Taylor v. Metropolitan Street Railway Co.

• Court: Missouri Supreme Court
• Writing for the Court: WILLIAMS, C. -- Per Curiam. -- The foregoing opinion of Williams, C., is adopted as the opinion of the court. Walker, P. J., and Brown and Faris, JJ., concur.
• Citation: Taylor v. Metropolitan Street Railway Co., 165 S.W. 327, 256 Mo. 191 (Mo. 1914)
• Decision Date: 24 March 1914
• Parties: JENNIE TAYLOR, Administratrix of the Estate of ALBERT P. TAYLOR, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

165 S.W. 327

256 Mo. 191

JENNIE TAYLOR, Administratrix of the Estate of ALBERT P. TAYLOR, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 24, 1914

Appeal from Jackson Circuit Court. -- Hon. W. O. Thomas, Judge.

Affirmed.

John H Lucas, Piatt & Lea and T. R. Marks for appellant.

(1) The petition charges last chance and excessive speed, repugnant causes of action. (a) The evidence fails to sustain either. Therefore, (b) objections to the evidence and (c) demurrers to the evidence should have been sustained. (a) Gabriel v. Railroad, 130 Mo.App. 651; Krehmeyer v. Transit Co., 220 Mo. 639; Grout v. Electric Ry., 125 Mo.App. 552; (b) Rinard v. Railroad, 164 Mo. 284; (c) Kinlen v. Railroad, 216 Mo. 158; Moore v Lindell Ry. Co., 176 Mo. 532; Wallack v. Transit Co., 123 Mo.App. 167; Guiney v. Electric Co., 167 Mo. 595; Mockowik v. Railroad, 196 Mo. 570; Gettys v. Transit Co., 103 Mo.App. 564; Hudson v. Railroad, 101 Mo. 13; Corcoran v. Railroad, 105 Mo. 399; Weller v. Railroad, 120 Mo. 635; Holland v. Railroad, 210 Mo. 350; Schmidt v Railroad 191 Mo. 215; Kenney v. Railroad, 105 Mo. 284; Laun v. Railroad, 216 Mo. 563; Holmes v. Railroad, 190 Mo. 105; Markowitz v. Railroad, 186 Mo. 359; Hogan v. Railroad, 150 Mo. 54; Reno v. Railroad, 180 Mo. 486; Eppstein v. Railroad, 197 Mo. 733; Van Bach v. Railroad, 171 Mo. 346; Boyd v. Railroad, 105 Mo. 381; Guyer v. Railroad, 174 Mo. 351; Roenfeldt v. Railroad, 180 Mo. 565; Porter v. Railroad, 199 Mo. 99. (2) The medical experts, over defendant's objection, were permitted to invade the province of the jury in answering improper hypothetical questions. This is error. Glasgow v. Railroad, 191 Mo. 347; Smart v. Kansas City, 208 Mo. 203; Sutter v. Kansas City, 138 Mo.App. 105; Baehr v. Casualty Co., 133 Mo.App. 541; Thomas v. Railroad, 125 Mo.App. 138. (3) Plaintiff's instruction one authorizes recovery under the humanitarian rule; No. 3 on account of excessive speed. Both are argumentative, illegal and inconsistent. Gabriel v. St. Ry., 130 Mo.App. 651; Krehmeyer v. Transit Co., 220 Mo. 639; Grout v. Electric Co., 125 Mo.App. 552; McKenna v. Railroad, 54 Mo.App. 161; White v. Railroad, 202 Mo. 555; Cytron v. Transit Co., 205 Mo. 716; Bunyan v. Railroad, 127 Mo. 18; Williams v. Railroad, 114 Mo.App. 8. (4) Defendant's refused instructions Nos. 4, 5, 7, 9, 10, 11, 12, 13 and 15 are proper under the evidence of plaintiff, the petition and the instructions given for plaintiff. Moore v. Lindell Ry. Co., 176 Mo. 532; Deane v. Transit Co., 192 Mo. 584; Mockowik v. Railroad, 196 Mo. 570; Wallack v. Transit Co., 123 Mo.App. 167; Tillman v. Transit Co., 102 Mo.App. 553; Allen v. Transit Co., 183 Mo. 424; Pim v. Transit Co., 108 Mo.App. 716; Ramp v. Railroad, 133 Mo.App. 703; Hebeler v. Railroad, 132 Mo.App. 551; Engelking v. Railroad, 187 Mo. 164; Collins v. Fillingham, 129 Mo.App. 344; Charleton v. Railroad, 200 Mo. 439; Van Dyke v. Railroad, 130 S.W. 8; Bunyan v. Ry. Co., 127 Mo. 18; Evans v. Railroad, 178 Mo. 517. (5) Plaintiff testified he saw the car approaching, knew the speed at which it was coming, knew he could avoid it in safety and made no effort so to do. The court erroneously refused to permit defendant to argue this evidence and made erroneous comments in the presence of the jury as to the legal effect of the same. Moore v. Lindell Ry. Co., 176 Mo. 532; Rose v. Kansas City, 125 Mo.App. 231. (6) Counsel for plaintiff, over defendant's objection, went outside of the record and was guilty of misconduct in final argument of the case. Stetzler v. Railroad, 210 Mo. 704; Rose v. Kansas City, 125 Mo.App. 231; Neff v. Cameron, 213 Mo. 369; Haynes v. Trenton, 108 Mo. 133; Tuck v. Traction Co., 140 Mo.App. 335; Eppstein v. Railroad, 197 Mo. 738. (7) Every action shall be prosecuted in the name of the real party in interest. R. S. 1909, sec. 1729. Albert P. Taylor did not enlist for the war but for first engagement only. As appears by the abstract of record in this cause he obtained judgment on the 28th day of October, 1909, against the defendant in the Circuit Court of Jackson County, Missouri, and thereafter on the 2nd day of November, 1909, made written conveyance of said judgment upon the margin of the record thereof, duly attested by the clerk of the court, said conveyance and attestation being in words and figures as follows, to-wit: "Kansas City, Missouri, Nov. 2, 1909. For value received, I hereby sell, assign and transfer this judgment to Charles E. Small. (Signed) Albert P. Taylor. Attest: Oscar Hochland, Clerk, By D. M. McClanahan, D.C." This assignment is in accordance with Sec. 2156, R. S. 1909, and as by said statute provided vests the legal title to such judgment and cause of action absolutely and wholly in Charles E. Small. Bank v. Bulkley, 68 Mo.App. 332. An assignment and transfer of the judgment in the foregoing manner transfers the cause of action to the assignee and vests in him the right to maintain all actions and proceedings therein and thereon in his own name. Bick v. Robbins, 131 Mo.App. 670; Secs. 2156, 2159, R. S. 1909.

Gage, Ladd & Small for respondent.

(1) Plaintiff's petition, which charges the negligence of defendant to consist of a negligently rapid rate of speed, of negligently failing to stop the car and of negligently permitting same to strike the wagon in which the plaintiff was riding, does not contain allegations that are contradictory or inconsistent. White v. Railroad, 202 Mo. 439. (2) Instructions 1 and 3 given for plaintiff follow the petition and are not inconsistent with each other and were properly given. White v. Railroad, 202 Mo 439; Shipley v. Railroad, 144 Mo.App. 7. (3) Defendant's contention that plaintiff's instruction No. 1 was erroneous, because it said nothing about regard for the safety of passengers and operatives in stopping the car, is without merit, because "ordinary care" necessarily includes such care as would be consistent with the safety of the passengers and operatives, and, furthermore, plaintiff's expert Hill's testimony was based on due regard to the safety of the passengers and operatives and the jury could not have been misled. Bunyan v. Railroad, 127 Mo. 12. (4) There was abundant evidence of defendant's negligence and that it caused the injury complained of. White v. Railroad, 202 Mo. 439; Shipley v. Railroad, 144 Mo.App. 7. (5) On the undisputed evidence of the defendant, it was guilty of negligence as a matter of law either in running too fast or stopping too slow, which was the proximate cause of plaintiff's injury. Shipley v. Railroad, 144 Mo.App. 7. (6) The negligence, if any, of Jaggard, the owner of the team, and of Ollie King, the driver, cannot be imputed to the plaintiff. Agnew v. Railroad, 125 Mo.App. 587; Zaloutchin v. Railroad, 127 Mo.App. 577. (7) Plaintiff himself was not guilty of contributory negligence as a matter of law. (8) Defendant having failed to stand on its demurrer to plaintiff's testimony, and having introduced evidence on its own behalf, the whole testimony, that of defendant as well as plaintiff, must be considered in determining whether plaintiff was guilty of contributory negligence as a matter of law. (9) The answer containing simply a general denial and no plea of contributory negligence, and the plaintiff on all the testimony not being guilty, as a matter of law, of contributory negligence, that issue could not be submitted to the jury and defendant's instructions referring to plaintiff's contributory negligence were properly refused. Collins v. Fillingham, 129 Mo.App. 340; Zaloutchin v. Railroad, 127 Mo.App. 577; Schullze v. Railroad, 32 Mo.App. 440; Brown v. Railroad, 31 Mo.App. 675; Thorpe v. Railroad, 89 Mo. 650; Petty v. Railroad, 88 Mo. 306; Craine v. Railroad, 87 Mo. 588; Taylor v. Railroad, 26 Mo.App. 336; St. Clair v. Railroad, 29 Mo.App. 76. (10) The driver's negligence, if any, not being imputable to the plaintiff and there being no contributory negligence in the case, the court had a right to so instruct the jury, as it did do at the end of plaintiff's first instruction. (11) There being no question of contributory negligence in the case, it is not necessary to invoke the so-called "humanitarian doctrine" to avoid the consequences of contributory negligence. The only question in the case is, was the defendant guilty of negligence causing or directly contributing to the injury? (12) But even if the plaintiff's case depended upon the humanitarian doctrine, it is settled in this court that such doctrine is not based upon and does not necessarily admit negligence on the part of the plaintiff, but is also applicable to cases where plaintiff is free from negligence, or what is the same thing, to cases where the plaintiff is not guilty of negligence as a matter of law, and there is no plea of contributory negligence. Shipley v. Railroad, 144 Mo.App. 7. (13) The objections to the answer of Dr. Stemen that he thought plaintiff's injuries were permanent will not avail defendant anything. 1st. Because there was no objection to the question and the answer was repeated at the request of the learned counsel for defendant. 2d. Because the answer related to a scientific fact to which experts are competent to testify. Koenig v. Railroad, 173 Mo. 698. (14) There is nothing in defendant's objection that the hypothetical question to Dr. Chambliss contained the word would as well as might and could cause, etc. The Supreme Court has expressly so ruled. Taylor v. Railroad, 185 Mo. 239. There is no other cause to which plaintiff's paralysis could be attributed, and therefore, if there had been any error in the question complained of it would have been harmless. (15) The learned counsel of defendant is in error when he complains of the argument of plaintiff's attorney. There...