Rose v. St. Louis-San Francisco Railway Co.
| Decision Date | 15 November 1926 |
| Docket Number | 25140 |
| Citation | 289 S.W. 913,315 Mo. 1181 |
| Parties | Hugh Rose v. St. Louis-San Francisco Railway Company, Appellant |
| Court | Missouri Supreme Court |
Reported at 315 Mo. 1181 at 1198.
Original Opinion of November 15, 1926, Reported at 315 Mo. 1181.
On Motion for Rehearing.
In their motion for a rehearing counsel for appellant find no fault with our view that the case finally made was on the humanitarian rule, but urge that allegations in plaintiff's petition to the effect that members of the train crew and the station agent had instructed plaintiff to assist, and for a long period of time plaintiff had been in the habit of assisting, the switching crew in the switching of trains and cars, and in the coupling and uncoupling of cars, were not material allegations, and that the court committed reversible error in admitting evidence in support thereof.
Defendant filed no motion to strike out or to make the petition more definite and certain, but in the first instance answered both generally and specially putting these allegations as well as other matters alleged in issue. In this state of the pleadings plaintiff had a right to offer evidence tending to support the issues. From time to time defendant objected to evidence offered in support of the above allegations. When these objections were overruled defendant, of course, had a right to combat the trend of this evidence without waiving its objections thereto, and we have not held otherwise. Defendant's objections were advanced on the grounds that such evidence was incompetent, immaterial and did not tend to prove any of the allegations of the petition. Even now counsel contend that this evidence was incompetent, because there was no showing of authority to bind the defendant. When all the evidence was in the trial court evidently shared this view, because the case was submitted as made solely on the humanitarian theory, and above Instructions 6, 11 and 13, expressly directing the jury that they could not find for plaintiff on the theories advanced by the above and similar allegations, were given in the exact form asked by defendant. Furthermore, defendant never made any further or different request that this character of evidence be withdrawn from the jury. We think it was sufficiently withdrawn by the instructions given, but appellant having failed to request that it be done otherwise is not in position to complain of the court's...
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