Schroeder v. Wells

• Citation: 276 S.W. 60
• Decision Date: 09 October 1925
• Docket Number: No. 25028.,25028.
• Parties: SCHROEDER v. WELLS.
• Court: United States State Supreme Court of Missouri

276 S.W. 60

SCHROEDER v. WELLS.

No. 25028.

Supreme Court of Missouri, Division No. 1.

October 9, 1925.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

Action by Paul Schroeder against Rolla Wells, receiver of United Railways Company of St. Louis. Verdict for defendant. From an order sustaining plaintiff's motion for a new trial, defendant appeals. Affirmed, and cause remanded.

Charles W. Bates, T. E. Francis, and John F. Evans, all of St. Louis, for appellant.

Rassieur, Kammerer & Rassieur, and Mark D. Eagleton, all of St. Louis, for respondent.

GRAVES, J.

Action for personal injuries. Upon a trial nisi, the defendant had a verdict from the jury. Motion was filed by plaintiff asking for a new trial, and this motion was sustained and a new trial granted. From such order the defendant takes this appeal. The pleadings are thus tersely outlined by appellant:

"The amended petition counts upon the following assignments of negligence: (1) Negligent failure to keep a vigilant watch and stop the car in the shortest time and space possible, in violation of the ordinance; (2) negligent operation of the car at a high, excessive, dangerous, and unreasonable rate of speed under the circumstances; (3) negligent operation at a speed in excess of 15 miles per hour, in violation of the ordinance; (4) negligent failure to stop the car, slacken its speed, or give warning of its approach, after the motorman saw, or by the exercise of ordinary care could have seen, plaintiff in a position of danger; and (5) negligent failure to give warning of the approach of the car.

"The answer consisted of a general denial coupled with affirmative defenses as follows: (1) Carelessness and negligence on the part of plaintiff in allowing and permitting himself to be driven toward a street railway track and immediately in front of and in close and dangerous proximity to an approaching street car, when he saw and heard, or by the exercise of ordinary care could have seen and heard, the approaching car in time to have warned the driver of the automobile and thereby have avoided the collision; (2) carelessness and negligence in failing to warn the driver of the automobile and in allowing her to turn said automobile in the middle of the block without giving warning of her intention so to do, in violation of section 1274, Revised Code of St. Louis for 1914; (3) carelessness and negligence in knowingly allowing and permitting the automobile to be turned to the left in the middle of a block, and to be there driven immediately in front of and in close and dangerous proximity to an approaching street car.

"The reply was in the conventional form of general denial."

The sole assignment of error reads:

"Said court erred for the reasons set out in point 1 of points and authorities in sustaining plaintiff's motion for new trial, and in ordering a new trial in said cause."

To make this assignment complete, we quote point 1 in the brief, which is as follows:

"The trial court erred in granting plaintiff a new trial, for the reason that plaintiff failed to make a case for the jury, and defendant's instructions in the nature of demurrers to the evidence, offered at the close of plaintiff's case and at the close of the whole case, respectively, should have been given."

We then have subdivisions A, B, and C, of point 1, quoted, supra, which are the detailed reasons as to why the demurrer to the evidence should have been sustained. These subdivisions or reasons, excluding the authorities cited, are in this language:

"A. The testimony demonstrates that plaintiff was guilty of contributory negligence as a matter of law, which would bar recovery upon every theory of primary negligence.

"B. By submitting his case solely on the humanitarian or last chance theory of recovery, plaintiff abandoned all other assignments of negligence contained in the amended petition.

"C. There is no competent or substantial evidence to support a verdict based upon the humanitarian or last chance theory."

The record shows that the trial court sustained the motion for new trial on the fifth ground thereof, which reads:

"Fifth. The court, at the instance and request of defendant, and over the objection of plaintiff, erred in giving improper and erroneous instructions to the jury."

There were some ten assigned grounds for a new trial in the motion of plaintiff, including some three others which challenged the giving of each and every instruction for defendant, singling them out by number, awl charging inconsistent instructions. In the brief here, learned counsel for appellant Make no attempt to justify their instructions given, but press only the one matter; i. e. that their demurrer to the evidence (offered at the close of plaintiff's case, and reoffered at the close of the whole case) should have been sustained. It should be said here that, after the court overruled the demurrer to the evidence at the close of the whole case, the plaintiff's case was submitted to the jury upon the humanitarian doctrine only. The brief of appellant upon its face is a confession of error in the instructions given for appellant in the trial. This because no defense is made of such instructions. In such situation we must and shall confine this opinion to the single matter assigned as error. This is a general outline of the conduct of the trial, and we leave to the other paragraphs the evidential facts and the legal questions involved.

I. The facts of this case are simple, although those for plaintiff and those for defendant are not (upon several vital matters) in accord. We are now dealing with a demurrer to the evidence, and for that reason the facts upon the plaintiff's side of the case are the ones of prime importance. Countervailing facts in behalf of defendant lend no light upon the single issue raised upon this appeal.

Plaintiff and his wife were joint owners and users of a Dodge touring car or automobile. At about 5:45 p. m. of April 23, 1910, they were in this car, traveling west on Arsenal street in the city of St. Louis. The wife was driving, and the car was a few feet off the north curb of such street. The street runs east and west, and near the center thereof the defendant maintained and operated a double track street railway. Street cars going west went upon the north track, and those going east used the south track. A stipulation in the record gives the distance and measurements. This stipulation is as follows:

"The appellant having, through oversight, overlooked the printing of Plaintiff's Exhibit B, a plat offered and introduced in evidence showing the measurements between curbs and the respective rails and tracks on Arsenal street, stipulates and agrees with the respondent, through their respective attorneys, that said plat was offered in evidence and considered by the jury and showed the exact measurements between the north and south curb of Arsenal street and the space between the rails and tracks laid in the center of said Arsenal street, and that there was a space of 15 feet between the north rail of the west-bound track and the south rail of the east-bound track, and that the space between each of the rails was approximately. 5 feet, making 5 feet between the north and south rails of the west-bound track, 5 feet between the north and south rails of the eastbound track and 5 feet between the two sets of tracks, and that these measurements may be considered as a part of the record, the same as if duly and regularly abstracted."

While driving west, the automobile was about 8 feet from the north curb of the street. At or near No. 4036 Arsenal street the driver turned to the south for the purpose of heading her automobile east and parking against the south curb of the street in front of No. 4036. In making this turn (which was not at a street intersection), the automobile had practically cleared both tracks when the rear portion of the machine was struck by a rapidly moving east-bound car, then being operated by defendant. As indication of its speed (and in addition to other evidence as to that fact), the street car ran 200 feet before it could be stopped after the collision. Two or three feet more would have placed the automobile across the south railway tracks, and into a place of safety. Estimates as to the speed of the automobile ranged from 5 to 8 miles per hour. Plaintiff's witnesses placed the rate of speed of the street car at from 30 to 35 miles per hour, and we are entitled to consider the latter speed upon this demurrer. Defendant's evidence (not material upon the one issue before us) placed the street car speed at 12 or 15 miles per hour. The ordinance speed limit (for street cars) at this place...