Wyler v. Ratican

• Decision Date: 01 October 1910
• Citation: 150 Mo. App. 474,131 S.W. 155
• Parties: WYLER v. RATICAN.
• Court: Missouri Court of Appeals

131 S.W. 155

150 Mo. App. 474

WYLER v. RATICAN.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

Rehearing Denied October 24, 1910.

1. PLEADING (§ 418)—DEMURRER—WAIVER BY PLEADING OVER.

By answering over, defendant waived his right to a consideration of his demurrer to the complaint for not stating a cause of action.

2. PLEADING (§ 418)—DEMURRER—WAIVER.

Where a demurrer to the petition was waived by answering over, the sufficiency of the petition must be determined as though no demurrer was interposed.

3. PLEADING (§ 433)—PETITION—AIDER BY JUDGMENT.

A petition is sufficient, after verdict and judgment, if, after allowing all reasonable intendments in its favor, it notifies defendant

with reasonable certainty of the character of the action and issues.

4. NEGLIGENCE (§ 108)—ACTIONS—PETITIONS —SUFFICIENCY.

The petition in a negligence action is sufficient, if it describes the wrongful act complained of with reasonable certainty, so as to advise defendant of the charge, and alleges generally that the act was negligently done by defendant.

5. MUNICIPAL CORPORATIONS (§ 706)—USE OF STREETS — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

The petition alleged that plaintiff's mother was waiting in a public street to board a street car, when defendant's wagon was driven upon her at a high, dangerous, and negligent rate of speed, to wit, in excess of 10 miles an hour, and that defendant was at the time negligently racing with another wagon at a high and dangerous rate of speed of more than 10 miles an hour, and further alleged that as defendant's wagon approached near plaintiff's mother some one hallooed, which, because of want of time to reflect, caused her to step backward in front of the wagon so negligently running, whereby she was killed. Held, that the last averment did not show contributory negligence as a matter of law; that question being for the jury under the circumstances alleged.

6. PLEADING (§ 35)—ALLEGATIONS OF PETITION—SURPLUSAGE.

The averment that plaintiff's mother stepped backward, without time to reflect when warned, was surplusage, being a mere detail of the evidence.

7. NEGLIGENCE (§ 72)—ACTS IN EMERGENCIES.

The law does not require one suddenly placed in a position of great peril to exercise the degree of presence of mind which one of ordinary prudence might exercise in the absence of the danger.

8. MUNICIPAL CORPORATIONS (§ 705)—USE OF STREETS—RECKLESS DRIVING—NEGLIGENCE.

It is negligence to race a team on a street, at the rate of 10 or 12 miles an hour, in a large city.

9. MUNICIPAL CORPORATIONS (§ 705)—USE OF STREETS.

A pedestrian and one driving a wagon have equal rights to the use of the street, and each must exercise ordinary care to prevent injury.

10. MUNICIPAL CORPORATIONS (§ 706) — USE OF HIGHWAY—INJURIES—JURY QUESTION —NEGLIGENCE.

The questions of defendant's negligence and the injured person's contributory negligence in an action for injuries caused by a collision in a public highway are usually for the jury.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by Anna Lockwood Wyler, by her next friend, against William Ratican. From a judgment for plaintiff, defendant appeals. Affirmed.

Henry M. Walsh, Johnson, Rule & Allen, and Loomis C. Johnson, for appellant. F. W. Brooks and Richard F. Ralph, for respondent.

NORTONI, J.

This is a suit under the statute for damages alleged to have accrued to plaintiff, a minor child, on account of the wrongful death of her mother. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff's mother, with a companion, was in Morgan street, at the crossing of Twenty-Third street, both of which are public thoroughfares in St. Louis, awaiting the approach of a street car, when she was run upon and killed by defendant's wagon and team in charge of his servant. After necessary formal matters, the petition avers, substantially, that plaintiff's mother was in such public street, waiting to board an east-bound street car, when the wagon and team of defendant, in charge of his servant, was driven upon her at a high, dangerous, and negligent rate of speed, to wit, at a rate of speed in excess of 10 miles per hour, and that defendant's agent in charge of his wagon and animals aforesaid was at the time negligently racing with another wagon drawn by animals in the same direction on Morgan street at a high and dangerous rate of speed of more than 10 miles per hour. It is further averred that as defendant's wagon so negligently driven, and while racing at a high rate of speed, approached near to plaintiff's mother, some one hallooed a warning, which, because of the absence of time for reflection, occasioned plaintiff's mother to step backward in front of the team and wagon so negligently racing, whereby she was run upon and killed. There was a demurrer filed to the petition, which the court overruled. Defendant thereafter filed his answer, on which the case was tried.

It is argued, first, that the petition fails to state a cause of action, and the demurrer should have been sustained. On this question it is sufficient to say that, by answering over, defendant waived whatever rights he may have had with respect to further consideration of the demurrer on appeal. Ware v. Johnson, 55 Mo. 500; Spillane v. Missouri Pac. R. Co., 111 Mo. 555, 20 S. W. 293. The challenge of the petition by demurrer, having been...