154 Mo. App. 20 | Mo. Ct. App. | 1910
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal. Plaintiff was injured through defendant’s negligence while she was a passenger on its car.
The first argument advanced for a reversal of the judgment relates to the action of the court in denying defendant’s oral application for a continuance upon the filing of plaintiff’s reply on the day the cause was set for hearing. The petition counts upon the negligence of defendant in respect of its obligation to exercise high care for plaintiff’s safety when she was preparing to alight from the car. The answer, besides being a general denial, set up new matter in that it interposed a plea to the effect that plaintiff was guilty of negligence which contributed directly to her injury. It seems the answer was filed some time prior to the day on which the case was set for hearing and plaintiff had omitted to reply thereto. Upon the case being called for trial, defendant’s counsel orally moved the court to continue the same because the cause was not at issue as no reply had been filed and because under the statutes it had the right to demur to plain
As a general rule, the matter of granting and refusing continuances on other than statutory grounds is one within the discretion of the trial court, and unless a clear abuse of such discretion is shown on appeal, its action in the premises will not be disturbed. [St. Louis, C. G. & Ft. S. Railway Company v. Holiday, 131 Mo. 440, 33 S. W. 49.]
Our code provisions contemplate that a party may default in filing his reply and afford his adversary a competent and ample remedy in the circumstances of such case. Section 1810, Revised Statutes 1909, provides if the answer contains new matter, as it did in this case, gnd plaintiff fails to reply or demur thereto within the time prescribed by the order or the rule of the court, the defendant may have such judgment as he is entitled to on the new matter, and if the case requires it, a writ of inquiry as to damages may issue. Under this statute, it has been frequently ruled that where the reply is not in at the proper time the defendant should move for a judgment on the pleadings and if it omits to so move and proceeds to trial, the matter of a reply will be regarded as waived and the case thereafter treated as though it were in. [Smith v. St. Joseph, 45 Mo. 449; Roden v. Helm, 192 Mo. 71, 90 S. W. 798.] It is true the rule of those cases is not precisely in point, for the question presented is not the
Plaintiff was a passenger on defendant’s street car operated by it on what is known as its Hodiamont line. She boarded defendant’s east-bound car, in company with her husband and daughter, at Suburban Garden, and was destined to Yandeventer avenue in the city of St. Louis. It appears just before reaching plaintiff’s destination, the conductor called out “Yandeventer avenue,” as is usual, and plaintiff gave the signal for the car to stop at that place. After having-given the signal, she arose from her seat and walked to the rear platform of the car with the purpose to alight when the ear stopped. Plaintiff stood on the platform of the car with one hand holding- to the door and with the other holding her dress. Just as the car approached Vandeventer avenue, its speed was suddenly checked with great force and she was precipitated therefrom into the street, whereby serious and painful injuries were inflicted upon her. It is argued
The remaining argument for a reversal goes to the effect that plaintiff’s instructions which submitted to the jury the question of negligence of defendant’s servants operating the car as a predicate of liability should not have' been given for the reason there was no evidence after putting aside the presumption of negligence tending to show a negligent act on the part of the operatives of the car. The subject-matter of.this argument has been fully considered above .and the assignment of error with respect to it as well as the others should he overruled. The judgment should he affirmed. It is so ordered.