Schall v. United Rys. Co. of St. Louis
| Decision Date | 02 June 1919 |
| Docket Number | No. 20205.,20205. |
| Citation | 212 S.W. 890 |
| Parties | SCHALL, Public Adm'r, v. UNITED RYS. CO. OF ST. LOUIS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.
Action by Edward G. Schall, Public Administrator for the county of St. Louis, in charge of the estate of Archie Ferguson, alias T. F. Jordon, deceased, against the United Railways Company of St. Louis. From an order setting aside verdict for defendant and granting new trial, defendant appeals. Order reversed, and cause remanded, with directions to reinstate verdict and enter judgment thereon.
Action for the alleged negligent killing of one Archie Ferguson, alias T. F. Jordon, brought by the public administrator of St. Louis county, in charge of the estate of decedent.
The defendant operates a double-track line of railroad in St. Louis county known as the Creve Cœur line. It is an electric street railway line partially in the city of St. Louis and partially in St. Louis county. Decedent was a passenger on a west-bound car on said line, having as his destination a point where said street car tracks cross or intersect with Walton road in said county. He safely alighted from the car at or near the place of his destination, and in attempting to cross the track of defendant upon which the east-bound cars of defendant ran he was struck by an eastbound car and killed. The petition charges several grounds of negligence, but when the cause was submitted to the jury all were abandoned except the one bottomed on the humanitarian rule.
The answer of defendant contained: (1) A general denial; and (2) a plea of contributory negligence. Reply was in conventional form for such an answer.
Upon a trial before a jury the defendant had a verdict. Upon plaintiff's motion for new trial the court set aside such verdict, and defendant has appealed from the order setting aside the verdict. The petition prayed for damages in the sum of $10,000.
The fourth ground of the motion for new trial charged that the court had erred in giving instruction No. 7 for the defendant, and it was upon this ground alone that the trial court sustained the motion. Instruction No. 7, mentioned above, reads:
"The court instructs the jury that the motorman in charge of the car at the time had the right to presume that Ferguson, the deceased, would not move from a position of safety and into one of danger, and there was no duty upon said motorman to stop said car until he saw, or by the exercise of ordinary care would have seen, said Ferguson in a position of imminent peril; therefore, if you find from all the evidence in the case that said Ferguson did move from a position of safety to a position immediately in front of the on-coming car and so close to same that the motorman in the exercise of ordinary care could not stop said car and avoid striking said Ferguson after discovering his peril, then the plaintiff is not entitled to recover in this case, and your verdict should be in favor of the defendant."
Defendant demurred to the evidence at the close of the case, which instruction in the nature of a demurrer to the evidence was overruled, and exception duly saved. These two matters cover the contested points of the 'case. Respondent claims in the brief that the record does not show upon what ground of the motion for new trial the action of the court in granting the motion was taken. The printed abstract of the record avers that the order granting the new trial was based upon the fourth ground of the motion, and there is no counter abstract. This sufficiently outlines the case.
T. E. Francis, of St. Louis, A. E. L. Gardner, of Clayton, and Chauncey H. Clarke, both of St. Louis, for appellant.
Albert E. Hausman, of St. Louis, for respondent.
GRAVES, J. (after stating the facts as above).
With the view we have of the facts in, this case it is necessary to discuss but one point raised. It is a case purely under the humanitarian rule. All other alleged negligence was abandoned by the plaintiff, and a reading of the record shows...
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Marczuk v. St. Louis Public Service Co.
...to warn when the evidence shows that he was not oblivious. State ex rel. Alsup v. Tatlow, 346 Mo. 1025, 144 S.W.2d 140; Schall v. United Rys. Co. (Mo.), 212 S.W. 890. But fact that the plaintiff once saw the streetcar does not prevent him from thereafter obliviously coming into a position o......
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Chapman v. Missouri Pacific Railroad Co.
...No. 3. Reno v. Railway Co., 180 Mo. 469; Roenfeldt v. Railway Co., 180 Mo. 566; McGee v. Railway Co., 153 Mo.App. 498; Schall v. United Ry. Co., 212 S.W. 890; Boyd Railway Co., 105 Mo. 371. (4) The court should not have submitted the case to the jury under the "Humanitarian" or "Last Clear ......
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Marczuk v. St. Louis Public Service Co., 39784.
...v. Kurn, 235 Mo. App. 109, 142 S.W. (2d) 772; State ex rel. Alsup v. Tatlow, 346 Mo. 1025, 144 S.W. (2d) 140; Schall v. United Railways, 212 S.W. 890; Jordan v. St. Joseph Ry., 38 S.W. (2d) 1042; Beal v. St. Louis-S.F. Ry. Co., 256 S.W. 733. (2) The court erred in refusing to give defendant......