State v. Daues

• Decision Date: 25 June 1926
• Docket Number: No. 26899.,26899.
• Citation: 285 S.W. 986
• Parties: STATE ex rel. MEYER v. DAUES et al., Judges.
• Court: Missouri Supreme Court

285 S.W. 986

STATE ex rel. MEYER v. DAUES et al., Judges.

No. 26899.

Supreme Court of Missouri, Division No. 2.

June 25, 1926.

Action by Clara Meyer against Rolla Wells, receiver of the United Railways Company. Judgment for plaintiff was reversed by the Court of Appeals (277 S. W. 585), and plaintiff brings certiorari against Chas. E. Danes and others, judges of that court. Opinion and judgment of the Court of Appeals quashed.

Douglass, Inman & Horsefield, of St. Louis, for relator.

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

HIGBEE, C.

Certiorari to review the opinion and judgment of the St. Louis Court of Appeals, reversing and remanding the judgment of the circuit court of the city of St. Louis in the case of Clara Meyer v. Rolla Wells, Receiver of the United Railways Co., Appellant, 277 S. W. 585.

About 9 p. m. on February 23, 1923, the relator was riding in an automobile driven by Morris Schneider, the owner of the automobile, westward on Olive street in the city of St. Louis. There were many automobiles parked on the north side of the street, in consequence of which Schneider drove his car with its left wheels on the south side of the north rail of the north street car track. Before entering Olive street Schneider looked and saw no west-bound street car. While driving about 10 miles per hour, with the taillight on his automobile burning, a westbound street car ran into the rear end of the automobile, inflicting serious bodily injuries on the relator.

The case was submitted on the humanitarian rule and the vigilant watch ordinance, resulting in a verdict and judgment for the relator for $7,500. We quote from the opinion:

"The motorman and conductor of the street car, called on behalf of defendant, testified that as the street car proceeded west the automobile in which plaintiff was riding ran suddenly and at a rapid rate of speed out of an alley or driveway on the north side of Olive street directly in front of the street car; that as the automobile turned to the west it was struck by the street car and was shoved against another automobile parked on the north side of Olive; that the street car was running at a speed of about 10 miles per hour as it approached the alley or driveway; that the car was stopped within a distance of 2 ½ to 3 feet after it collided with the automobile; that the car was stopped as soon as it was possible to stop it after the automobile came into the danger zone; that the car ran 8 to 9 feet after the brakes were applied before it collided with the automobile; that there were automobiles parked all along the north side of Olive; and that the distance between the parked automobiles and the overhang of the street car was about 4 feet. * * *

"The conductor of the street car, called as a witness for plaintiff in rebuttal, testified that at the time of the accident there were 10 or 12 passengers on his car, and that he got the names of the passengers and forwarded them with his report of the accident to the foreman of his district. Defendant's counsel unavailingly moved to strike out this testimony. In the colloquy that ensued between the court and counsel, plaintiff's counsel remarked: `They had the witnesses, but didn't produce them.' Objection to this remark, with a request to strike it out, made by defendant's counsel, was overruled by the court. Whereupon on cross-examination of the witness defendant's counsel asked: `Did any of the passengers tell you that they saw the accident?' Objection to this question by plaintiff's counsel was sustained by the court.

"Defendant assigns reversible error on the part of the trial court for permitting the plaintiff's counsel to argue to the jury, over the objections and exceptions of defendant, as follows:

"`Now, let us look at the conductor's testimony. He says there were 10 or 12 passengers on that car and they saw this accident. The testimony is they took their names and that they were sent in to the United Railways. The plaintiff was taken away in an ambulance, and she had no opportunity to get names of witnesses. We don't know who they are; had no opportunity of knowing. There was no one described them and they are not here, none of them.'

"This argument was highly improper and prejudicial. There is no justification or excuse for it in the record. There was no such relation. existing between the passengers and the defendant as to warrant the jury in drawing any inference unfavorable to the defendant for failing to produce the passengers as witnesses." Page 586.

In Evans v. Trenton, 112 Mo. 390, 401, 20 S. W. 614, 616, the court said, in substance, quoting from well-considered cases, that great freedom is allowed to an attorney in the conduct of his client's cause; the range of discussion is wide. In his addresses to the jury he may discuss the facts proved or admitted and the inferences that may legitimately be drawn therefrom; arraign the conduct of the parties; impugn, excuse, justify, or condemn motives, so far as developed in the evidence; assail the credibility of the witnesses when impeached by direct evidence or by the inconsistency or incoherence of their testimony. He may give play to his wit and and wing to his imagination, so long as his argument is pertinent and within the record, but he takes the hazard of its not being so. Statements of facts not proved and comments thereon are outside of a cause. It is his duty to make the most of...