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

• Decision Date: 24 March 1914
• Citation: 256 Mo. 165,165 S.W. 304
• Parties: MOORE v. UNITED RYS. CO. OF ST. LOUIS et al.
• Court: Missouri Supreme Court

165 S.W. 304

256 Mo. 165

MOORE v. UNITED RYS. CO. OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 2.

March 24, 1914.

COURTS (§ 231) — MISSOURI — JURISDICTION OF SUPREME COURT.

An objection to the constitutionality of a statute, made below, but not relied upon on appeal, will not give the Supreme Court jurisdiction, where the amount in controversy is within the jurisdictional limits of the Court of Appeals.

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

Action by James Moore against the United Railways Company of St. Louis and another. From a judgment for plaintiff, defendants appeal. Transferred to the St. Louis Court of Appeals.

Boyle & Priest, T. E. Francis, Chauncey H. Clarke, and W. Blodgett Priest, all of St. Louis, for appellants. Nathan Frank and Richard A. Jones, both of St. Louis, for respondent.

WILLIAMS, C.

This is a suit to recover damages for the death of plaintiff's wife, alleged to have been caused by the defendants in negligently and carelessly operating a street car in the city of St. Louis in such a manner as to strike plaintiff's wife and cause her death. The petition was in two counts, one count upon common-law negligence and the other count upon violation of an ordinance of said city. The answer contained a general denial, and the further allegation that whatever injuries plaintiff's wife sustained were caused through her own carelessness and negligence. Trial was had in the circuit court of the city of St. Louis, resulting in a verdict and judgment for plaintiff in the sum of $5,000. Both defendants have appealed. The appeal was taken after the jurisdiction of the courts of appeal had been increased to $7,500. Upon an examination of the record, it is evident that the only point upon which the jurisdiction of this court is attempted to be based is the fact that one of defendants' refused instructions requested the court to instruct the jury to find for defendants on the ground that section 2865, Revised Statutes 1899 (now section 5426, R. S. 1909) is unconstitutional. Upon an examination of the appellants' brief, we find that the constitutional question is not mentioned therein, and is not relied upon or urged here as a ground for reversal.

In the case of Botts et al. v. Wabash Railroad Company and St. Louis & Hannibal Railroad Company, 248 Mo. 56, 154 S. W. 53, division 1 of this court, in discussing a similar situation, reached the conclusion that under such circumstances this court did not...