Spiro v. St. Louis Transit Company
| Decision Date | 13 December 1904 |
| Parties | SPIRO, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.
This case was here on a former appeal and is reported in 102 Mo.App. 250. It is here this time in short form with a very much abbreviated statement of the evidence. The petition set forth section 1760, article 6, McQuillin's Municipal Code, from the first to the seventh subdivision inclusive known as the vigilant watch ordinance, and alleged injury to plaintiff's horse and wagon by being struck by one of defendant's cars running on Laclede avenue, in the city of St. Louis, and averred that the collision between plaintiff's wagon and the car was due to the negligence of defendant's servants in failing to observe and obey the fourth clause of the vigilant watch ordinance. It is alleged that defendant's servant's saw the plaintiff's wagon in time to have stopped the car and avoided the collision but negligently failed to do so; also that the defendant's servants, by keeping a vigilant watch ahead, would have seen the perilous position of plaintiff's horse and wagon in time to have stopped the car and averted the collision, but neglected to do so.
The driver of the wagon testified that on the second day of December, 1902, at ten o'clock, on a dark and foggy morning, he was an employee of plaintiff and as such was driving plaintiff's horse and wagon west on Laclede avenue, in the north track of defendant's street railway. He looked for cars, both before and after he went on the track, but saw none, and when he had proceeded about seventy-five feet was struck in the rear by a west-bound Laclede avenue car.
John Fay, a witness for plaintiff, testified that he saw the accident in question in this case.
Plaintiff offered a witness who, after qualifying as an expert testified that if the car, which collided with the wagon had been running at a speed from fourteen to fifteen miles per hour, it could have been stopped in from forty-five to sixty feet.
The ordinance set out in the petition was not offered in evidence but was read to the jury when the petition was read in the opening of the case by the plaintiff's attorney.
The motorman testified that he was in charge of the car in question. He saw the wagon in question going west on Laclede avenue in the south-bound track when about fifty feet from him. It crossed in front of his car onto the north-bound track and was struck before he could stop his car. He was going fourteen miles an hour, and ran seventy-five feet after hitting the wagon. The day was dark and rainy. Under the circumstances he believed the car could have been stopped in one hundred feet. This evidence was corroborated by the conductor and two passengers who were on the car at the time of the collision.
At the close of all the evidence defendant moved the court to instruct the jury that under the law and the evidence the plaintiff was not entitled to recover. The court refused this instruction and the jury, after receiving instructions from the court, found a verdict for plaintiff for one hundred and three dollars. Defendant appealed.
Judgment reversed and cause remanded.
Sears Lehmann with Geo. W. Easley for appellant; Boyle, Priest & Lehmann of counsel.
(1) The peremptory instructions in the nature of demurrers to the evidence offered by defendant at the close of plaintiff's testimony, and again at the close of all the testimony, should have been given. For: (a) This case is found exclusively on the violation of an alleged ordinance of the city of St. Louis. Spiro v. Transit Co., 102 Mo.App. 260, 76 S.W. 684. (b) No ordinance of the city of St. Louis was proved. (2) Facts essential to plaintiff's recovery must be proved as well as alleged and the existence of an alleged ordinance is like any other fact put in issue by defendant's denial and must be proved. Keane v. Klausman, 21 Mo.App. 485; St. Louis v. Railroad, 12 Mo.App. 591; Cox v. St. Louis, 11 Mo. 431; Mooney v. Kennett, 19 Mo. 551; St. Louis v. Roche, 128 Mo. 541, 31 S.W. 915; Fuhrman v. City of Huntsville, 54 Ala. 263; Garland v. Denver, 11 Colo. 534, 19 P. 460; Freeman v. State, 19 Fla. 552; Railroad v. Young, 81 Ga. 397, 7 S.E. 912; People v. Buchanan, 1 Idaho 681; Weaver v. Snow, 60 Ill.App. 624; Goodrich v. Brown, 30 Iowa 291; City v. Nichols, 48 Kan. 430, 29 P. 679; City v. Labatt, 33 La. Ann. 107; Shanfelter v. City, 80 Md. 483, 31 A. 439; City v. Burke, 23 Minn. 254; City v. Ashley Co., 34 S.C. 541, 13 S.E. 845; City v. Walton, 68 Tex. 507, 5 S.W. 70; How v. Railroad, 38 Wis. 463.
John J. O'Connor for respondent.
At the trial counsel for plaintiff read to the jury the city ordinance, involved in this case, from the plaintiff's complaint, and thereafter throughout the trial said ordinance was treated by court, counsel and parties as being in evidence; this reading of the ordinance is shown by the bill of exceptions, filed by the defendant. And where the trial is had with reference to a certain paper or piece of evidence neither party will be permitted to complain after the verdict that such paper or piece of evidence was not formally offered by the party using...
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