Nahorski v. St. Louis Electric Terminal Ry. Co.

• Decision Date: 01 July 1925
• Docket Number: No. 24640.,24640.
• Citation: 274 S.W. 1025
• Parties: NAHORSKI v. ST. LOWS ELECTRIC TERMINAL RY. CO.
• Court: Missouri Supreme Court

274 S.W. 1025

NAHORSKI v. ST. LOWS ELECTRIC TERMINAL RY. CO.

No. 24640.

Supreme Court of Missouri, Division No. 1.

July 1, 1925.

Motion for Rehearing Overruled July 30, 1925

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

Action by Eugenia Nahorski against the St. Louis Electric Terminal Railway Company. Verdict for defendant, and plaintiff appeals. Affirmed.

Earl M. Pirkey, of St. Louis, for appellant. Burton & Hamilton, of Peoria, Ill., and Anderson, Gilbert & Wolfort, of St. Louis, for respondent.

ATWOOD, J.

Appellant and respondent will be referred to herein as plaintiff and defendant, respectively, they having so appeared in the prosecution of this case in the circuit court of the city of St. Louis. An automobile truck in which plaintiff was riding as an invitee and one of defendant's street cars collided at the intersection of Twelfth and North Market streets in the city of St. Louis, and plaintiff was thrown out and injured. Damages asked in the sum of $15,000.

Plaintiff pleaded the vigilant watch and speed ordinances of the city of St. Louis, and further alleged that plaintiff's injuries "were directly caused by the said negligence of defendant's motorman in as aforesaid negligently failing to sound the gong of said street car or to give warning of its approach before it as aforesaid struck said automobile, and in as aforesaid negligently failing at the time said automobile was struck as aforesaid and for some time next prior thereto, to keep a vigilant watch ahead for vehicles on or moving towards said track on which said street car was running; and in as aforesaid negligently failing to stop said street car before it struck said automobile, or check the speed of said street car sufficiently to prevent it from striking said automobile, when he knew or by the exercise of ordinary care would have known that said automobile was in imminent danger of being struck by said street car and said Eugenia Nahorski injured thereby, and that neither said Eugenia Nahorski nor the driver of said automobile could extricate said Eugenia Nahorski from said situation without said automobile being struck by said car, and said Eugenia Nahorski injured thereby, in time by the exercise of ordinary care to have, with the means at his command and consistent with the safety of the persons on said street car, stopped said street car before it struck said automobile as aforesaid or checked the speed of said street car sufficiently to have prevented it from striking said automobile; and in as aforesaid negligently running said car on said track on said Twelfth street at and for some time next prior to the time it as aforesaid struck said automobile at a negligent and high rate of speed and in excess of ten miles per hour; and in as aforesaid negligently causing and permitting said street car to as aforesaid strike said automobile."

Defendant's answer consisted of a general denial and a special plea of contributory negligence. Jury returned verdict for defendant, and plaintiff appeals. The facts will be referred to as they appear pertinent to the contentions here made.

I. Plaintiff's first assignment of error is that the court erred in refusing to set aside the verdict and appoint a next friend to represent her in a retrial of the case, because it was developed after the verdict was in that plaintiff was born September 15, 1901. The accident occurred November 24, 1921, the verdict was rendered June 14, 1922, and hence plaintiff was more than 18 years of age and under 21 years of age both at the time the injury occurred and at the time the verdict was rendered. By law approved March 25, 1921, effective June 20, 1921, the General Assembly of Missouri fixed the age of 21 years as "full age" for all persons. For some years previous, and on September 15, 1019, when plaintiff arrived at, the age of 18 years, the Missouri statute fixed the "full age" of females at 18 years. Section 370, R. S. 1919. Plaintiff contends that the act of 1921 changed her status as an adult to that of a minor, and from June 20, 1921, until September 15, 1922, when plaintiff reached the age of 21 years she was a minor. The act is found on page 399 Laws of Missouri 1921, and is as follows:

"Section 370. Minors, who considered.—All persons of the age of twenty-one years shall be considered of full age for all purposes, except as otherwise provided by law, and until that age is attained they shall be considered minors. Approved March 25, 1921."

Statutes fixing "full age" or legal majority affect the personal status of persons coming within it and the validity of their contracts. They are not merely procedural or remedial laws. To hold that this statute is retrospective in its operation would be to hold it unconstitutional. Section 15, art. 2, Constitution of Missouri. If its intent is, as plaintiff contends, to extend the minority of all persons who were over 18 and under 21 years of age at the time of its passage, it impairs the obligation of contracts entered into by such persons while they were of legal age under the prior statute, and the statute would have to be declared unconstitutional. No such intent appears in the language of the statute, and we hold that it is not retrospective in its operation.

Plaintiff further contends that, although she became of age on September 15, 1919, yet, by the new law which became effective June 20, 1921, she was thereby reduced to her former condition of minority. It cannot be said that the new statute extended her privileges as a minor, because these were terminated on her 18th birthday when she attained her legal majority under the statute then in effect. It is not likely that the General Assembly intended to disturb this status, nor do the terms of the statute indicate such intention. The law is not retrospective, and the phrase, "all persons," here evidently means all persons who, up to the time the law went into effect, had not reached their legal majority. A similar statute has recently been twice so construed in Kansas. Smith v. Smith, 104 Kan. 829, 180 P. 231; State ex rel. v. Lyons, 104 Kan. 702, 180 P. 802. The Kansas statute is found in the Kansas Session Acts of 1917, at page 234, and is as follows:

"The period of minority extends in males and females to the age of twenty-one years."

Prior to this enactment the Kansas statute read (section 6357, C. S. 1915):

"The period of minority extends in males to the age of twenty-one years, and in females to that of eighteen years."

The language, "males and females," in the Kansas statute of 1917, is as general and all inclusive as "all persons" in the Missouri statute. This assignment is ruled against plaintiff.

II. Plaintiff next contends that the verdict is against the evidence, and seeks to bring this case within the rule that courts are not bound to believe testimony contrary to the physical facts or inherently impossible. The testimony offered by plaintiff and that offered by defendant cannot be reconciled. No good purpose would be served by a restatement of the evidence here. A careful examination of the whole record discloses that both versions cannot be believed, but I either version might be believed. It was a proper case for the jury. The point here raised is without merit and is ruled against appellant.

III. Plaintiff says the court erred in giving instruction No. 7 (a), because there is no evidence tending to show that plaintiff was guilty of the negligence there specified; and (b) because said instruction excludes from the consideration of the jury the last chance theory of the case. Instruction No. 7 is as follows:

"The court instructs the jury that if the plaintiff negligently failed to look for the approaching car, and that whatever injuries, if any, plaintiff...