Taylor v. Grand Avenue Railway Company

• Decision Date: 09 February 1897
• Citation: 39 S.W. 88,137 Mo. 363
• Parties: Taylor et al. v. Grand Avenue Railway Company et al., Appellant
• Court: Missouri Supreme Court

39 S.W. 88

137 Mo. 363

Taylor et al. v. Grand Avenue Railway Company et al., Appellant

Supreme Court of Missouri, First Division

February 9, 1897

Appeal from Jackson Circuit Court. -- S.W. Moore, Esq., Special Judge.

Affirmed.

Karnes Holmes & Krauthoff for appellant.

(1) The sixth instruction given at request of defendant is a proper declaration of the law applicable to this case. The breach of duty, upon which an action is brought, must be not only the cause but the proximate cause of the damage to plaintiff. 1 Shear. & Redf. Neg., sec. 26. "The fact that the company has been guilty of negligence, followed by an injury, does not make the company liable unless the injury was occasioned by that negligence. The connection of cause and effect must be established." Harlan v. Railroad, 65 Mo. 22; Stanley v. Railroad, 114 Mo. 606. "And such negligence must be the proximate cause of the injury." Stepp v. Railroad, 85 Mo. 229; Hicks v Railroad, 46 Mo.App. 304. A proximate cause is one "which in a natural and continuous sequence, unbroken by any new responsible cause," produces the result. Stanley v. Railroad, 114 Mo. 606. This (sixth) instruction simply says that if the proximate cause of plaintiff's injuries was the negligence of the Northeast company, the Grand Avenue company was not liable. (2) Mrs Taylor, "being a party to the suit, is conclusively bound by every declaration and admission against her interest made while testifying before the court and jury." Payne v. Railroad, 30 S.W. 148; State v. Brooks, 99 Mo. 137. (3) It thus appearing from plaintiff's own testimony that the Grand Avenue company was not in fault, a verdict in favor of that company was right, and the question of instructions becomes immaterial. "If the judgment is for the right party upon the undisputed or admitted facts in the trial court, that court should not disturb the verdict and judgment thereon." Homuth v. Railroad, 129 Mo. 629. (4) The trial court did not err in the matter of giving instructions and the order sustaining the motion for a new trial should be reversed and the cause remanded with directions to enter judgment in accordance with the verdict.

L. H. Waters for respondents.

Robinson, J. Macfarlane, J., and Brace, J., concur. Barclay, P. J., concurs in affirming.

OPINION

Robinson, J.

This is an action by Augusta Taylor and her husband for damages for injuries resulting to the wife while a passenger upon one of the cars of the Northeast Street Railway Company of Kansas City.

The defendants are the Grand Avenue Railway Company and the Northeast Railway Company, each operating a street railway in Kansas City. The Grand Avenue Company operates a cable, and the Northeast company an electric street railway, crossing each other at the intersection of Fifth and Walnut streets in said city; the Grand Avenue Company at that point running north and south and the Northeast company running east and west.

The petition charges that the defendants "maintained at said crossing a watchman, whose duty it then and there was to signal the employees of the defendants in charge of the cars of the defendants as the said cars approached the said crossing of the said tracks at the intersection of said Walnut and Fifth streets, and thereby inform said employees when the cars under their control might or should cross over the said crossing, and thereby prevent the cars of the defendants from colliding at said crossing."

After alleging the manner of Mrs. Taylor's injuries and the nature and extent of her suffering, the petition states further: "That said collision was the result of and was caused by the negligence of the said switchman, who then and there failed and neglected to give the respective employees in charge of the said cars, as they approached said crossing, such warning and signals as would have then and there enabled said employees, by the use of ordinary care and caution on their part, to have avoided said collision; and by the negligence of the employees of said defendants in charge of said cars which collided as aforesaid in running, managing, and conducting the said cars under their respective control in a negligent manner." Record, 2, 3.

The answer of the Northeast company was a general denial and a plea of contributory negligence on the part of Mrs. Taylor. The Grand Avenue Company filed a general denial.

The plaintiff, Augusta Taylor, was a passenger on a west bound car of the defendant, the Northeast Railway Company, and was knocked to the floor of the car and injured by reason of the car in which she was riding colliding with and running against a north bound car running on the tracks of the Grand Avenue Company, at the intersection of Fifth and Walnut streets, where the two street car tracks cross each other.

The case was tried by a jury and resulted in a verdict in favor of the defendant, the Grand Avenue Company, and against the defendant, the Northeast Railway Company.

The plaintiffs and the Northeast Railway Company both filed motions for a new trial, and both motions were sustained with the following reason assigned therefor by the trial court:

"Plaintiff's motion sustained on account of error in instruction numbered 6, given at the request of the defendant, the Grand Avenue Company. The motion of the Northeast Railway Company sustained on account of error in instruction number 1, given at the request of the defendant, the Grand Avenue Company."

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