*1 149 TERM, 1922. Louis. R. of St. v. TJ. Co. McDonald judgment that the recommends The Commissioner he reversed. opinion foregoing
PER CURIAM: The Nipper, judgment adopted opinion C., is court. accordingly Allen, P. reversed. of the circuit court is J., JJ., Becker and concur. Danes, Respondent,
FRANKLIN P. v. UNITED McDONALD, Appel LOUIS, RAILWAYS COMPANY OF ST. lant. Appeals. Opinion June
St. Louis Court of Filed Crossing Negligence: Driver Tracks: Con- 1. STREET RAILROADS: tributory Negligence: Jury. Question ac- for the In an Evidence: damages growing against company a of a tion street for out crossing, plain- shows that collision a street where the evidence attempted tiff, wagon, driving a horse the car tracks to cross coming after had about looked and saw street approaching people away crossing it was a and knew that where indicating standing apparently position they in- in a . were ear, passengers such facts and circum- become on the to tended determining taken into consideration in be stances should contributory negligence, plaintiff’s and, question when this is contributory guilty neg- done, plaintiff declared not be should ligence law. matter of as a Demurrer Evidence: PRACTICE: Verdict for APPELLATE 2. Appeal Most Evidence: Viewed Favorable to Plaintiff. Plaintiff: evidence, upon appeal passing a demurrer to On light verdict must be viewed in the most favorable after evidence plaintiff. Negligence: Vigilant Ordinance: RAILROADS: Watch STREET 3. Question Jury. plain- Rule: Evidence: for the Where Humanitarian injured by being struck one of defendant’s street cars tiff crossing, justify reviewed and re- evidence held to at withdraw from trial the consideration of the court fusal of jury respect vigilant alleged acts with the humanitarian rule. ordinance watch Defining None Asked for Plaintiff: Issues: INSTRUCTIONS: Per- plaintiff, per- Commendable.' Not While an action missible: APPEAL MISSOURI REPORTS, of St. Louis. McDonald TJ. Co. injuries, submitting sonal case to the took chances in prac- offering issues, defining it is
without instructions right yet plaintiff commendable, to take such tice not had *2 any chances, offering desired, if case without he so submit his and , instructions. Assignments Jury —--: -: All 5. Plaintiff Entitled to Go 6n Negligence: Damages of Instruction on of Not Measure Erroneous. injuries alleged damages personal In for an action for to have by being by plaintiff been sustained struck one of defendant’s crossing, plaintiff, given by street cars an instruction for at a the damages, permitting to the court its motion as measure of own of directing jury the “all the facts and to consider circumstances arriving verdict, their in at not in evidence” held reversible er- > plaintiff go in of the fact was entitled ror view to the assignments negligence jury petition. of in the on all from, Appeal City of Court of Circuit Judge. Hugo
—Hon. J. Grimm, Affirmed. Higgs T. Bates,
Charles W. E. Francis Vance J. appellant. for
(1) refusing give The court erred requested instruction to for defend- find ant at the of case close at close whole for the reason that case, was not entitled any theory recover on under counted petition, (a) not his Plaintiff entitled to re- Burge cover under the Last Doctrine. v. Chance Railroad, Quinley Springfield 76; 244Mo. Traction v. 165 Co., Fleming 263Mo. 346; Railroad, 180; v. Keele v. Railroad, App. 258Mo. 152Mo. 62; Railroad, Paul v. 577; Zurfluh v. Peoples App. Railway 46 Mo. Co., 636; Baecker v. Rail- 507; 240 Mo. Hamilton road, v. 250 Railroad, Mo. 714; 530; McGee v. 214 Mo. Roenfeldt v. Railroad, Railroad, (b) 554; 180 Mo. not entitled to Plaintiff was recover un- Vigilant der the "Watch Ordinance. Gubernick v. United Rys. (c) 217 33. 1. Co., W. Plaintiff was not S. entitled specification negligence charging to recover under the (cid:127) TERM,
McDonald v. U. R. Co. of St. Louis. plain- operating collided the car which with with v. an hour. tiff in of fifteen miles Alexander excess Ry. King 49; Railways 233 S. W. v. Wabash Pryor, 1121; Battles 13; 211 Mo. Burton v. 198 S. W. App. 615; Railroad, v. 178 Mo. v. Schmidt Railroad, Rail- 131; Mo. v. 192 Mo. Lann v. 215; Green Railroad, Burge Railway, Mo. 563; 544; v. 216 Mo. Moore road, Railway, Railway, Mo. 76; 244 Mo. v. Jackson 635. 2. evidence Railroad, Weller v. operated plaintiff, tending to show that the car was thirty-five did warrant at a hour, miles recovery by plaintiff, derelic- a reason proximate tion proximate not the cause collision, being collision act of cause of said looking, driving wagon dray on without track, said approaching track he knew car was said when *3 thirty-five Railway _speed Co., an hour. v. miles Moore App. 614; Mo. Battles v. 544; Railroad, 176 Mo. 178 App. King Rail- 182; Mo. Schmidt v. 140 v. Co., Transit 211 Mr. Kel- 1; 125; road, Railroad, Warner v. 178 Mo. proximately ley Negligence not Mo. 138. Railroad, v. 75 injury compained causing actionable. not State is 11; v. 249 ex rel. 176 S. Ellison, Butler, v. W. Jackson (d) contributory negligence Mo. 342. The theory recovery by plaintiff every pri- bars a under Reynolds, mary negligence. S. State ex rel. v. 233 W. Railway 233 S. W. 219; Evans v. Illinois Central Co., (Mo. Sup.), 44; 233 S. 397; Railroad, v. Alexander W. Burge 244 v. Railroad, v. Mo. 75. Gubernick Railroad, y 18 McCreery 217 221 Owens 33; Railroad, S. W. v. Mo. Sanguinette App. 450; Railroad, v. 188 Mo. v. Railroad, Hayden Hag- v. Mo. 566; 124 466; 196 Mo. Railroad, Kelsay gart 673;’ 134 Mo. v. Railroad, v. 129 Railroad, W, v. Voelker 362; Railroad, 179; Mo. Costello 213 S. (2) App. In- Products Co. v. Mo. Railroad, 185 eight in that it struction number is erroneous directed jury facts in evi- to consider all the and circumstances arriving Boyd Co., v. Transit dence its verdict. App. Railway 1145; 92 303; 108 Mo. Kohr S. W. Co., v. 152 211 MISSOURI APPEAL REPORTS,
McDonald v. U.
Co. of
(3)
Allen v.
Mo. 411.
Co.,
Transit
183
court erred
refusing
give
jury
requested by
I),
instruction
entitled
recover under
defendant, the Last Chance Doctrine. Alexander v.
233
Railroad,
(Mo. Sup.)
Springfield
44; Quinlev
S. W.
v.
Traction
Burge
Co.,
346;
76;
165
244
v.
Mo.
Flem-
Railroad,
ing
Railroad,
v.
Mo.
Railroad,
180;
263 Mo.
Keele v.
258
App.
Zurfluh
577;
Mo.
62; Paul v.
152
v.
Railroad,
Peoples Railway
App.
46
Baecker
Co.,
636;
Mo.
v. Rail-
507;
240 Mo.
Hamilton
road,
714;
250 Mo.
Railroad,
v.
Railroad,
530;
McGee v.
214 Mo.
Roenfeldt v. Railroad,
Ey.
(5)
Fed. 525.
Kroloff,
Co.
217
The
v.
court erred
give
refusing
jury
in
re-
instructions A and B,
quested by
withdrawing assignments
neg-
defendant,
ligence
on the common
based
law and
under
ordinance
Louis,
City
(a)
of the
of St.
before
Plaintiff,
danger
approach
into the
zone, saw the
of the ear and was
cognizant
operated
being
that the same
fact
speed
at a
in
rate
far
excess of fifteen miles an hour.
King
Alexander v.
Ey.
33
Eailroad,
49;
S. W.
v. Wabash
Pryor,
13;
211 Mo.
Burton v.
1121;
198 S. W.
App.
Battles v.
Mo.
178
Eail-
Eailroad,
615; Schmidt v.
191 Mo.
road,
215; Green v.
Bass I. Joel Wilson for (1) overruling The court err did the demur- rer offered the defendant at the close *5 REPORTS, 154 211 APPEAL MISSOURI St. R. Louis. v. TJ. Co. of McDonald case, passing (a) to evi- demurrer on a In introduced the evidence consider dence the court must every finding deduction by plaintiff as true and make jury-would have been warranted in his favor which City making. Railway v. Southern Williams Kansas Metropolitan Rail- v. Street 87;Mo. Strauchon Co., 257 Railways way 196 Co., 587; 232 Mo. Irvin v. United Co., Railway App. Louis & 666; Mo. Clark v. Suburban St. (b) a trite doctrine “It is 396. .in Co., 234 Mo. passing the evidence evidence must on demurrer to giv- light plaintiff, favorable to most viewed lie every ing inference to favorable him hita benefit reasonably may fairly therefrom. drawn be respect to If for reasonable men with there is room differ jury.” v. is one Yost evidence, case App. 422; Mo. Powers Co., 191 Atlas Portland Cement Orongo Morgan 267; v. Circle Co., v. Transit 202 Mo. App. Riley O’Kelly, Mining 99; Mo. v. 250.Mo. Co., 160 Spies Milling 199 Co., v. & S. W. 647; Boecknaann Valier Young, (d) 869. Plaintiff 220 457; Cowan v. Doctrine, (e) under the Last Chance entitled to recover actually stopped the wagon, ran and The distance after testimony, shown evi- it is struck tending distance could have what been dence show stopped of this so as to case, under circumstances Beir Louis Transit the collision. v. St. have averted Metropolitan Railway, 215; Mo. Ellis v. Street Co., 197 Metropolitan Ry. v. St. Petrie 177 657; 234 Co., Mo. (f) App. “The if a law is that motorman Mo. 359. engineer that he could not drives his car at such might sight crossing- stop of one who be it if he came in showing- he cannot himself his track, over the excuse stop by inability the utmost after he see effort did being being his unable The reason him. his inexcusable before he- came about Railway City 149 v. Elevated Co., saw him. Williams Ry. Depot App. Koenig- v. Union 173 Mo. 489; Co., Mo. Ry. Moore v. Co., 678; v. Mo. Klockenbrink 698; Epstein Ry. 1; Co., Transit Mo. Louis St.
»
(cid:127) TERM,
McDonald v. U. Co. of Ry. App. 720; Murrell v. Mo. Ab- *6 Ry. App. (g) bott v. Co., 121 582. Mo. Plaintiff vigilant entitled to recover under the watch ordinance contributory negligence imputable person is not to a danger failing to look out for when under surround- ing suspect any. no circumstances he reason to Lan- has gan Railway Light v. Co., 392; 72 Mo. Hill v. Electric Buesching & Light Power Co., 43; 260 Mo. v. Co., Gas 219; 73 Mo. Crawford v. St. Louis Mo. Yards Co., 215 (h) 394. specification Plaintiff was entitled to recover under “negligence” charging
of defendant with operating plaintiff the car which collided with run- with ning though in excess of fifteen even an hour miles judgment attempting committed an- error of Railway to cross the track. Irwin v. United Mo. Co., 196 App. King City Rys. 666; v. Kansas 204 Co., 1129; S. W. App. Heintz 115 v. St. Louis Transit Mo. Co., 667; Murray App. St. 501; v. Transit Co., Louis Metropolitan Railway Strauchon v. Street Mo. Co., 232 part 587. The evidence of show tended to on operated speed of the car defendant was at a rate of twenty-five thirty-five miles hour. This negligence per Co., se. Heintz v. Louis 115 St. Transit Metropolitan App. 667; Mo. v. Strauchon Rail- Street way Mo. 587; 232 Moritz Co., v. Louis St. Transit Co., App. (i) negli- contributory 102 657. It Mo. was not gence part crossing intervening of on space between east of side Union avenue and the upon funning
tracks which the car rate of by thirty-five him been to have believed miles an hour. primary negligence. This was not Howard v. Scarrit Es- tate Mo. Link, 267 Moffatt 229 Co., 836; v. Alyea Junge Baking- (j) personal v. S. 341.W. In injury say cases unless this court can a matter law prudent reasonably plaintiff' no have man woiild done as question negli- then contributory did, gence Alyea jury. Junge Baking for the. is (2) give S. The refusal of in- W. court to prayed structions for, defendant, was error. APPEAL REPORTS, MISSOURI v. U. R. Go. of St. Louis.
McDonald points given by tbe instructions re- covered at the were giving quest no there was warrant them the evidence. under damages alleged is an action for
NIPPER, C. This by plaintiff by being struck been sustained one have p. m., five and six cars, between defendant’s street operated January being 1918. The car was over city in the tracks on St. avenue, Union defendant’s judgment and de- for $3000, Louis. Plaintiff recovered appeals. fendant assignments out set were four
There petition: in the Negligently running operating
First. *7 dangerous speed. negligent, rate of car at a and careless, Negligent operation oar of the street Second. of a certain hour, of fifteen miles violation excess an city of the of St. Louis. ordinance keep vigilant Negligent watch, to a Third. failure by stop required in the short- to the car ordinance, and as appearance space possible upon the first of est-time and danger. Negligent or the car slacken
Fourth. failure speed knew, motorman when defendant’s thereof, ordinary by care could known, the exercise of have position condition where he was a and injured. likely to be coupled general awith denial, was a The answer negligence. plea contributory of general reply a denial. defendant offered ease, At the close then in- overruled. Defendant a which was demurrer, again at demurrer its a evidence, troduced and offered also overruled. case, close of the whole which was plaintiff, by offered and were No instructions only instruction on instruction by given damages of own the court its motion. measure wagon driving dray north a one-horse Plaintiff was de- over on side of Union avenue, the east TEEM, OCTOBEOR
McDonald v. R.U. Co. St. Louis. railway. parallel fendant maintains two tracks of its The easternmost track was the northbound over track, which cars were north. operated The track just to the on the west of this same was the south- over street car track, bound" which defendant’s was being operated at the time the collision. The accident oc- curred at a on where it is intersected point Union avenue avenue from the Ashland west. avenue Ashland does continuing cross Union avenue, and there is no street east on side of point. Union at this the east avenue direct examination stated,
On testified, that he was north on Union traveling avenue, driving at dray wagon, this one-horse Union point said avenue somewhere center between the and east curb. he point immediately When reached a east Ashland feet north avenue, few south curb line Ashland he toward the turned his horse avenue, west eastern drive across defendant’s street car tracks to the to terminus of Ashland avenue. started to turn When Ashland avenue, says ward he looked the.north six street car feet coming.about saw the hundred rate of estimated speed and at a him to be away, hour. thirty-five miles an He that he had operat testified cars, ed street knew rate of which this r car was coming. It appears of other testimony witnesses, that from as well as plaintiff, thirty twenty north *8 avenues, the northwest corner of Ashland and Union two or three on parties there were the street at standing a. where the street car take on point stop would to pas- It that car appears, stop the did not sengers. however, in that and fact it point, stopped at was from the it he time saw until after was struck. plaintiff south- over plaintiff’s When horse'had the crossed the track, wagon plaintiff bound and while on was which track, on said the street car the was struck riding wagon, the the loose breaking shafts, same knocking feet to plaintiff some the south horse, throwing and fifty that he struck the No is made ground. point before here APPEAL MISSOURI REPORTS, Co, of St. Louis. U. McDonald injuries, is or that the receive verdict did not unnecessary anywise It becomes therefore excessive. respect injuries. testimony to his out with set the the car six hundred that was Plaintiff said when crossing away, the street at the feet the was act time. point which is an incline at
There the Bridge Natural he first the car near road', said saw point struck, which Ashland at was avenue-—the higher plaintiff stating at it feet that about seven was Bridge the than being avenue at where Natural road Ashland grade up from Ashland avenue occurred, collision placed Bridge the road. Other witnesses to Natural degrees. There was on incline at fifteen snow the partly ground had become time, at the melted. plaintiff, for witness Punshon, Robert testified question riding on the near front street car the immediately car behind motorman end of the at car accident. He fixes the the time of the thirty per the incline hour, at miles from Natural degrees. Bridge at He fifteen road Ashland avenue Bridge says its Natural after the car left on road journey turned the motorman around toward southward, parties standing were on the him he neared who as exclaimed: corner, street ’ ‘‘ ’ thirty stop hour; I can’t I am here. miles made the motorman this exclamation, At the time seventy-five street, evidently or one feet hundred point collision occurred. fixed where the He north of the stopped point the car at one feet where hundred avenue. This witness first Ashland saw south of wagón passing people standing says the motorman made no effort on street. .He just wag- as it collided the car until with on. plaintiff, another Bretz, M. witness testi-
John the street car the time ac- he was fied that sitting car, near front end of the and about cident, directly behind- the motorman. He fixed four *9 TERM, McDonald v. U. R. St. Co. of Louis. speed twenty-five
rate at car at miles an hour better.” he “or He testified that when plaintiff saw approximately tnm across avenue, to Ashland car was north;
two hundred feet noticed that he people twenty thirty on the or north curb feet step approached; Ashland avenue out the car as it toward that “very the surface was covered with snow and slick.” says immediately prior He that to the time the car struck wagon, through many the motorman went 'motions, putting says emergencies, shutting on off the air. He get stopped the motorman did not the car until it hundred or one hundred past two feet he had where wagon. struck the This witness also fixes the at incline degrees Bridge fifteen from Natural to Ashland road avenue. On that about the cross-examination, stated time he first saw turn cross two the track, away, began hundred applying feet the motorman shutting brakes and off He later corrected this the.air. only twenty-five statement and said the motorman was thirty away began when he to use appliances the car.
Plaintiff in evidence certain offered ordinances pleaded city petition. of St. Louis which were in the Joseph at Schwent, who was conductor the car time of the the' on behalf collision, testified de- very fendant slippery that the rails were on the occasion traveling accident, about fourteen miles an hour. He did not before see he was struck. Roy,
F. L. another testified witness that he was on the car at the time He of the collision. speed traveling fixed the at which the car was at about says fourteen miles an hour. noticed the He wagon, slacken its before it hit the wagon going “mighty time struck the it was slow.” separate Defendant offered withdrawal instructions, withdrawing each and .consideration every assignment petition. giving Defendant contends that the in not court erred APPEAL REPORTS, 211 MISSOURI McDonald v. U. Co. of *10 its in not sustaining and instructions, these withdrawal that the it contended being the evidence, its demurrer to of proximate the cause not be speed of the car could to was not entitled that plaintiff and plaintiff’s injury, vigi- or the doctrine, recover under the humanitarian to no evidence lant watch there was ordinance, because been stopped have in distance car could show what peril, into of where he position after came a plaintiff have been care could ordinary the exercise of seen, motorman. seen defendant’s
I. negligent observation first to our Addressing it of the the-proximate injury, as cause speed car his all testimony plaintiff of and apparent is of at a rate operated that was being car witnesses, permitted is and speed by ordinance, twice as fast as likely a and vehicles are pedestrians populous where city plaintiff if at Even crossing. to be crossing any knew the he rate coming, though even did see the and of at it was he knew that speed traveling, .it stand people where three were a crossing approaching intend that they a position indicating ing apparently cir under such ear, ed to become on this and passengers have inferred that plaintiff might cumstances heedlessly not dash on and stop, recklessly, would and use of rights total others disregard of right no him. it is had injure Plaintiff, true, and streets, operated that at the fact car was rely upon being because he knew rate of within the'ordinance, knew it operated, that facts, being hour; but he have at miles an could states, thirty-five it reasonable inference that he and would be a assumed, it would when it Ash- approached did that assume, wait on, parties land take as passengers, avenue to assumption that until such upon act there, ing it was not when stop, time as he perceived late. Rys. it was too v. United appears- [Lackey c. Mason v. 956, l. Rys. United TERM, McDonald v. U. Co. (decided by Supreme
Co. our Court not but 16th, June yet officially reported.] When saw the car says away, it was 600 feet under the of this facts charged, case he cannot be edge as matter with knowl- law, stop. that the car would not These facts and cir- cumstances should be taken consideration in into deter- mining question contributory negli- gence, when and, we think done, is do guilty contributory negligence should be declared aas matter law. Railways supra,
In Mason v. United evi persons dence disclosed that saw a street *11 point passengers corner at a board cars. The where the stop, injured plain past car not but continued did on and upon testify tiff. the Plaintiff did that relied stopping passengers. car to take on or Whether did did the not, record seems to silent. But the court be plaintiff guilty held that not be could of con declared tributory negligence matter as a and law, of stated persons one of the reasons “That therefor: there were standing on the west of side avenue Garrison off of the passengers the sidewalk street where to and stand people looking cars; take the street that these were apparently waiting to take the west, eastbound said plaintiff car. Prom the of circumstance, this inference might reasonably they have that to take the b.een intended approaching street car and it would west, that stop crossing it to before reached the them do so.” right plaintiff had a to that defendant assume would plain ordinary safety, care for his own the exercise right tiff also had the defendant to assume that would do n reciprocal. the same. The duties of each were
II. its demurrer contends should been have Defendant given sustained, or its withdrawal instructions withdraw- alleged ing from the consideration of the the acts respect vigilant with the to watch ordinance the rule, humanitarian because th'ere was no evidence M. A.—11 APPEAL REPORTS, 211 MISSOURI v. U. Co. of McDonald tending car distance the been what show could-have position peril. stopped into plaintiff came after light Viewing in the favorable to most this evidence plaintiff, we from veldict, find the tes as we must after stopped plaintiff, timony it that car was after struck feet south of one hundred Ashland avenue. One about stop that effort car no was made to witness testified twenty plaintiff, just struck about feet north until as it avenue. curb line of Ashland -Another wit the south began stop motorman that the ness testified twenty-five thirty away .feet from car was or when the Disregarding testimony the witness car until effort made about that no plaintiff, considering only testi time struck twenty-five thirty mony of the car was witness most favorable north, feet would to the defend be that the car stopped it will be within ant, observed fifty forty one of one hundred hundred the distance appears also feet. It from one witness evidence position peril in a at least observed two hun away. given have dred This would motorman stopped ample the car time to have before injured. necessary it was not facts, Under state by expert testimony in what to show distance the stopped, because could have been the evidence discloses stopped fifty one *12 that was within hundred feet began it. the time motorman make efforts refusing give error in there no was Therefore structions offered withdrawing defendant as these signments negligence from consideration . Metropolitan jury Railway [Peterie Street App. City Rys. Mo. S. W. v. Kansas 359, 164 Smith App. cited.] 261, and cases rehearing upon granted in this'
We such case, rehearing among being things, other had, se- riously showing that contended there was no evidence -position pelil in a when street away. two hundred In order matter fully testimony appear in may record, set we out the TEEM, McDonald v. TJ. R. Co. of respect particular
of witness Bretz with to this matter. copy following We direct examination: you
“Q. When did first see Mr. McDonald? A. setting wagon him Saw on the on the east side of Union wagon avenue south of Ashland. saw the I didn’t any pay just attention to it when I first it, noticed saw wagon coming north. up you Up
“Q. How far were road then? A. Bridge standing around Natural road. I the front nothing had end, else to but look do out the front. turning
“Q. You observed him across you Bridge when near Natural were road? A. sir. Yes, Bridge “Q. is Natural How far road from Ashland avenue, about? A. five About hundred I would feet, judge. (Q): you say you
“The Court. Did at that time turning coming saw him into Ashland or north ? A. Not turning; coming north. (Q): you you
“Mr. Wilson Where were when saw him turn into bim avenue? A. When Ashland I saw head across to Ashland cross we were about two hundred approximately' feet north of I Ashland, about that, exactly, though wouldn’t state about that when was turning over the tracks. you anyone standing Did
“Q. notice in the street near A. Ashland avenue? I did. they standing? Where
“Q. A. were When I first they them noticed were the curb 20 or feet north They stepped curb. Ashland, on the out towards the approached. car as it they
“Q. Had come to a standstill before the car got Walking A. there? out in the street is all I noticed, people; just two or three many, I don’t recall how but. people there was two or three there.” copy following also We from his evidence on cross-examination: street, away far
“Q. About how was he you up first him? when saw A. We at Natural were *13 APPEAL REPORTS, MISSOURI R. Co. of St. Louis. McDonald U. Bridge I leaving
Bridge Natural road, road; about conveyance. rig there; a down seen way along? A. No, You him all the watched ££Q. I sir; didn’t. your took down that answer, You as I
£iQ. stated, away your him from when was about Something A. like that. turn across? he started to your Yes. estimate? A. That be ££Q. would you say fast the street At that time how did ££Q. twenty-five going? the rate of about Oh, A. car was hour. an miles Twenty-five A. an hour? About that. miles
££Q. your estimate? A. That be sir. ££Q. Yes, would straight turn across? turn; he did he How did ££Q. west, north, A. headed left, going He turned to the left west. he turned to you the motorman That heard was about when ££Q. appliances getting busy there? A. About these with all over in front of the then. The that he.was time; coming on him. car was down approached far well, how As he ££Q. track — away he when he started to track turn? Away the west track? track, A. from which up coming he was hit? A. He track
££Q. track; in other east of the north words, east of the east over turned across and crossed track. He bound in front of the car. ££ he started do that car was about Now, Q. twenty-five away, coming hour; miles 200 feet ways up quite your A. It was the hill. idea? motorman all this Then started do work ££Q. just previous you then; Not the time of? A. told hit him. away far he when he started About how ££Q. twenty-five thirty feet. that? About A. you wagon starting to see this turn across
££Q. Did turning noticed A. I him when was there. the track? say anything you A. to the motorman? ££Q. Did Certainly not. TEEM,
McDonald v. U. Co. of going you ac- to he think there “Q. Did time. cident? A. Not at the yon turn across Did think was
“Q. you I think? A. Do to know track? what want thinking you just if are No; I want to know “Q. things asking you, Bretz—and I ask Mr. these I am except testimony not to volunteer witness he instructed reply questions. in ‘‘ question. Read the Court: read.)
(Previous question certainly from direc- “A. did think he was, I headed.” tion he had horse his perfectly rational inference that the it think a
We may jury above draw the evidence set out, from position peril in when the a away. only in- rational hundred feet It is was two positive testimony of witness. hut the ference,
III. complains giving of in the Defendant also error damages, in- on the measure the instruction is as follows: struction plaintiff, estimating jury in for the and
“If the find damages you determining should take the measure of his and all the in connection with facts consideration, into suffering bodily pain in and evidence, the circumstances resulting any, anguish, if him endured and and mental injuries received; the character extent and they injuries, permanent in their are his whether and any, prevent- if had been nature; extent, to which he injuries working of his ed reason and disabled necessary earning himself; livelihood his ex- and endeavoring penses cured, be for medical attention may $450; find for him sum of not to exceed the jury, judgment under all as in such sum injuries compensate for the him in the will case, evidence ” received. , urged against it instruction is that The error jury permitted “all the facts to consider and directed arriving at its verdict. and circumstances evidence” 211 MISSOURI APPEAL REPORTS, Hendry Drug Judge Dolph v. & Co. given requested by
There were no other instructions
plaintiff.
perhaps
While
took chances
in sub
mitting
offering
the case to the
without
instructions
defining
practice
issues,
is a
not commendable,
yet plaintiff
right
had the
take
if
so
such
chances
offering any
desired
submit his case without
instruc
[Wingfield
tions.
v.
c.
Railroad,
347, l. 360,
S. W. 1037.
Powell
See, also,
On behalf of the court several instructions.
In go view of fact that entitled to assignments to petition, negligence on all the in the giving
dowe not think the instruction, given, the form in which it was constitutes reversible error. judgment
The Commissioner recommends that the be affirmed. foregoing opinion PER CURIAM: The Nipper, adopted opinion
C., is as the judg- of the court. The accordingly ment circuit court is affirmed. Allen, P. J., Becker Danes, JJ., concur. Respondent, L.
MAYE HENDRY, v. JUDGE & DOLPH Appellant. DRUG COMPANY, Appeals. Opinion St. Louis Court 7, Filed November 1922. Injuries: Druggists: Delivering NEGLIGENCE: Wrong Personal Negligence Medicine: Failure to Read Label: Not as a Matter of injuries Law. In negligently an action to recover for caused selling delivering “Roachsault,” a can labeled poison, salts, for, instead harmless Rochelle called. required Roachsault was not labeled “Poison” as in the sale of poisons 3625, section Revised Statutes held under the evi- dence, the failure of to read or examine the label attached to the can did not constitute as a matter of law.