Murray v. Wells

• Citation: 17 S.W.2d 613
• Decision Date: 04 June 1929
• Docket Number: No. 20651.,20651.
• Parties: MURRAY v. WELLS.
• Court: Court of Appeal of Missouri (US)

17 S.W.2d 613

MURRAY v. WELLS.

No. 20651.

St. Louis Court of Appeals. Missouri.

June 4, 1929.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Sarah Murray, a minor, by Michael J. Murray, her next friend, against Rolla Wells, as receiver of the United Railways Company of St. Louis, and another. From a judgment for plaintiff, defendant named appeals. Affirmed.

T. E. Francis and Vance J. Higgs, both of St. Louis, for appellant.

Louis Martin Wolf and Arnot L. Sheppard, both of St. Louis, for respondent.

NIPPER, J.

Plaintiff, Sarah Murray, by her next friend, brought suit to recover damages for personal injuries alleged to have been sustained by her as the result of a collision between a street car operated by the agents and servants of the defendant Rolla Wells, and a taxicab operated by the Brown Cab Company. The suit was brought against both the defendants. Plaintiff recovered judgment for $900, and the defendant Rolla Wells has appealed.

The petition, so far as the defendant Wells is concerned, alleges negligence in three respects: First, violation of a certain ordinance of the city of St. Louis which required defendant Wells' agents and servants to keep a vigilant watch for persons and vehicles on or approaching the tracks, and upon the first appearance of danger to such persons or vehicles to stop the car in the shortest time and space possible; second, the violation of a certain ordinance requiring every person operating or driving a street car to operate and drive the same in a careful and prudent manner, and at a rate of speed so as not to endanger the life or limb of any person; also, negligence under the humanitarian doctrine.

The injuries were received as the result of a collision between a street car and a taxicab. Plaintiff was a passenger in the taxicab at the time she was injured. Plaintiff asked and was given no instructions in the case except on the measure of damages. There were a number of instructions given at the request of the defendants. Neither of the ordinances referred to in the petition were introduced in evidence. Appellant, Rolla Wells, assigns as error the action of the trial court in refusing to give requested instructions withdrawing these assignments of negligence from the consideration of the jury. These instructions are as follows:

"L. The Court instructed the jury that plaintiff cannot recover under and upon her assignment of negligence to the effect:

"That at said time the defendant, Rolla Wells, as such Receiver, by and through his said agent and servant, negligently failed to keep vigilant or any watch ahead or laterally ahead of said street car; and negligently failed to stop said car in the shortest time and space possible or at all, after said agent and servant saw, or by the exercise of reasonable and lawful care could have seen said cab on or approaching said track with plaintiff therein, and in danger from said street car. And such assignment of negligence is hereby withdrawn from the consideration of the jury.

"M. The Court instructs the jury that plaintiff cannot recover under and upon her assignment of negligence to the effect:

"That at said time defendant, Rolla Wells, as such Receiver, by and through his said agent and servant, operating and driving said street car, negligently failed to drive same in a careful and prudent manner and at a rate of speed so as not to endanger the life or limb of any person, including plaintiff, in this, to wit: That at said time said agent and servant negligently drove said street car at a high, dangerous and negligent rate of speed; and negligently failed to keep watch ahead or laterally...