Willi v. United Railways Company od St. Louis
| Decision Date | 14 July 1920 |
| Parties | EDWARD W. WILLI, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Benj. J. Klene, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Charles W. Bates, T. E. Francis, Alva W. Hurt and Chauncey H. Clarke attorneys for appellant.
The court erred in refusing to give to the jury the instruction in the nature of a demurrer to the evidence requested by defendant, for the reason that plaintiff made no showing entitling him to have the case submitted to the jury on any theory of pleaded negligence. (a) Plaintiff did not show that any of the alleged omissions of duty counted upon constituted the proximate cause of his injury for, the evidence showed he would have been injured by being crowded into the right front corner of the car by the pushing forward of the crowd toward the car, even had defendant not been guilty of negligence in the respect alleged. Battles v. United Rys Co., 178 Mo.App. 596, 614; King v. Wabash R C., 211 Mo. 1, 13; Winchell v. St. Paul City Ry. Co., 86 Minn. 445, 446, 90 N.W. 1050, 1051; State ex rel. National Newspaper Ass'n v. Ellison, 176 S.W. 11, 12; Jackson v. Butler, 249 Mo. 342, 366; McGee v. Wabash R. Co., 214 Mo. 530, 543. (b) At the very most, the evidence showed, plaintiff's injury might have resulted from one of two causes for one of which and not the other defendant was liable; and plaintiff made no showing of reasonable certainty that he was injured by defendant as the direct result of either of the alleged omissions of duty. Warner v. St. L. & Meramec R. Co., 178 Mo. 125, 133; Strother v. Chicago, B. & Q. R. Co., 188 S.W. 1102, 1105; Nevinger v. Haun, 197 Mo.App. 416, 427; Goransson v. Riter-Conley Mfg. Co., 186 Mo. 300; 307; Coin v. Talge Lounge Co., 222 Mo. 488, 508. (2) Plaintiff's instruction No. 1, which covered his case and directed a verdict, is erroneous for the following reasons: (a) It omitted the requirement that the jury find negligence on defendant's part. Hall v. Manufacturers' Coal & Coke Co., 260 Mo. 351, 367; Stone v. Hunt, 94 Mo. 475, 480; Utterback v. St. L. & S. F. Ry. Co., 189 S.W. 1171, 1173; Greenstein v. Christopher & Simpson Architectural Iron & Foundry Co., 178 S.W. 1179, 1183. (b) It assumes that the car was being operated at a "high and negligent" rate of speed, which was a disputed issue of fact in the case. Wease v. Fayette R. Plumb Tool Co., 187 Mo.App. 716 719; Dority v. St. L. etc. R. Co., 188 Mo.App. 365; 375; Ganey v. K. C., 259 Mo. 654, 663. (c) It required defendant, as a matter of law, to sound both the whistle and the gong, when it was a question for the jury to determine defendant was negligent if, when it sounded the whistle, it did not sound the gong. Turner v. K. C. & St. Joe etc. R. Co., 78 Mo. 578, 580; Burrows v. Likes, 180 Mo.App. 447, 454; Wingert v. Philadelphia & Reading Ry. Co., 262 Pa. 21, 23; Byrne v. N. Y. Central etc. R. Co., 104 N.Y. 362, 368; Van Patten v. Schenectady Ry. Co., 80 Hun (N. Y.) 494, 496. (d) It authorized the jury to find for plaintiff if they found that his personal injuries resulted from defendant's failure to stop the car at the station, when a failure to stop at the station could, in no event, be the proximate cause of such personal injuries, for the only damages that could proximately result from such failure to stop at the station would be damages resulting from the refusal to stop, which would consist of delay or loss of time. South Chicago City Ry. Co. v. Dufresne, 200 Ill. 456, 458; Gunn v. United Railways Co., 270 517, 528. (e) It consisted a roving commission to the jury to assess damages for whatever injuries they thought plaintiff had sustained. Jenkins v. Womack, 143 Mo.App. 410, 415; Allen v. St. L. Transit Co., 183 Mo. 411, 432. (f) It authorized the jury to find for plaintiff if they found that the motorman operated the car at such a high and negligent rate of speed that the motorman could not stop the car at the station after he saw, or by the exercise of ordinary care could have seen, plaintiff or other persons at said station who intended to board said car, when there was no evidence tending to show that such theory of negligence was the proximate cause of plaintiff's injury for, the evidence showed, he would have been injured by being crowded into the right front corner of the car by the pushing forward of the crowd toward the car, even had defendant not been guilty of negligence in the respect hypothesized. See authorities cited under point I. (g) It authorized the jury to find for plaintiff if they found defendant failed to sound a gong or whistle, when there was no showing made that such theory of negligence was the proximate cause of plaintiff's injury for, the evidence showed, he would have been injured by being crowded into the right front corner of the car by the pushing forward of the crowd toward the car, even had defendant not been guilty of negligence in the respect hypothesized. See authorities cited under point I. (h) It authorized the jury to find for plaintiff if they found defendant failed to provide a light at the station, or a headlight on the car, so that the motorman could see plaintiff or other persons at such station in time, by the exercise of ordinary care, to stop the car or check its speed in time to avoid injury to plaintiff, for the reason that no showing was made that such theory of negligence was the proximate cause of plaintiff's injury for, the evidence showed, he would have been injured by being crowded into the right front corner of the car by the pushing forward of the crowd toward the car, even had defendant not been guilty of negligence in the respect hypothesized. See authorities cited under point I. (3) The court erred in giving, on behalf of plaintiff, instruction No. 6, for the reason that it authorized the jury to assess damages for (a) loss of earnings, (b) inabiliy by plaintiff to earn a living, and (c) impairment of his earning capacity, thereby trebling his damages. Louisville & Nashville R. Co. v. Kirby, 173 Ky. 399, 405, 191 S.W. 113, 116.
Bartley & Douglass, for respondent.
(1) The court did not err in overruling the demurrer offered by the defendant at the close of plaintiff's case. (a) In passing on a demurrer to plaintiff's evidence, the court must consider the evidence introduced by plaintiff as true and make every finding and deduction in his favor which the jury would have been warranted in making. Meenach v Crawford, 187 S.W. (Mo. Sup. Ct.) 879, l. c. 882; Williams v. Railroad, 257 Mo. l. c. 112; Grouch v. Heffner, 184 Mo.App. 365, l. c. 372; Irwin v. United Rys. Co., 196 Mo. App., 666; Most v. Gobel Const. Co., 199 Mo.App. 336. (b) It is elementary in this state that a demurrer to the evidence admits as true every fact and inference that may be reasonably deducted therefrom. Strauchon v. St. Ry. Co., 232 Mo. 587, l. v. 595; Irwin v. United Rys. Co., 196 Mo.App. 666, l. c. 670, and citations; Parker-Washington Co. et al. v. James Dennison, 249 Mo. 499, l. c. 469; Geradi v. Gardner et al., 255 Mo. 538, l. c. 562-3; Clark v. Railroad, 234 Mo. 396, l. c. 280; Powers v. Transit Co., 202 Mo. 267, l. c. 280; Yost v. Cement Co., 191 Mo. App., 422, l. c. 432. (c) "Where defendant, in his demurrer to the evidence at the close of plaintiff's case was overruled, introduced evidence, the demurrer must be viewed in the light of all the evidence, although the demurrer should have been sustained as the case stood when the demurrer was transposed." Boeckmann v. Valier & Spies Milling Co., 199 S.W. 457. (2) It was negligence as a matter of law for the defendant to run its car past the station on a dark night without having a headlight on it or without sounding his whistle or gong. Buren v. St. Louis Transit Co., 104 Mo.App. 224, l. c. 231 (); Cotner v. Railroad Co., 220 Mo. 284, l. c. 311; Clover v. Railway Co., 140 Mo. App., 413, l. c. 194; Conrad Grocery Co. v. Railroad Co., 89 Mo. App., 391, l. c. 394-5; Becke v. Railway Co., 102 Mo. 544, beginning in third line from bottom of page 551; Kippenbrock v. Wabash Ry. Co., 270 Mo. 479, l. c. 484 and citations. (3) The plaintiff "was an invitee whose presence the operators of the car were bound to anticipate and for whose safety they were requred to exercise special care, and it was negligence for them to run the car past the station at a high rate of speed, without taking any precautions for the safety of such persons." Meierhoff v. United Railways Co., 186 Mo. App., 567. (4) "If upon a given state of facts negligence can be clearly asserted, then the court may so declare." Becke v. Railway Co., 102 Mo. 544, l. c. 551. (5) Plaintiff was not guilty of contributory negligence for "negligence is not imputable to a person for failing to look out for danger when under the surrounding circumstances, he had no reason to suspect any." Lagan v. Railway Co., 72 Mo. 392, l. c. 398; Hill v. Electric Light & Power Co., 260 Mo. 43, l. c. 912; Buesching v. Gas Light Co., 73 Mo. 219, l. c. 230; Crawford v. St. Louis Yards Co., 215 Mo. 394, l. c. 414, at top of page. (6) What is a negligent rate of speed depends upon the particular circumstances in each case. Van Natta v. Street Railway Electric Light and Power Co., 133 Mo. 13 (). (7) While plaintiff was at this station he had a right to assume that any car approaching this station would do so with a headlight burning and that the motorman would whistle or sound a gong, and that he would have the car under such control that he could stop at the station, and with safety to persons at the station waiting for a car. ...
To continue reading
Request your trial