Reynolds v. United Railways Co.

• Decision Date: 19 October 1909
• Citation: 121 S.W. 1093,142 Mo.App. 708
• Parties: THOMAS JEFFERSON REYNOLDS, Respondent, v. UNITED RAILWAYS COMPANY, of St. Louis, Appellant
• Court: Missouri Court of Appeals

121 S.W. 1093

142 Mo.App. 708

THOMAS JEFFERSON REYNOLDS, Respondent, v. UNITED RAILWAYS COMPANY, of St. Louis, Appellant

Court of Appeals of Missouri, St. Louis

October 19, 1909

Argued and Submitted October 6, 1909

Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor Judge.

REVERSED AND REMANDED.

STATEMENT.--The petition filed contained two counts, the first count founded on what is known as "The Vigilant Watch" ordinance of the city of St. Louis, the second on common law negligence. The cause of action is based on a collision between plaintiff's wagon and an on-coming car of defendant. At the time of the accident plaintiff was driving along the tracks of defendant's road, and at a point where an excavation in the street along side of the track rendered it impracticable to use the street, his wagon was overtaken and run into by a car operated by defendant company, plaintiff thrown off and hurt, his horses so injured that one of them died, the load in the wagon also being damaged. The evidence tended to show that the value of the horse which died as the result of the injuries was $ 225; the damage to the other horse $ 200; the wagon which was demolished was valued at $ 175, and would cost $ 225 to replace it with a new one; that plaintiff's clothes were damaged in the amount of $ 10; he was idle four weeks or more on account of his injuries, which consisted of a scalp wound cuts and bruises on his face, head and shoulder, his back was wrenched, his hip and knee injured, followed by general physical weakness, pains, trouble in his head and body.

At the close of the evidence plaintiff dismissed as to the first count and went to the jury on the second.

Among the instructions given at the instance of plaintiff are two numbered 2 and 3, and as follows:

"2. The court instructs the jury that by the terms of the ordinance read in evidence, the defendant's motorman in charge of the car that collided with the vehicle of which plaintiff was an occupant (if you find that the said car did so collide with said vehicle), was bound to keep a vigilant watch for persons on foot and vehicles, either upon defendant's track or moving towards it, and on the first appearance of danger to such person or vehicle the person or persons in charge of said car were bound to use ordinary care to stop said car in the shortest time and space possible under the circumstances, by reasonable use of the means at his command, and a failure to keep such vigilant watch and to so stop said car upon the first appearance of danger (if defendant's said servant did so fail) was negligence upon the part of the defendant, and if you find that such negligence caused said injury to plaintiff's person and damage to his property; and if the plaintiff in said vehicle was exercising ordinary care at the time of and before said injury in averting injury from collision with said car, then plaintiff is entitled to recover.

"3. If the jury find for the plaintiff it should assess his damages at such sum as it believes from the evidence will be a fair compensation to him.

"First. For any pain of body or mind that the plaintiff has suffered caused directly by his injuries;

"Second. For any expenses necessarily incurred by plaintiff in employing others to assist him in his business, caused directly by his injuries;

"Third. For any expenses necessarily incurred by plaintiff for medicines and medical attention, directly caused by his injuries;

"Fourth. For any loss which the plaintiff sustained to his wagon, team or clothes, caused directly by defendant's negligence.

"All of which damages taken together should not exceed the sum of thirty-two hundred and sixty dollars ($ 3260)."

There was a verdict of $ 1800 in favor of plaintiff, followed by a judgment for that amount. After an unsuccessful motion for a new trial and duly saving exceptions, defendant appeals.

Judgment reversed and cause remanded.

Boyle & Priest and Glendy B. Arnold for appellant.

(1) Plaintiff's second instruction is erroneous because it authorizes a verdict for the violation of the vigilant watch ordinance when no such charge was contained in that count of the petition on which the case was submitted to the jury. Bragg v. Railroad, 192 Mo. 350; Bailey v. Kansas City, 189 Mo. 514; Givens v. Van Studdiford, 86 Mo. 159; State v. Oddle, 42 Mo. 214; Mooney v. Kennett, 19 Mo. 555. (2) Plaintiff cannot sue on one cause of action and recover on another. Chitty v. Railroad, 148 Mo. 74; Briscoe v. Railroad, 118 Mo.App. 671. (3) Plaintiff's third instruction is erroneous because it does not limit plaintiff's recovery, for the various items of damage, to the respective amounts specified in his petition. Tinkle v. Railroad, 212 Mo. 445; Smoot v. Kansas City, 194 Mo. 522. (4) Plaintiff's third instruction is erroneous for the further reason that the jury are authorized therein to award damages for any expenses incurred by plaintiff in employing others to assist him in his business, and for medicine and medical attention, while there is no evidence from which the jury could determine the reasonable value of such expenses. Heidebrink v. Railways Co., 133 Mo.App. 40; Gibler v. Railroad, 203 Mo. 208.

Hezekiah Sanders and Frederick A. Mayhall for respondent.

(1) Plaintiff was entitled to show his earnings. Sluder v Transit Co., 189 Mo. 144; Davidson v. Transit Co., 211 Mo. 355; Nulson v. Railroad, 88 S.W. 781; Tullis v. McDary, 104 N.W. 505; McCarty v. Transit Co., 108 Mo.App. 317. (2) The vigilant watch ordinance is merely declaratory of the common law. Deschner v. Railroad, 200 Mo. 310; Havarka v. Railroad, 191 Mo. 454; Rapp v. Railroad, 190 Mo. 153; White v. Railroad, 202 Mo. 560; Haley v. Railroad, 197 Mo. 23. The vigilant watch ordinance, being merely declaratory of the common law, is admissible as evidence though not pleaded, where the action is founded on common law negligence. Bailey v. Kansas City, 189 Mo. 514; Deschner v. Railroad, 108 Mo.App. 553; Septowski v. Railroad, 102 Mo.App. 110. Where an ordinance of a city is read to the jury as a mere matter of evidence, it should not be pleaded, for to plead evidential facts is bad, and this applies to ordinances. Bailey v. Kansas City, 189 Mo. 514; Robertson v. Railroad, 84 Mo. 121; Danker v. Mfg. Co., 102 Mo.App. 731. The ordinance being introduced as evidence, respondent was entitled to an instruction upon that, as well as any other material fact properly before the jury. Hofelman v. Valentine, 26 Mo. 393; Noffsinger v. Bailey, 72 Mo. 216. Instructions should cover all the issues in evidence. Helm v. Railroad, 98 Mo.App. 419. (3) Although a declaration of law given for the prevailing party is erroneous, yet, if the judgment on the uncontroverted evidence is for the right party, the appellate court will not interfere. Fairbanks v. Long, 91 Mo. 628; Fidelity Co. v. Colvin & Jackson, 83 Mo.App. 204. The defendant may not stand by mute and ask no instruction on a given point if there is evidence to sustain the instruction, and then object that the instruction offered by plaintiff is misleading and general in its scope. The instruction is good as far as it goes. This is true of all elements of damage, except as to amount or value of physician's services. Flaherty v. Railroad, 207 Mo. 338; Duke v. Railroad, 99 Mo. 351; Bragg v. Railroad, 192 Mo. 350; Browning v. Railroad, 124 Mo. 71; Geisman v. Missouri-Edison, 170 Mo. 654; Wheeler v. Bowles, 163 Mo. 398; Merrilees v. Railroad, 163 Mo. 483; Forman v. Railroad, 113 Mo. 408. A general instruction on measure of damages is permissible under the petition. Sweet v. Maupin, 65 Mo. 65; Lynch v. Railroad, 208 Mo. 44; Flaherty v. Railroad, 207 Mo. 338. Failure to make motion to make petition more definite and certain as to elements of damage amounted to waiver and defendant cannot now be heard to complain. R. S. 1899, sec. 640; Lynch v. Railroad, supra; State v. Rucker, 59 Mo. 17; Field v. Barnes, 35 Mo.App. 511; Carver v. Thornhill, 53 Mo. 283; McClintock v. Bank, 120 Mo. 127. Defendant's offer to allow judgment to be taken is, in effect, the same as an admission made in the answer, or an admission of the defendant on trial. It is permissible in cases of unliquidated damages and authorizes an offer and...