Straub v. Laclede Gaslight Co.

• Decision Date: 22 May 1926
• Docket Number: No. 19443.,19443.
• Citation: 287 S.W. 1061
• Parties: STRAUB v. LACLEDE GASLIGHT CO.
• Court: Missouri Court of Appeals

287 S.W. 1061

STRAUB v. LACLEDE GASLIGHT CO.

No. 19443.

St. Louis Court of Appeals. Missouri.

May 22, 1926.

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

"Not to be officially published."

Action by William Straub, a minor, by Emma Hicks, next, friend, against the Laclede Gaslight Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Percy Werner, of St. Louis, for appellant. Fred Berthold, of St. Louis, for respondent.

DAUES, P. J.

This is an action by plaintiff, through his next friend, for damages for personal injuries, sustained while riding a bicycle, upon Rutger street, in the city of .St. Louis, by being run over by a mule and wagon belonging to the defendant company. There was a verdict and judgment for plaintiff for the sum of $2,100, from which defendant has appealed.

The petition contains the following specifications of negligence, first, negligent speed; second, negligent failure to warn; third, negligent failure to prevent the collision; and, fourth, the humanitarian doctrine.

The answer is a general denial, with a plea of contributory negligence, and charges that plaintiff was violating a city ordinance in driving his bicycle on a paved sidewalk when injured.

The reply is a general denial.

Appellant's assignments of error are, first, that the verdict has no substantial evidence to support it; second, that plaintiff was guilty of contributory negligence, as a matter of law; third, that the court erred in giving to the jury erroneous instructions on behalf of plaintiff; and, fourth, that the trial court erred in overruling defendant's motion for new trial.

Under the first assignment, a question arises at the very outset as to whether the point is properly before us, and we will dispose of that question before stating the facts.

At the close of plaintiff's case, the defendant offered an instruction in the nature of a demurrer to the evidence, to wit:

"Under the pleadings and evidence adduced by plaintiff, your verdict should be for the defendant."

The court refused this instruction; no objection was made, and no exceptions saved by defendant. At the close of the whole case, defendant again offered this instruction as to all the evidence. This instruction, likewise, was refused by the court, and no objections or exceptions saved, and the bill of exceptions shows none. Respondent insists that, therefore, we have nothing to review on that score, while appellant's position is that, in the motion for new trial, appellant complained of the action of the trial court in refusing to give such peremptory instruction, and that, therefore, the point is saved. Briefs of learned counsel do not aid us in this particular, but our investigation leads us to reported decisions which clarify the situation.

In the case of Harding v. Mo. Pac. a. Co., 232 Mo. 444, 134 S. W. 641, Ann. Cas. 1912 B, 1221, the Supreme Court, in banc, in an opinion written by Judge Graves, directly ruled that it is not necessary to both object to and except to the giving or refusing of an instruction, in order to have it reviewed on appeal. But, said the court in that case, while it is not necessary to both object and except to a ruling of the court on an instruction, it is sufficient if an exception is saved to such ruling.

"If counsel `at the time' excepts to the action of the court in giving or refusing an instruction, the trial court is apprised that error is to be charged thereon."

In the case of Tyon v. Wabash a. Co., 207 Mo. App. 322, 232 S. W. 786, this court held that an exception, in order to be reviewed on appeal, must be made at the time of the ruling complained of, and that such could not be obviated by a rule or custom of the trial court purporting to dispense with the necessity of timely saving exceptions to adverse rulings. After that opinion was handed down, a mandamus proceeding was brought in the Supreme Court to compel a circuit judge of the city of St. Louis to sign a bill of exceptions, where the exceptions were noted in the bill of exceptions by the reporter transcribing the testimony, under such rule of the circuit court, though no exceptions were actually taken at the time of the ruling of the court. See State ex rel. Brockman v. Miller (Mo. Sup.) 241 S. W. 920. The Supreme Court in that case reviewed the whole situation and held that the circuit court rule, by which all exceptions to adverse rulings to the court are considered saved, as a matter of course, all exceptions to be noted by the reporter transcribing the testimony and be inserted in the bill of exceptions, is not violative of section 1439, Revised Statutes Missouri 1919. While the court, in that case, liberalized the statute so that the necessity of actually taking the exceptions to the court's ruling on instructions may be waived by stipulation between the parties, with the consent of the court by a court rule, yet, nowhere in the opinion, does it appear that the bill of exceptions need not show that an exception was taken to such action of the court. On the contrary, the opinion makes it clear that there must be a notation in the bill of exceptions that such exception was saved before review can be had.

In the case of Hichwedel v. `Metropolitan Life Ins. Co., 216 Mo. App. 452, 270 S. W. 415, this court again had that question before it, and the Brockman and Tyon Cases, supra, were discussed. There the rule of the circuit court was that exceptions are to be considered waived unless taken at the time the adverse ruling is made, just the opposite to the rule of the circuit court in the Brockman Case. While we held that the exceptions to the ruling on instructions were not saved, yet we found that there were objections saved to the introduction of the testimony which reached the point, and we considered the matter from that standpoint.

From a review of these cases, it would appear clear, in the absence of any rule of the circuit court to the contrary, and in the absence of any agreement between counsel waiving same, that it is necessary that an exception must be saved at the time. In any event the bill of exceptions should show an exception to the court's action in overruling these instructions in the nature of demurrers, in order that same can be reviewed here. Notwithstanding that we have nothing properly here for review on this point, we have nevertheless examined the record to determine whether a prima facie case was made for the plaintiff, and we find that a case was made for the jury, and that the final demurrer to the evidence was properly overruled.

Plaintiff, a boy 16 years of age, testified that, in daylight, he was riding westwardly on Rutger street, a public street in this city, and, according to his testimony, was south of the north curbstone which divided the sidewalk from the street. He said he was riding a coaster brake bicycle, and that, as he approached the driveway out of a lot on the north side of the street, he slowed down and then discovered a running mule attached to a wagon, driven by defendant's agent, coming out of the lot, same being the plant of the defendant. He said he approached the driveway at about 10, or 15 miles an hour, and that the mule "dashed" out of the lot and struck and injured him; that he did not see the mule until he was right at...