidence, a demurrer thereto was sustained, the plaintiff took a nonsuit, and, from the refusal of the court to set the same aside, she appeals.

The petition is as follows: "The plaintiff states that she was the lawful wife of Michael McQuade at the time of his death as herein stated; that the defendants are each, and at the times herein stated were each, corporations by virtue of the law of Missouri, and used and operated the railway and car herein mentioned for the purpose of transporting persons for hire from one point to another in the city of St. Louis as a public conveyance in charge of their motorman and conductor; that at said times Wash street and Twenty-Third street, at the places herein stated, were open public streets within the city of St. Louis; that on the 9th day of May, 1901, the plaintiff's husband, Michael McQuade, was lawfully on the crossing of Wash and Twenty-Third streets, at or near the east crossing thereof, when defendant's servants in charge of their west-bound car carelessly and negligently, and without using any care to give warning of the approach of said car to said crossing or to said Michael McQuade, and without using any care to watch out for persons on said crossing, and without using any care to slow up or stop said car and avert injury to said McQuade, did cause and suffer said car to strike and so injure said McQuade that he died from said injuries at St. Louis on the day aforesaid. And for another and further assignment of negligence the plaintiff avers that at the time of the death of her husband there was in force within the city of St. Louis an ordinance of said city by which it was provided that motormen and conductors of each car should keep a vigilant watch for persons on foot, either on the track or moving twards it, and upon first appearance of danger to such person the car should be stopped within the shortest time and space possible, and the plaintiff avers that at and before the time that said car struck and injured her husband the motorman and conductor of said car were failing to keep such vigilant watch, and failed to stop said car on the first appearance of danger to her husband as he moved towards said track and was upon said track, which violation of said ordinance directly contributed to cause the injury and death of plaintiff's husband; that by the death of her husband caused as aforesaid an action has accrued to the plaintiff to sue for and recover the sum of $5,000 according to the statute of Missouri. And the plaintiff avers that within six months after the death of her husband she instituted an action against the St. Louis & Suburban Railway Company, one of the defendants herein, to recover said statutory damages for the death of her said husband, and thus appropriated said cause of...