Sebek v. Wells

• Decision Date: 21 June 1929
• Docket Number: No. 20655.,20655.
• Citation: 18 S.W.2d 518
• Parties: SEBEK v. WELLS.
• Court: Missouri Court of Appeals

18 S.W.2d 518

SEBEK v. WELLS.

No. 20655.

St. Louis Court of Appeals. Missouri.

June 21, 1929.

Rehearing Denied July 2, 1929.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action by Marguerite Sebek against Rolla Wells, receiver of United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis and George T. Priest, both of St. Louis, for appellant.

Kurt Von Reppert, of St. Louis, for respondent.

BECKER, J.

Plaintiff, in her action for damages for personal injuries, obtained judgment in the sum of $2,500 against the defendant. This appeal follows in due course.

Plaintiff's petition states that Mississippi and Geyer avenues are public streets of the city of St. Louis, and that at the place aforesaid, on the 10th day of October, 1923, the plaintiff was lawfully upon Geyer avenue in the act of crossing the said Geyer avenue at its regular place of crossing for pedestrians from the north side of Geyer avenue to the south thereof; that at said place the defendant owned and maintained a single track east of Mississippi avenue, and that the streets and pavements between the tracks, and adjacent thereto, were lower than the rails of said track, and said track was above the surface of the ground for a distance of from 6 to 12 inches; that, as plaintiff passed over said track, she tripped and fell to the ground; that, at the time plaintiff so fell and tripped over the south rail of said tracks of said defendant, one of defendant's street cars was stopped and receiving and discharging passengers at the southwest corner of said Geyer and Mississippi avenues; that, while the plaintiff was lying on and near said south rail of said street car tracks, the defendant's agents and servants in charge of its said car negligently and carelessly caused, suffered, and permitted said car to be run against said plaintiff, dragging her for a distance of about 75 feet, and severely injuring her in the manner hereinafter more fully set forth.

Plaintiff's petition then sets up several assignments of negligence with reference to the handling of defendant's street car, and, in addition, pleads an ordinance of the city of St. Louis which requires defendant company to keep the space between its tracks and a foot on each side of its rails level, smooth, and in a reasonably safe condition for pedestrians and the public to walk across them, and alleges failure on the part of the defendant to comply with said ordinance, and that such failure directly caused plaintiff to sustain the injuries set out in the petition.

Defendant's answer was a general denial, coupled with a plea of contributory negligence, in that, if said tracks and street were in the condition alleged in plaintiff's petition, plaintiff, in the exercise of ordinary care, and by looking, could have seen and avoided the same.

The record discloses that, after the jury had been impaneled and the pleadings read and plaintiff had called her first witness, the defendant made an oral motion to require the plaintiff to elect upon which of the two causes of action set out in her petition she would stand, which motion the court overruled, and defendant excepted. That ruling is here assigned as error.

Plaintiff's petition does in fact set up two causes of action improperly blended in one count, but it is readily apparent that the two causes of action are not inconsistent or that either one is destroyed by the other. In this situation, where the defendant as here refused to stand on its motion to elect, filed answer, and went to trial, and took the chances of winning or losing on an issue of fact, it has been held in a long line of cases that defendant thereby abandons its motion to elect, "for a motion to elect is of no more dignity and potency than a motion to make more specific and certain, than a demurrer, or a motion to strike out because of departure, or because of redundant, irrelevant or frivolous matter; and * * * if a defendant is held (as he is) to have waived his demurrer of his motion to strike out or his motion to make an allegation more specific by joining issue on the facts by answer, then, as like reason makes like law, he must, by the same token, be held to have waived his motion to elect by answering over except where the allegations are so contradictory as to be self-destructive and, therefore, no cause of action is stated." White v. Ry. Co., 202 Mo. 539, loc. cit. 562, 101 S. W. 14, 21; O'Brien v. St. Louis Transit Co., 212 Mo. 59, 110 S. W. 705, 15 Ann. Cas. 86; Childs v. Ry. Co., 117 Mo. 414, 23 S. W. 373; State ex rel. Ziegenhein v. Tittmann, 103 Mo. 553, loc. cit. 569, 15 S. W. 936; Paddock v. Somes, 102 Mo. 226, loc. cit. 235, 14 S. W. 746, 10 L. R. A. 254; Christal v. Craig, 80 Mo. 367; Wills v. Ry. Co., 133 Mo. App. 625, loc. cit. 636, 113 S. W. 713.

Holding as we do that the error in the petition is that it states two (not inconsistent) causes of action in one and the same count, we rule, on authority of the cases cited above, that this imperfection was waived by answering to the merits and going to trial thereon.

It is argued by defendant that its demurrer to the evidence "under the cause of action, namely, that plaintiff was injured through the negligent operation of the car, should have been sustained because there was no evidence showing that the car struck and injured plaintiff." This point is without merit.

Joseph A. Duch testified that he was a chauffeur in the St. Louis police department, and that he was standing in a grocery store on the south side of Geyer avenue, east of Mississippi avenue, on the day in question, and saw plaintiff coming into the store all excited "and her clothing was all muffled and it seemed like she was rolled or something. * * * She was muddy all over. Being rolled is as much as I can explain it."

Dr. Robert S. Reder testified he was called in by plaintiff and found, "she had bruises, severe bruises and lacerations of both kneecaps just below the knees, bruises of both hips, scratches and pains, in fact all over the body." And, as to the bruises and cuts, he testified "they were more or less all over the body, arms and limbs and face."

Harry Cline, a policeman, testified he saw plaintiff coming south across Geyer avenue at the east side of Mississippi avenue at the regular crossing place, that he saw her fall at the south rail of defendant's car track, and that just as he started to run across to give her assistance one of defendant's street cars "hit the crossing at Mississippi and Geyer avenues and attracted my attention. It shot by me between me and her. I didn't get across." As to the rate of speed of the street car, he stated, "It must have been running twenty-five miles an hour." He was asked: "And where was it with reference to the point...