Schrader v. Burkel

• Decision Date: 07 March 1924
• Docket Number: No. 23948.,23948.
• Citation: 260 S.W. 63
• Parties: SCHRADER v. BURKEL.
• Court: Missouri Supreme Court

260 S.W. 63

SCHRADER v. BURKEL.

No. 23948.

Supreme Court of Missouri, Division No.

March 7, 1924.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Ella Schrader against Edgar A. Burkel. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Taylor R. Young, of St. Louis, for appellant.

GRAVES, P. J.

Action for personal injuries. The petition is extremely short, and, inasmuch as we find it to be peculiarly worded, we quote it in full, thus:

"Plaintiff states that on or about the 25th day of October, 1919, she was, and for a long time prior thereto, had been the lawfully wedded wife of Leo Schrader; that on or about the said date said Leo Schrader had stopped an automobile he was operating on the east side of Grand avenue, near the intersection of Chouteau avenue, in the city of St. Louis, Mo., said Grand avenue being a public street in said city, and was in the act of changing a tire on said automobile being so operated by him, when the defendant so carelessly and negligently operated an automobile northwardly on said Grand avenue as to collide with and strike the plaintiff's said husband, as a direct result of which he was killed.

"Plaintiff further states that the said injury and death of the said Leo Schrader, said husband of this plaintiff, was directly caused by the following criminal carelessness on the part of the defendant, to wit:

"(1) In failing to look and observe plaintiff's said husband on the street, when by looking he could have observed him in the act of changing said tire, and turned to the left and avoided striking him, but feloniously neglected so to do.

"(2) In feloniously operating an automobile at said time and place at a greater rate of speed than was reasonable under the circumstances, to wit, at a rate of speed greatly in excess of 25 miles per hour.

"Plaintiff states that on or about the 16th day of January, 1920, she instituted a suit in the circuit court, city of St. Louis, state of Missouri, against the defendant for the death of her said husband, and that said suit was pending in said circuit court until on or about the 5th day of November, 1920, at which time said suit was dismissed for failure to secure costs, and the time during which said suit was pending is not included in computing the time of the statute of limitations herein, by reason of which this suit was filed within the time allowed by statute.

"Wherefore plaintiff prays judgment against the defendant, together with costs of suit, in the sum of $10,000."

The answer is (1) a general denial; (2) that the action was brought more than six months after the death of the husband, and that for such reason the plaintiff could not maintain such action, and that the action was brought more than a year after the death, and is absolutely barred under the statute; (3) contributory negligence upon the part of deceased; and (4) that the ordinances of the city required the deceased to have a rear lighted lamp upon his car, "exhibiting one red light plainly visible for a distance of 500 feet in the rear of said vehicle"; that deceased did not have such light, and his failure in this regard occasioned his injury. Reply was a general denial.

Upon the trial plaintiff introduced some three witnesses, and rested her case. According to a recital in the record the court indicated that a demurrer to the evidence would be sustained, whereupon the plaintiff requested that the case be reopened, which was done, and the plaintiff placed upon the stand the defendant as her fourth witness. The plaintiff for the second time rested her case, and the trial court directed the jury to return a verdict for defendant, which was done, and from a judgment upon such verdict the plaintiff has appealed. The case is therefore one of fact rather than law.

I. We are totally in the dark as to the theory of the trial court, or the theory of the respondent. Respondent has filed no brief, but rests under the protecting arm of a judgment in his favor. As suggested, the petition is out of the ordinary, in that it pleads criminal negligence in addition to the usual charge of a causal negligence as set out in the first paragraph of the petition; there is a charge designated as criminal carelessness, subdivided into two parts. Suffice it to say that there is no evidence in the record supporting the theory of a criminal intent or criminal act. If the evidence for plaintiff shows anything, it tends to show plain negligence, and no more. Of this in the next paragraph.

II. In our judgment the first paragraph of this petition contains a sufficient plea of negligence...