Unterlachner v. Wells

• Citation: 296 S.W. 755,317 Mo. 181
• Decision Date: 24 May 1927
• Docket Number: 27662
• Parties: Alois Unterlachner v. Rolla Wells, Receiver of United Railways Company of St. Louis, Appellant
• Court: United States State Supreme Court of Missouri

296 S.W. 755

317 Mo. 181

Alois Unterlachner v. Rolla Wells, Receiver of United Railways Company of St. Louis, Appellant

No. 27662

Supreme Court of Missouri

May 24, 1927

Motion for Rehearing Denied June 25, 1927.

Appeal from Circuit Court of City of St. Louis; Hon. H. A Rosskopf, Judge.

Affirmed.

T. E Francis and Ernest A. Green for appellant.

(1) The trial court erred in refusing to give to the jury the peremptory instructions requested by the defendant, both at the close of the plaintiff's case and at the close of all the evidence, and in not peremptorily directing a verdict for the defendant. Under the evidence in the present record the respondent was guilty of contributory negligence, as a matter of law, and the trial court erred in not so instructing the jury. Unterlachner v. Wells, 278 S.W. 80; McConnell & Pilcher Ice & Fuel Co. v. United Railways, 238 S.W. 554; Voelker Products Co. v United Railways Co., 170 S.W. 333; Vandeventer v. Railroad, 177 S.W. 838; Paul v. Railroad, 152 Mo.App. 586; Green v. Railroad, 192 Mo. 131; Ross v. Wells, 255 S.W. 952; Schmidt v. Railroad, 191 Mo. 215; Burge v. Railroad, 244 Mo. 94; Mockowik v. Railroad, 196 Mo. 571; Gubernick v. United Railways, 217 S.W. 35; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 372; Huggart v. Mo. Pac. Ry. Co., 134 Mo. 673; Hayden v. Railroad Co., 124 Mo. 566; Sanguinett v. Railroad Co., 196 Mo. 466. (2) Plaintiff's Instruction 1 was error. (a) It should not have been given, because the plaintiff was guilty of contributory negligence, as a matter of law, and, therefore, the case should not have been submitted to the jury under the assignment of negligence based upon the alleged violation of the speed ordinance. Authorities supra; Gubernick v. United Railways Co., 217 S.W. 35; Costello v. United Railways Co., 213 S.W. 180; Voelker Products Co., v. United Railways Co., 170 S.W. 333. (b) Furthermore, the instruction is erroneous in that it did not require the jury to find that "at the time and place of the collision" the street car was being run at a rate of speed in excess of fifteen miles per hour; by this instruction the jury were erroneously told by the court that if the street car had been running at a rate of speed in excess of fifteen miles per hour a block or two, or even more, farther west, the defendant would still be liable. The instruction is, therefore, clearly erroneous. Battles v. United Railways Co., 161 S.W. 614; Stepp v. Ry. Co., 85 Mo. 233; Shunk v. Harvey, 223 S.W. 1069; Lackey v. United Railways Co., 288 Mo. 146. (3) Instruction 3, given to the jury at the request of the plaintiff, was erroneous. There was no evidence whatever in the record that the plaintiff knew of the existence of the speed ordinance, or that he relied upon the defendant's observance of same; therefore, the court erred in instructing the jury that the plaintiff had a right to rely upon the car not being run in excess of fifteen miles per hour. Voelker Products Co. v. United Railways Co., 170 S.W. 333; Mockowik v. Railroad Co., 196 Mo. 550, 94 S.W. 256; Paul v. United Railways Co., 152 Mo.App. 577, 134 S.W. 3; Paul v. United Railways Co., 160 Mo.App. 599, 140 S.W. 1196; Battles v. United Railways Co., 161 S.W. 614; Hall v. Railroad, 240 S.W. 175; Monroe v. Railroad, 297 Mo. 648. (4) The damages assessed by the jury are grossly excessive and the verdict is so excessive as to indicate that it was the result of passion and prejudice on the part of the jury, and for that reason should have been set aside and a new trial granted. Jones v. Ry. Co., 287 Mo. 78; Rigley v. Pryor, 233 S.W. 832; Neal v. Rys. Co., 229 S.W. 219; Corn v. Ry. Co., 228 S.W. 82; Lilly v. Rys. Co., 209 S.W. 973; Banks v. Morris, 257 S.W. 482; Corbett v. Rys. Co., 243 S.W. 902.

Douglass & Inman for respondent.

(1) The demurrer offered by defendant at the close of the case was properly overruled because: (a) The facts in evidence are the same at the former trial except they are strengthened by the evidence of the witness Walsh and plaintiff, and, therefore, the opinion in this case on the former appeal is binding on this court and settles the law of the case. Unterlachner v. Wells, 278 S.W. 79. (b) The plaintiff was not guilty of contributory negligence as a matter of law. Unterlachner v. Wells, 278 S.W. 79; Lackey v. United Rys. Co., 288 Mo. 128; McDonald v. United Rys. Co., 245 S.W. 559; Bosley v. Wells, 260 S.W. 125; Mason v. United Rys. Co., 246 S.W. 318; Alexander v. Traction Co., 249 S.W. 971. (c) If there are any discrepancies in the evidence, and especially that of plaintiff, the weight and credibility of this evidence was for the jury and not this court. Finnegan v. Railroad, 244 Mo. 653. (2) Instruction 1 is not erroneous as claimed by the defendant for (a) It is not necessary that the evidence show that plaintiff was familiar with the speed ordinance and relied on it being observed as claimed by defendant. Kinney v. Wells, 214 Mo.App. 79; Henderson v. Railroad, 248 S.W. 987, 284 S.W. 989; Swigart v. Lusk, 196 Mo.App. 471. (b) This instruction does require the jury to find that the violation of the speed ordinance was the proximate cause of the accident. Lackey v. United Rys. Co., 288 Mo. 120; Battles v. United Rys. Co., 178 Mo.App. 614; Schmidt v. Transit Co., 140 Mo.App. 187. (3) The verdict of the jury is not excessive for the injuries sustained by plaintiff as disclosed by the evidence. Heigold v. Railways Co., 308 Mo. 158; Woodley Petroleum Co. v. Willis, 290 S.W. 953.

OPINION

Graves, P. J.

This is a second appeal in this case. When first here (278 S.W. 79) the plaintiff appealed from a judgment against him. In that appeal, the only question was whether or not plaintiff was guilty of contributory negligence as a matter of law. While there were four grounds of negligence charged against the defendant, the plaintiff submitted the case then, as he did in the second trial, upon a violation of the speed ordinance. On the first appeal we ruled, (1) that the speed limit was fifteen miles per hour, and that there was evidence upon which the jury could find that the street car was running much in excess of such speed limit, i. e. thirty miles per hour, and (2) that the jury could well find that such excessive speed occasioned the injury to plaintiff. The issues were the same upon this trial as upon the previous one. Plaintiff submitted his case upon the single ground of negligence stated, supra, and defendant, after having, by instructions, withdrawn the other alleged grounds of negligence from the jury, pressed the alleged contributory negligence of the plaintiff, and in so doing say that the record evidence is different from that on the former trial. There is serious question as to whether or not defendant's Instruction 9 withdrawing the humanitarian rule would not have been error, had not plaintiff voluntarily abandoned that issue, by failing to submit it by instruction. At the second trial, involved in the record now before us, the plaintiff had a verdict for $ 17,500 and judgment was entered for said sum, from which defendant has appealed. When the case was first in this court (Unterlachner v. Wells, 278 S.W. 79) there was little dispute about the facts. At that time we then stated the case (278 S.W. l. c. 80, 81):

"Action for personal injuries. The plaintiff was struck and injured by an eastbound street car, operated and run by defendant upon Arsenal Street in the city of St. Louis. The accident occurred at the intersection of Arsenal Street and Macklind Avenue. With some slight modifications, the respondent agrees to appellant's statement of facts. In respondent's brief it is said:

"'The statement of facts contained in appellant's brief is a fairly correct abstract of the proceedings that were had before the trial court. We desire, however, to point out a few additional facts.'

"We shall not overlook these additional suggestions in the course of the opinion. The appellant's statement is as follows:

"'This is an action for damages which plaintiff claims he sustained on or about the 1st day of February, 1922, when he was struck by one of the defendant's cars and injured. The accident occurred at the intersection of Macklind Avenue and Arsenal Street. Arsenal Street is an east-and-west street in the city of St. Louis, about thirty-six feet wide, and Macklind Avenue is a north-and-south street about the same width. Macklind does not cross Arsenal Street, but extends from Arsenal Street north at 5400 west on Arsenal Street. The sanitarium grounds are on the south side of Arsenal Street, at the point opposite the intersection of Macklind. There are no car tracks on Macklind Avenue. At the time of the accident there was a store building on the northeast corner of this intersection, referred to in the evidence as the confectionary store, and a saloon building on the northwest corner. Westbound cars run on the north track, and eastbound cars on the south track. From the north curb line of Arsenal to the first rail of the westbound track is ten feet and six inches and to the first rail of the eastbound track from the north curb line is twenty feet and eight inches. At the time of the accident, westbound cars stopped at the northeast corner (that is, the near side), and eastbound cars stopped with the front of the car about even with the west curb line of Macklind, or what would be the near side if Macklind crossed Arsenal. After the accident, the eastbound cars changed the stopping place to the east side of Macklind and stopped with the front end about even with the east building line of Macklind Avenue if extended across Arsenal at a yellow pole on the south side of Arsenal, about even with the east building line of Macklind. There is a slight up-grade on Macklind west, of about three feet to the hundred...