Wright v. Wells

• Decision Date: 04 May 1926
• Docket Number: No. 19408.,19408.
• Parties: WRIGHT v. WELLS.
• Court: Missouri Court of Appeals

284 S.W. 848

WRIGHT v. WELLS.

No. 19408.

St. Louis Court of Appeals. Missouri.

May 4, 1926.

Appeal from St. Louis Circuit Court, John W. McElhinney, Judge.

"Not to be officially published."

Suit by Emma Wright against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Austin E. Park, all of St. Louis, for appellant. Edwin Rosenthal, of St. Louis, and Joseph C. McAtee, of Clayton, for respondent.

BECKER, J.

This is a suit in damages brought under section 4217, Revised Statutes of Missouri 1919, for the death of plaintiffs husband who was struck and killed by one of the defendant's street cars which was traveling between the town of Kirkwood and the town of Ferguson in the county of St. Louis, Mo. The trial of the case resulted in a verdict and judgment in the sum of $2,000 in favor of plaintiff, and defendant in due course appeals.

As to the pleadings, it is sufficient to state that plaintiff's petition was based upon the humanitarian doctrine. The answer, besides a general denial, alleges that the injuries resulting in the death of plaintiff's husband were due to the carelessness and negligence of said husband, directly contributing thereto in that the deceased, at the time and place mentioned in plaintiff's petition, negligently and carelessly placed himself in such a position in the nighttime and during a snowstorm, between the rails of defendant's tracks, so that defendant's motorman in charge of defendant's car was unable to see said deceased in time to avoid striking him.

The sole assignment of error is that the trial court erred in overruling defendant's demurrers offered at the close of plaintiff's case and again at the erase of the whole case.

Appellant's contention here is that since, "to make a case under the last clear chance or humanitarian rule, the plaintiff's decedent must have been in a discoverable position of peril, and not alone that, but this position must have been discoverable at sufficient distance and length of time to have enabled the motorman operating the electric car, by the use of ordinary care, to stop the car before reaching the prostrate body of the deceased," that under the record before us there is no evidence in the case that plaintiff's decedent could have been seen by defendant's Operator of the car in time, by the exercise of ordinary care, to have prevented the unfortunate death of plaintiff's decedent.

We readily concede that the case is a close one. We have, however, come to the conclusion, after a careful consideration of the em" tire record, that plaintiff made out a case for the jury, and therefore the demurrer offered by the defendant at the close of the entire case was well ruled.

The record discloses that the appellant offered a demurrer at the close of plaintiff's case, but did not elect to stand upon its demurrer, but offered evidence in its own behalf. Thereafter, at the close of the entire case, appellant demurred again. In this situation a final demurrer searches all the testimony to see if plaintiff's case was not aided by defendant's proof. Stauffer v. Ry. Co., 243 Mo. loc. cit., 316, 147 S. W. 1032 ; Lorton v. Mo. Pac. Co., 306 Mo. 125, 267 S. W. 385. Therefore as Lamm, J., concisely and concretely put it:

"In this view of the case, any evidence offered by defendant running counter to plaintiff's has no office; because plaintiff, on demurrer, is entitled to have his evidence taken as true, to have the evidence of defendant, where contradicted, taken as untrue, and is entitled to every reasonable and favorable inference of fact naturally deducible from his own testimony or the uncontradicted testimony of defendant." Forbes v. Dunnavant, 198 Mo. 193, loc. cit. 199, 95 S. W. 934, 935.

Having this rule in mind, what then is plaintiff's case as it appears in the record before us?

It is conceded that the casualty occurred just before 6 p. m. January 15, 1924, on the private right of way of defendant company. The headlight of defendant's street car was burning, and a person on or adjacent to the tracks near the place of the accident, and facing toward the car, had an uninterrupted view of the headlight of the car for at least 150 feet. The place where the accident occurred was 10 feet from a trestle over a ravine and on embankments on which defendant's tracks were laid, and was about midway between what is known as Carson Road and Winton Stop ; the distance between Carson Road and Winton Stop being about 600 feet. Plaintiff's husband was struck and killed by defendant's car while he lay prone upon the ground and across one rail of the defendant's tracks in freshly fallen snow.

Plaintiff adduced two witnesses who saw her husband killed. Each of these witnesses lived immediately at or near the place of the accident, and both testified that the decedent was walking west along the east-bound track of the defendant and had crossed over the trestle on a board walk which was built between the rails of the east-bound and west-bound tracks, and had proceeded to a place about 10 feet west of the west end of the Said trestle when the deceased slipped and fell, falling across the west rail of the east-bound track in such a manner that his head and the trunk of his body lay to the north of the said rail and his legs to the south thereof, and that as plaintiff's husband was endeavoring to raise himself from that position an eastbound car of the defendant, going toward Ferguson, ran over the plaintiff's husband, severing both his legs, from which injuries he very shortly died.

One of these witnesses, Mrs. Mary Dunn, testified that she had lived six years on the south side of the defendant's tracks just east of the trestle in question, and that during all of the time she lived there pedestrians had been walking up and down the roadbed of defendant's tracks ; that she had seen people make use of the tracks in this manner every day during all the time she had lived there ; that on this particular evening she was standing near her rear door when she s...