White v. St. Louis & M. R. R. Co.

• Decision Date: 22 February 1907
• Citation: 101 S.W. 14,202 Mo. 539
• Court: Missouri Supreme Court
• Parties: WHITE v. ST. LOUIS & M. R. R. CO.

101 S.W. 14

202 Mo. 539

WHITE v. ST. LOUIS & M. R. R. CO.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. APPEAL—PRESERVATION OF GROUNDS—EXCEPTIONS —SCOPE.

Rev. St. 1899, §§ 599, 603, 612, 613, 619, 640, and 641 [Ann. St. 1906, pp. 627, 631, 644-646, 660, 661], contemplate that pleadings, demurrers, and motions of like character shall be in writing. Defendant moved in writing that plaintiff be required to elect as to which count of the petition he would proceed upon.

and the motion was overruled, and at a subsequent term on the trial he orally renewed the motion, which was overruled and exception taken. No exception to the ruling at the first term was preserved by a bill of exceptions. Held, that the ruling could not be reviewed on appeal, as the oral motion could not become a part of a bill of exceptions.

2. SAME—MOTIONS—STATEMENT OF GROUNDS.

Rev. St. 1899, § 640 [Ann. St. 1906, p. 660], provides that all motions shall be accompanied by a written specification of the reasons upon which they are founded, and no reason not so specified shall be urged in support of the motion. Held that, where defendant, in a motion to compel plaintiff to elect as to the count of the petition upon which he would rely, specified certain grounds of the motion, he could not be heard to rely on appeal upon any other ground.

3. PLEADING—PETITION—ELECTION BETWEEN COUNTS.

In an action against a street railroad for the death of plaintiff's intestate in a collision between his vehicle and a car, the gist of the specifications of negligence in the petition being that deceased was killed through defendant's fault in, first, running in excess of a speed ordinance, and, second, in not stopping the car when a stop was called for and could have been made, there was no such contradiction or inconsistency in the allegations as to require the granting of a motion to require plaintiff to elect as to the allegations on which she would rely.

4. SAME.

In an action for personal injuries, it is proper to rely in the same count on common law and statutory negligence, so long as the violated duties produce the one injury and the one damage constituting the subject-matter of the action.

5. APPEAL — HARMLESS ERROR — RULINGS ON PLEADINGS.

In an action against a street railroad for the death of one killed in a collision between his vehicle and a car, the petition counted on negligence in exceeding a speed ordinance, and in the violation of an ordinance requiring the operatives of a street car to keep a vigilant watch for vehicles and to stop the car in the shortest time and space possible on the first appearance of danger, and a motion to require plaintiff to elect as to which ground he would rely upon was overruled, but the theory as to the speed ordinance was eliminated from the case by the instructions. Held, that the vigilant watch ordinance being merely declarative of the common law, there was no error of which defendant could complain in denying the motion.

6. PLEADING—WAIVER OF OBJECTIONS.

Where defendant moved to compel plaintiff to elect as between the various grounds of negligence relied on in the petition, but on the overruling of the motion filed an answer and went to trial, there was a abandonment of the motion, the allegations of the petition not being so contradictory as to be self-destructive.

7. STREET RAILROADS — COLLISIONS — ACTION —QUESTIONS FOR JURY.

In an action for the death of one killed in a collision between his vehicle and defendant's street car, the question of negligence held for the jury.

8. SAME—CARE REQUIRED AS TO PERSONS ON TRACK.

Though one driving a vehicle placed himself in a position of peril on a street railroad track, the railroad was liable for his death in an ensuing collision, where the operatives of the car failed to exercise ordinary care to prevent injuring him, though the conduct of the operatives of the car was not characterized by willfulness, recklessness, or wantonness.

9. SAME—INSTRUCTIONS.

In an action for the death of one killed in a collision between his vehicle and a street car, the court instructed that if the motorman saw decedent on his wagon on the track or so near the same as to be in danger of injury, and could have stopped the car without injury to the same or its passengers, and by stopping the car within the shortest time and space possible under the circumstances could have avoided injury to decedent and neglected to do so, in consequence of which neglect to stop, decedent was killed, plaintiff was entitled to recover. Held, that the instruction was proper.

10. SAME.

It was proper to instruct that the negligence of decedent must have directly contributed to the collision, in order to bar plaintiff's recovery, and that though decedent was negligent in going on the track, still, if defendant by ordinary care could have stopped the car with safety to it and its passengers in time to prevent the collision after the motorman discovered decedent's peril, if he did discover it, and thereafter negligently failed to stop the car, whereby the collision ensued, plaintiff was entitled to recover.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Pauline White against the St. Louis & Meramec River Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Jefferson Chandler, T. M. Pierce, and S. P. McChesney, for appellant. James M. Rollins, J. A. Rollins, and J. L. Minnis, for respondent.

LAMM, J.

Pauline White is the widow of Edward White, who was killed while driving a loaded wagon at 5:30 o'clock p. m. on the 17th day of January, 1902, by a collision with one of defendant's street cars in the city of St. Louis. His widow sued and recovered $5,000 statutory damages. After the customary precedent steps, defendant appeals here.

Attending to the pleadings, plaintiff grounds her right of action on the following charges of negligence: First, that while her husband was lawfully driving a two-horse wagon loaded with lumber north on Twenty-First street, where it intersects Wash street, and when he was about in the middle of said intersection, the agents and employés of defendant in charge of a certain car going east on Wash street so negligently and carelessly ran, managed, and controlled said car as to cause it to run into and against said wagon, overturning the same, and so injuring her husband that he died as a result of the injuries sustained; second, for a further assignment of negligence it is alleged that defendant's said agents and employés failed to slow up said car as it approached said intersection, which negligence directly contributed to cause and did cause the injury and death of her husband; third, plaintiff then pleads an ordinance of St. Louis, known as the vigilant watch ordinance, requiring motormen and conductors to keep a vigilant watch for vehicles, either on the track or moving towards it, and to stop the car in the shortest time and space possible on the first appearance of danger to such vehicle, and avers its violation, for that the motorman and conductor of the car doing the injury negligently failed to stop said car within the shortest space and time possible upon the first appearance of danger to plaintiff's said husband, and plaintiff says such negligent violation of said ordinance directly contributed to cause and did cause his injury and death; fourth, and for a further assignment of negligence, plaintiff pleads the provisions of an ordinance regulating the speed of street cars in St. Louis at a maximum of eight miles per hour, that the provisions of said ordinance were negligently violated, and such violation of said speed ordinance directly contributed to cause and did cause the injury and death of plaintiff's said husband. The answer tendered the general issue, and pleaded facts which, if true, constituted contributory negligence on the part of deceased. The reply put in issue the new matter in the answer.

The case came on for trial in February, 1904. It seems the suit was brought prior to April, 1902, and that on the 9th day of April, 1902, defendant filed a motion requiring plaintiff to elect "upon which count of the petition she seeks to recover." Technically there was but one count in the petition, and the different elements constituting the negligence resulting in the death of Edward White were all set forth in that one. There seems to have been at least one prior trial, if not more; and we infer the motion to elect had been overruled at a prior term. It is not shown that any exception was saved to the first action of the court in overruling this motion; but when the final trial came on defendant's counsel undertook to orally "renew" the old motion to elect, and the record shows the court overruled it again, and defendant excepted. The old motion, so "renewed" orally at the trial, was as follows: "Now comes defendant in the above-entitled cause and moves the court to compel plaintiff to elect between the averment of her petition that the alleged injuries to Edward White were caused by the car being run at a rate of speed in excess of eight miles an hour, in violation of an alleged ordinance of the city of St. Louis, and that the alleged injuries to Edward White were caused by said alleged conduct, and the averment that said injuries were caused by the motorman and conductor failing to stop said car in the shortest time and space possible on the first appearance of danger, and for grounds of said motion assigns: (1) That said allegations are contradictory, inconsistent, and one destroys the other; (2) that even if the car was in fact going faster than eight miles an hour, and there was in fact an ordinance limiting the speed to eight miles an hour, still, if such rate of speed caused the alleged injuries, then they could not have been caused by the failure to stop the car in the shortest time and space possible at the first appearance of danger, and if on the first...