Yakoboski v. Wells.
| Citation | 253 S.W. 72 |
| Decision Date | 22 June 1923 |
| Docket Number | No. 17794.,17794. |
| Parties | YAKOBOSKI v. WELLS |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.
"Not to be officially published."
Action by Frank Yakoboski against Rolla Wells, as receiver of the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Chase Morsey, of St. Louis, for appellant. T. E. Francis and Ben T. Hardin, both of St. Louis, for respondent.
Plaintiff brought suit for damages for personal injuries alleged to have been sustained as the result of one of the defendants street cars negligently striking the rear end of a wagon being driven by him and throwing plaintiff from the seat in said wagon onto the street, thereby causing him to suffer injuries which are alleged to have been serious and permanent. The case was tried to the court and jury, resulting in a verdict for the defendant. From the resulting judgment, plaintiff appeals.
While plaintiff's petition sets up several assignments of negligence, the case, so far as plaintiff is concerned, was submitted solely upon an instruction predicated upon the humanitarian or last chance doctrine. At the request of the defendant, among other instructions the court gave two which were tantamount to a direction that, if the jury found plaintiff guilty of contributory negligence, their verdict must be in favor of the defendant.
That contributory negligence as such is not a defense to a plea of the humanitarian or last chance doctrine needs no citation of authority. The giving of the said two instructions at the request of the defendant was undoubtedly a matter of inadvertence, and being error clearly prejudicial to the rights of the plaintiff, it follows that the judgment should be reversed and the cause remanded.
It is so ordered.
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Barr v. Nafziger Baking Co.
... ... and the facts and circumstances in the case. Anderson v ... Davis, 314 Mo. 515; Gould v. Railroad Co., 315 ... Mo. 723; Zlotnikoff v. Wells, 220 Mo.App. 875. (c) ... The record does not show that the petition was read to the ... jury, and therefore it does not support the contention ... was any such, was no defense. Spindler v. Wells ... (Mo.), 276 S.W. 387; Brooks v. Menaugh (Mo.), ... 284 S.W. 803; Yakoboski v. Wells (Mo. App.), 253 ... S.W. 72. (3) The court did not err in giving Instruction 7 at ... the instance of appellant's codefendant Horton. (a) ... ...
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Phillips v. Henson
...if he was guilty of contributory negligence. Burke v. Pappas, 316 Mo. 1235, 293 S.W. 145; Spindler v. Wells, 276 S.W. 387; Yakoboski v. Wells, 253 S.W. 72; Jackson v. Railway Co., 232 S.W. 752; Nipper v. Railway Co., 145 Mo. App. 224. (6) Instruction 5 is erroneous and prejudicial, because ......
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Phillips v. Henson
... ... denied him a recovery if he was guilty of contributory ... negligence. Burke v. Pappas, 316 Mo. 1235, 293 S.W ... 145; Spindler v. Wells, 276 S.W. 387; Yakoboski ... v. Wells, 253 S.W. 72; Jackson v. Railway Co., ... 232 S.W. 752; Nipper v. Railway Co., 145 Mo.App ... 224 ... ...
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Cox v. Terminal Railroad Ass'n of St. Louis
... ... absolute defense to the action, are in direct conflict with ... and exclude a recovery on the humanitarian doctrine ... Spindler v. Wells, 276 S.W. 387; Schulz v ... Smercina, 1 S.W.2d 120; Ellis v. Met. St. Ry ... Co., 234 Mo. 681; Yakoboski v. Wells, 253 S.W ... 72. (a) The ... ...