Simpson v. Wells

Yol. 292] 1921.

partial upon testi- trial substantial and was convicted of, mony prejudice is no evidence bias or and that there part against him.- the judgment is- and it of trial court should be the All concur. affirmed. al.,

NORA SIMPSON et Administrators of Estate of SAMPSON, CHARLES v. ROLLA WELLS, Re Ap ceiver of UNITED RAILWAYS COMPANY, pellant. Two, February 18,

Division 1922. Case: DEMURRER.: To Plaintiff’s Waiver. Defendant bis 1. waives right plaintiff’s if, heard his demurrer to be evidence overruled, puts in In said demurrer his- after evidence. own duty is the the court circumstances of to determine such controversy competent under all the evidence merits of the in the case. deputy Death Certificate. A of cor- EVIDENCE: certificate

2. plaintiffs’ at a time in intestate died oner certain amputation injuries, hospital city traumatic from “shock and of competent car,” tending feet, due to street both injuries shock received in intestate that said died show street an car with automobile of defendant’s truck collision street, 5802, attempting to cross a under Section he was requiring the State Board of Health Revised Statutes registration system speci- births and deaths maintain contain, fying and under shall Section certificate what furnish, upon application, Registrar requiring the State . death, making copy record of birth or certified coрy prima-facie all courts. evidence in such (a) Inapplicable. Section 5803. Where there is -: -: deputy nothing coroner’s death certificate in- the face thereby had ever dicating covered been referred matters investigation certification, (b) his coroner that after a collision with a street show certificate' evidence and hospital injuries city from shock and died car deceased amputated, being held that it will were both feet while Revised Statutes under Section made occurring/without medical attend- providing “in case MISSOURI, OF SUPREME COURT Simpson , v. Wells. anee, probable if the that the circumstances render it case suspicious means, registrar death was caused unlawful or investigation shall then refer the case to the coroner pur- bring certification.” Said case within the facts do not the of that view section. Meaning 4.-: -: certificate of Two Sections. Where a required physician attending from either to be the coroner or Registrar, filed Re- with the and State 1919, Sections required by vised law Statutes mean that all matters to be prima-facie stated in such certificate are be taken as to in courts. all Leaving 5.-: -: Cause of Death: Sufficient Other Tacts. out view the of “thе of of certificate injuries, the coroner that cause amputation feet, was shock and of both due traumatic car,” proof riding an to street that automobile deceased by truck; car; it a that was struck street that had been deceased good accident; immediately up in health to the time of the that street; lying the collision he found after that two passed front wheels the street car had over and of crushed hospital week, feet; that he was taken to the and died within a might jury properly evidence from which sufficient infer injuries from his death resulted the shock that received in the collision. of Coroner.

6. —--: -: Conclusion The statute does not re- quire that the coroner’s certificate detail the facts which he that the cause of bases his conclusion deceased’s death was shock injuries collision, street-car nor received in a is the mere conclusion of the maker. A inadmissible as a coroner’s injuries, cause death was “shock certificate that the of trau- street, feet, car,” amputation due in view of of both to matic statute, inadmissible as a mere conclusion. is not HIGBEE, J., by car” are P. that the words “due to street Held ,the conclusion, of fact within and nоt a statement mere a meaning the statute. of- of Invasion of Province -: -: No Cross-Examination: 7. right Legislature Jury. facts determine what has the to The matters and make such in a death certificate to shall be stated evidence, prima-facie inad- is not therefore the certificate theory province of it invades the on the missible right cross-examination. of and cuts off Allegations: Demurrer: Motion No No Insufficient NEGLIGENCE: 8. petition appeal complaint that the fails state a Arrest. A doctrine, (a) it humanitarian under cause of action ordinary allege care motorman use failure of the a does not . Vol. OCTOBEB 1921. TEEM, stop passing in truck was street car automobile while the (b) allege front driver of the doe's not either peril, deceased, passenger thereon, truck or a oblivious ordinary saw, care the motorman exercise of petition seen, peril, could if the have their cannot considered judgment, demurrer, was not attacked arrest of or motion manner, or in other at the trial. neg- Passenger. Imputed 9.-: Of Driver of Automobile: attempting ligence of the driver an automobile' truck in imputed moving cross a cannot be street front of street car passenger to á on the truck. -: Instruсtion: driver Obliviousness. Where the foreman and car, street the motor truck testified that motorman forward, stopped, go driver to after it had motioned the good other evidence that motorman had there is substantial in- reason to believe or believe that the driver the truck did the street with- tended to drive across the track front of car question deceased, stopping, of the obliviousness out case, truck, place passenger has the and it is not no jury give telling plaintiff’s instruction that “if the error .to by motorman, saw, ordinary of the exercise care after he or danger seen, running his of street car said have into should ordinary car,” truck, stop said In use care etc. failed to he justly duty evidence, it cannot be claimed that no of such the face stopping his until motorman to commence car rested was oblivious have seen that deceased he should saw error, especially peril. was such instruction where de- And telling jury given instruction and was an fendant asked moving car, ordinary plain- care his exercised if the motorman not recover. tiff could Theory. Damages: Acceptance of Trial Where of Measure —:-:

11. twenty-one surviving years, age no deceased, left him ovеr sister, children, whose a mother and widowed but widow by contributed, regularly suit his in the adminis- support jury you plain- telling “if find for instruction an trators you $2,000, sum unless your find will be verdict tiff sister of-deceased suffered mother and that the evidence from by necessary injury pecuniary excess reason your verdict will be for the $2,000; which event amount event, however, $10,000,” necessary injury; to exceed in no said purview of Revised Statutes Section within Ry. Co., Boyd Pac. 249 Mo. 1. c. and other v. Mo. construed in defendant, given, cases; instructions asked and its hav- theory damages plaintiff’s adopted ing measure of instruction, complain cannot be heard to expressed in said OF MISSOURI, SUPREME COURT Simpson VvWells. harmony wholly penal statute and said instruction out of therewith. Appeal. Theory -: -: defendant

12. -: Different A theory voluntarily adopted plaintiff’s at of the law the trial who concerning damages permitted the measure of will not be to as- disposing appeal sert on action of the trial court in theory the case on such error. Defendant cannot on his appeal tender an issue which he in wise tendered in trial no court, theory and which is in direct conflict with the trial volun- tarily accepted him. Omitting -: Instruction: Material Facts. An instruction di- recting fatally verdict to return a defendаnt de- fective it omits material issues in the case and all reference shown in evidence which if to other facts believed would establish negligence. defendant’s City Appeal from Louis Circuit St. Court.—Hon. John Judge. Calhoun, W: Affirmed.

T. E. Francis, n Charles W. Bates and Albert D. appellant. Nortoni for

(1) given appellant’s The court should have in- struction the nature of a demurrer to the requested plaintiffs’ again at the close of case and evidence, (a) the conclusion of all of the There is no evidence that the act of defendant caused the death of plaintiffs’ decedent. The evidence must show the neces- sary wrongful complained connection with the act of, proximate the as cause of such not death, leave this speculation conjecture. essential connection to mere Ry. Steamship v. Suburban 178 Warner Mo. Co., 134; 126 Clare, 45; Co.-v. Martinez v. Bernard, U. S. 16 La. 55 L. R. A. Am. St. Randall 368, 671, 306; 87 v. New Ry. Ry. Orleans La. v. Met. Co., 778; McQuade 45 St. (Sec. (b) N. Co., 82 T. 720. The statute 4217, R. S. 1919), gives creates and a cause of action for death wrongful by when act which did not caused exist at. only penal, highly common law. The statute but is 305 1921. Vol. spirit penal punishment, in its is that it as in character, pen- pay the “shall forfeit and as offender a declares striсtly alty.” to be It construed and therefore, -is, strictly proceeding pursued so far the as recover Ry. penalty v. Co., is concerned. Grier 286 523; the Lackey Mo. Rys. Casey 231 956; S. v. Co., v. United W. (c) App. This 116 235. Mo. Mo. Co., Transit 205 merely accumulates or enhances is not a statute which damages on which existed at common a cause action contrary, punishment penal or as for law. the is On wrongful of action for and creates a new cause act, Casey punishment. penalty v. Louis Transit as St. such Ry., App. Mo. Grier Co., support (d) solely in its The statute finds Mo. 523. power police do our enacted State, as laws restraining punishing crimes with a view to public awarding eveiy aspect, good. that of In save punishment private penalty way assessed party statute is criminal State, to the this rather than Lackey Rys. S. W. v. U. in character.

(e) evidence could of death introduced The certificate purely supply connection, because it casual op- hearsay, parte was afforded no and defendant ex very portunity crux of as cross-examination only but a con- no fact, stated It, moreover, the case. trial as for an one is on the coroner. When clusion of assessing forfeiture or fine, offense with view wrongful act punishment denounced penalty for a police power prescribed of the State, in virtue right of cross-examination. entitled is, least, right this analogies By denial law, Berkley, Mo. forbidden. State v. both obnoxious Dyke, 30, Art II, 22 and Secs. 41; State manifestly prejudicial (2) It was Mo. Constitution. permit part introduction court error reading death, over in evidence exceptions, objections to show the cause of our contemplated death, (a) of fact It not a certificate conclusion one of a but rather statute, 1919) (Sec. R. part The statute, of the coroner. 22 Mo—20

306 OF MISSOURI, SUPREME COURT

Simpson v. Wells. says under which the court admitted it, prima-facie places “shall he evidence in all courts and ’’ therein The the facts stated. 'in cer- statement ‘‘ tificate the cause of is as follows: Shock injuries, amputation traumatic both feet due to street car.” not the Such is statement of but, on fact, contrary, only the therefore, the conclusion of the coroner, and,

incompetent any Supreme view. Smith v. Council, 207 certificate, S. W. 874. This its face shows by attending’ physician, it was not made an under Section but was made as the conclusion 5802, of the coroner's in- quest, pointed under Section as out in Smith v. .Supreme (b) Council, 207 S. W. 874. cause inquest may death as the coroner’s determined shown case where the cause of death is the fact in issue the conclusion of the coroner or the appearing conclusion coroner’s as for the reason such is a conclusion verdict, reached parte ex in the absence of examination, the adverse party, and without cross-examination. It does not arise dignity Quealtham aof fact. Modern Woodmen, v. 148 33;Mo. Life Ins. Co. Aetna v. Kaiser, 174 S. W. (Ky.) Daugherty 358; Pac. 203; v. Ins. Co., 154 Pa. Brashears, Arcanum v. 89 Md. 624; Mutual Ins. v.Co. Fidelity 46 v. 302; Md. Assn. Md. Stibbe, Ficklin, 74 172; v. Ins. Mich. Co., 568; 84 47 N. W. Cook Travelers Ins. Co. v. 88 Md. Nicholas, 470; Goldsmith v. Mutual Knights Ins. 486; 102 N. Y. Co., Buffalo Ins. v.Co. Templar, Y. 126 N. Am. St. 389; v. Conn. Louis App. (N. Y.) Ins. Div. Ins. Co., Schmidt, Co., (c) experts, St. 112.' Even Ohio medical men, cannot of death in state cause those cases where the cause death is the issuable fact in the case, because province jury. so invades do In other question improper, such must be ruled words, out be- Fidelity says Storage as this court cause, De Maet v. 615, “It calls witness determine very jury.” left issue which is to be Treat North- v. Merchants Life Assn., Bentz Vol. TERM, 1921. 784; 111. Minn. 2 R. A.

western Aid Assn. 40 L. 608; 208 111. v. Rams- Smith, Cent. Railroad v. State People berger, 57 196; Hare, 505; 74 v. Mich. Iowa, Ry. People, 270; 111. Roscoe v. St. Cannon 141 Met. v. Taylor Ry. Ave. 185 Mo. 576; Co., Mo. v. Co. 202 Grand App. Spaulding, v. 122 Baehr 69; Mo. 239; Edina, v. App. (d) in 541. Co.,-133 Union Mo. The words Cas. even car,” certificate, street were the death “due to competent speak, to he on the stand and for a doctor were they especially are obnoxious case, testified Ry. parte Glasgow v. Met. Co., this ex statement. St. (c) v. 541. Neith- 360; Baehr Union 133 Mo. Co., Mo. Cas. Legislature by may purport nor does Sec- make, er may gather- mere conclusions be 5816to make, tion inferences in the absence the ad- or found from ed v. party, to evidence. Schmidt facts utilized verse although Royal words, W. 877. In other Council, 207 S. may possess power Legislature to declare cer- prima-facie we insist it evidence, shall be is tain facts power make that which is neither nor to facts without impinge so would for do evidence, to be enjoy rights to have due of the citizen process Constitution of Missouri and of law under (3) By requested instructions States. tiie United negligence assignments plaintiffs all abandoned relating stopping the street car petition save specification pur- .danger appeared; is, after duty charge humani- porting under the a breach of Fe, doctrine. Sante tarian or last-chance Keele.v. wholly petition (a) insufficient fails is

Mo. 62. duty brеach of under for a action as a cause of to state that it state that doctrine, fails to the humanitarian driving the truck chauffeur the decedent or either peril riding was oblivious on which was the exercise saw, the street car motorman might ordinary that decedent have seen, care peril of such oblivious were of the truck the driver stop duty the street car commence was no there right to motorman then, until assume. COURT OP SUPREME MISSOURI, stop danger and not would drive into the zone. Knapp v. 195 S. Dunham, 1062; W. Rubick v. Sandler, Rys. Lackey 406; Co., W. U. 231 S. W. 962; Rys. v. K. Marshall C. W. Co., 205 S. Stark v. Bingham, Ry. 223 S. 946; Keele Santa W. Pe (4) v. Mo. Pac., Schmidt damages, Plaintiffs’ on the instruction, measure of misleading, highly prejudi- misdirected erroneous, emphasizes compensa- pecuniary in that it cial, loss and damages. tory This instruction authorized penal punishment, statute, the statute is and it is all penalty to be fixed the discretion of the punishment. Although may as a mere incident there compensation pecuniary result in cases for some loss, penal punishment statute for is nevertheless as and is compensate designed pecuniary not to loss. whole punishment provided simple sum for is very for the Legislature ‍​‌‌‌‌‌‌‌​​​‌​​‌​​‌​‌‌​‌‌‌​​‌​​​‌​‌‌​​​​​‌‌​​‌‌​​‍competency reason that the within its has plain English in said the offender “shall forfeit pay penalty as the sum of not less than $2,000and exceeding not in jury.” $10,000, discretion of the R, Ry. Sec. 4217, Co., S. Grier v. 228 S. W. 459; Ry. Toung Casey Co., v. Iron Mountain 227 Mo. 307; App. (a) v. Transit 116 Mo. 205 Mo. 701. Co., than-merely pe- instruction more This does authorize cuniary loss damage, be considered element as an of flagrant pointedly in misdirection, constitutes directs that in event the should find decedent’s pecuniary mother and sister suffered loss of excess “your $2,000, verdict be will for the amount pecuniary injury, but not to exceed $10,000.” Such is proper damages, pecuniary element for loss is but incidental case under this statute, and this and considered and against there must be set over weighed constituting negligence,

therewith the facts which, on all the evidence the record and on the plaintiffs theory voluntarily go elected to jury, certainly aggravating cannot be said to be gross. Ry. (b) Although Mo. 523. Co., Grier Yol.

' Simpson v. "Wells. Rys. Lackey in the ease of widow, v. United as suing minor children on account 956,W. or the may be element father, death of husband there an certainly pecuniary for this consideration, loss for the not very here, true when administrator sues, English plain reason that the statute sufficient equal penalty kin in to next of transmits recovered parts. under this When administrator recovers he does not recover as administrator ’statute, fund in the would for he did then the estate estate, so, payment There- be-liable debts decedent. protect penalty recovered fore, order statutory beneficiaries, administrator use trustee them,- such administrator recovers as Ry. Co., all. Kirk v. administrator, Wabash Light Troll v. Laclede Gas App. 600. respondents; Frank Lehmann II. Nott-

Sears husch of counsel. public

(1) is an official record The death certificate making required by kept. expressly In law merely the statutes are in evidence certificate admissible general declaratory universal rules of evidence as existed, (a) always re- is an officialrecord It have (b) kept. As quired by R. 1919. S. Sec. law be prove facts therein admissible evid.en.ceto such it is Wigmore,- 3 791; 22 J. 58Í6; R. C. sec. stated. S. Ohmeyer Supreme App. 91 Mo. Circle, 1630; sec. v. Ev., Railway, 606; Janis, 196 v. 6 Mo. Gurno 189; Levels v. Gentry 143 Finer v. Nichols, v. Mo. Field, 399; Mo. 330; App. Mo. v. rel. 497; Heffernan, State ex 122 Mo. giving right (c) a of action for statutes 442. While . subject by penal wrongful may act is a civil action the action create construction, strict a trial. is not criminal The-rules trial thereof and the procedure not' those of civil, are parties proceeded (3) at the trial Both trial. criminal SUPREME OF MISSOURI, COURT Simpson v. Wells.- theory compensatory beyond on the the statutе was Appellant object $2,000. did the evidence offered theory eight requested on this and in instructions adopted theory. appellant this noAt time did even hint penal. that it claimed the all Error, statute error if there damages on the was, measure of cannot be claimed appellant. Magoon, Jennings Bettes v. 85 Mo. 580; v. Railway, Railway, 99 Mo. v. 394; Hudson 13;Mo. App. Thorpe Ry. Bank Cushman, v. Mo. v. 102; Co., Harper App. 89 Mo. Hall 650; v. 48 Mo. Co., Water 356; Railway, 114 Mo. Morse, 317; Olferman v. 125 Mo. App. 408; Zielman v. 129 Mo. 189; Harris, Johnson v. App. Ry., Traction Co., 176 Mo. Potter St. 174; App. App. (b) Barber, Adams v. compensatory theory Furthermore is as the more favor- appellant penal theory, able to than the this error, it could be harmless. claimed, was W. Francis,

T. E. Charles Bates Albert D. reply. appellant, Nortoni for (cid:127) requested by plaintiffs (1) The instruction given exceptions, touching the court over defendant’s damages merely the measure of in this case, an enough general scope, well instruction in its but rather positive jury it is an affirmative misdirection of damage as to the element for their consideration, compensate mother and sister of is, decedent. purely penal. Rys. Crier v. statute 228 S. W. Davis, Midwest Trust 223 W. 412. Co. v. Such positively being the instruction is true, erroneous, incorporates damages false and vicious element of damages respect to ascertain the with directs general (2) No to such false rule. one can doubt rule which obtains to effect that a is to case be dis- posed appeal theory same on the it is principle estoppel tried, but invoked and utilized applies only in in such circumstances those cases where party voluntarily has one either invited error Vol. 1921.

joined marking adversary in with his ont course for pursue applies trial. the court to at the Such nowise plaintiffs for alone laid case, the instant here plans, and moved the their marked their course court. it It was to-defend as best could. defendant We theory nothing case, to do with the had plaintiffs’ for us and it was to defend case, was the case being as the case, best Such state of we could. requested that plaintiffs’ theory an instruction in mere fact defendant estops from combating in nowise Mfg. complaining appeal. Co., Car Co. v. Hirsch Mill on Peoples’ By. Co., W. Cochran v. 366.; 227 S. Fire Kenefick-Iiammond Ins. 307. Co. in the RAILEY, case was Cir C. This commenced July City of on Louis, St. Missouri, cuit Court petition alleges, The and shows, Sampson, April death, the time his on that Charles city; plaintiff, the above that a citizen of 19, 1919, was Sampson Simpson, that F. sister, Nora was his Wm. plaintiffs qualified duly his that said as brother; Sampson; Charles estate of said administrators of the surviving minor him children latter left no single time of death, at the his was, no widow; twenty-one years; age that, addition to over man, surviving plaintiffs, his him, mother, Mrs. left decedent city, who of the above married, a resident Hutton, John who is also married Rost, Mrs. Charles sister, alleges Brooklyn, It N. Y. that said and a resident passengers, Railways Company carrier of common is a organized Missouri, and was en the laws under city. operating gaged railroad in said street April alleges, that on petition shows, the evidence appointed receiver Wells, Rolla defendant, Company qualified Railways such; said riding passenger, Sampson on a truck awas Charles employer, operated Louis Poster the St. Advertis said Company; date, after Wells ing the above and while appointed aforesaid, receiver been city in said Biddle proceeding Street east truck was MISSOURI, SUPREME OF COURT Simpson v. Wells. crossing 6th. by therein, Street it was struck a street by operated electric said car, defendant Wells, receiver truck that said aforesaid; was almost across the street part railroad track and rеar of said truck was struck Sampson violently by seriously car; said that said was injured April in collision, and died 19, 1919. The petition alleges directly that said collision was caused by negligence following respects: of defendant in the perceiving That the motorman of said car, after danger of collision between truck and said street car, stop ordinary did not use care to said car in time to per- said that collision; motorman, avoid said after he crossing ceived said truck was said street in of front perceived said have same in car, should the exer- ordinary negligently cise of care, started said car from brought a stand-still and collision with truck into said crossing while said, was the latter said street in front of crossing that said truck was car; while the street danger apparent collision aforesaid, and while was ordinary to said failed to use care motorman, the latter stop by in time to avert said car said collision, when been care it have averted. The exercise such could (cid:127) petition death of Charles further avers that said negligence Sampson defendant was caused petition alleges, as above set out. The servants, Sampson reg- Charles shows, and the evidence said support ularly of his contributed to Mrs. mother, per week; in the sum of Plutton, $15 contributed support Simpson, of his sister, widowed Nora in per petition alleges, week. The sum $5 forty-one years age shows, deceased was good in at the time he killed. health It concludes judgment prayer the sum of $10,000. with a tried on The case an amended answer, which "Wells receiver that defendant admits of said Rail- general ways Company. It also contains denial, and following pleads gent negli- That defenses: deceased was permitting driven himself to be into the street high, dangerous railroad track at excessive rate of Vol. OCTOBEB TEEM, speed; negli- guilty contributory that deceased was gent permitting driven without himself to he thus looking listening approaching thereon, cars street by listening looking when he could have seen, approaching could have in time to heard, the street car - collision; off said track averted said have remained negligence addition afore- decedent, negligence, guilty jumping contributory said, was moving from a a street railroad track automobile moving' directly proximity front and in close of, to, street Thomas were said deceased and one Joe car; jointly negligent permitting causing and said truck gо upon suddenly to front of the said railroad track moving proximity, track, close to said said such car, approach looking listening car, without for the of the they looked listened could have seen when had and to collision. and heard said car in time have avoided said general reply matter The was a denial new pleaded undisputed evidence dis- in said answer. west, east and that closes that Biddle Street runs and city, runs north and in said which intersects 6th Street south. by defendant that the

It at the trial was admitted April p. complained m. at 1:40 on of occurred accident receiver of said while defendant Wells was 12, 1919, road. At the single was a accident, there said date of passed same ears over 6th car track on Street and northerly direction. tending produced Plaintiff substantial day the accident, on the motorman, show that with and 6th Streets of Biddle came to the corner stopped that said corner; at said the same and car, riding truck, Sampson the rear on said was Charles was approached said car Street while 6th the latter stationary, remaining indicated; that the truck as above traveling from ten to twelve Street, towárd continued 6th part of per indications, without miles hour pаssing stop before occupants, truck would that said .its to show that evidence tends track.- Plaintiffs’ over SUPREME COURT OF MISSOURI, standing while said car was corner of Biddle 6th aforesaid, Streets while said truck was passing act of over street-car track, the motorman charge of said car motioned to the chauffeur in pass pursuant truck, to over car track; that proceed, said invitatidii to the chauffeur continued with length, said about truck, was fourteen feet in nearly passed over the track when the rear of same permitted was struck said car, which had been up position standing start its from before' the aforesaid, truck clear could said track. Plaintiffs’ evidence tends Sampson occuping to show that said was a seat on the subject truck behind the chauffeur, that he was Joseph the orders and the control of under Howard, Gr. foreman truck; street car struck the rear end of while the latter headed the truck, east, due broke the chain, headed the truck due Sampson lying after south; that the collision, found with his feet under the that the front car; wheels passed latter had over his ankles and feet; Charles Sampson City Hospital taken in an ambulance to the April, of St. Louis, and died the 19th of 1919. Plain- tending tiffs introduced substantial evidence show up the motorman when he started car aware, was his to occupants, cross Biddle that the its Street, truck, with going proceeding stop, to was but was across said pro- the the street; ceeding motorman, after he saw truck ample put as above time to have indicated, stopped car his under control and same the before a collision' occurred. testimony tending

There was no to that Charles show Sampson prior approach the of its saw car to knew indi- the time There was no direct evidence of collision. injuries cating that decedent came to his death from re- plaintiffs, in said The offered however, ceived collision. copy a certified of death which evidence, certificate, Sampson from to said died the tended show shock injuries in the collision aforesaid. and received testimony part the of the defendant,

The as to immediately at the occurred before and time of what Yol.

- Simpson v. Wells. testimony injury, is in conflict with offered the plaintiffs respect matters. Defendant’s same stop motorman to that the did evidence tends show the corner of Biddle and 6th Streets, when he came to proceeded car, his and thеn but that slowed down journey until collision oc- Biddle Street his across give signal the chauffeur to he did not ; curred that go that after the truck came over the and track, (cid:127) proceeding Street, the track, 6th across was everything power stop his car motorman did The evidence of defendant also and avoid collision. up car from t-he started tends show after the truck corner of 6th and Biddle swerved Streets, passing the car over the around north, went alleges, The answer collision occurred. track where the testimony that the of tends show, defendant rapid speed driving truck at a rate of chauffeur was moving passed track in front of ear. as it over the testimony show also tends The defendant’s Sampson behind not on the truck Charles seat standing running on the but was chauffeur, board wheels thereof.- between the said truck at to the evidence was overruled The demurrer plaintiffs’ a similar case, conclusion demurrer all the evidence conclusion offered was overruled at the trial. given as well refused;-

The instructions complained rulings will be of, considered, court opinion. necessary, in far as plaintiffs favor verdict returned judgment entered thereon due $10,000 trial, motion for new

form. filed a Defеndant duly appealed by it to this overruled and the cause court. appellant assignment errors,

I. its first Under plaintiffs’ evidence should that its demurrer contends have been sustained. put in overruled, defendant its

After demurrer right doing, waived in so its and, its own evidence 316' SUPREME OF COURT MISSOURI, y.

Simpson Wells. be heard upon said ‍​‌‌‌‌‌‌‌​​​‌​​‌​​‌​‌‌​‌‌‌​​‌​​​‌​‌‌​​​​​‌‌​​‌‌​​‍as it then demurrer, became the

duty of the court to determine the merits of Demurer. under all controversy the evidence in the case. v. Holman, 231 S. l. 632; W. c. (Mo.) [Burton v. 225 Ray, State S. W. l. c. 973; (Mo.) State v. Lippman, 222 c. S. l. (Mo.) 439; W. State v. 221 Belknap, S. W. (Mo.) l. c. v. 45; State S. Mann, 217 l. 69; W. c. (Mo.) 208 Lareau v. W. l. Lareau, 243; S. ’Kelly, c. v. O Riley 250 Mo. l. 660, c. 566; 157 S. W. v. Riggs Met. St. Ry. l.

Co., 310, Mo. c. 115 S. W. v. L. 969; Frye St. I. & Ry. Co., 377; M. S. 200 Mo. Hilz v. Ry. Co., l. c. Mo. S. 946; W. McPherson v. Ry. Co., Mo. l. c. 255, 10 846;W. Guenther c. Ry. l. 8 S. Bowen v. W. Ry. Co., 95 l. c. 275-6, 8 S. W. 230.]

II. It insisted appellant the trial court committed error defendant’s overruling objection to

the admission in evidence cer- plaintiffs’ exhibit “B.” tificate, marked Death Certificate. Said certificate in the form, usual and is It certified. shows on properly its face that Charles died the St. Hospital Louis Sampson City on April other things, contains the Among following: n ‘17. certify I that death occurred on hereby stated 8:25 á. m. above, date The cause of death injuries, amputa- was as follows: Shock traumatic tion of both due to car. feet, street

“¥m, M. D. Dever, “Dep. Coroner.” has cited, Cоunsel appellant support authorities, a number of contention, but, aside from that Supreme Royal Council Arcanum, Schmidt 207 S. decided the St. Louis Court of Appeals, W. do later,

will be considered we find them any relating our statute to this nor do subject, construe with similar deal statute nature.

In of this Assembly 1909 the General passed State seq.) an et p. act (Laws 1909, providing that maintain system regis- of Health should State Board TERM, 1921. 317 Vol. Simpson v. Wells. in this etc. Sections State,

tration of births and deaths 1909 act are known Revised Statutes 7 8 ap named 6670 and 6671. The last sections Sections 5802 pear Sections 1919 as in Revised Statutes specifies what the of health 5803. Section certificate Paragraphs contain. and 18 of said 15, 16, shall read section as follows: “ including (15) year, Date of month and death, day.

“(16) of medical Statement attendant of decedent, including-the time time last seen death, fact and alive. including primary “(17) of death, Cause contributory complications, any, and dura- causes tion of each. physician

“(18) Signature and address of of- making the medical certificate.” ficial (same Stautes 1919 Section Revised as Sec. 5816, provides 1909), among things, R. other that: Registrar upon request, shall, “The furnish State any any applicant copy of the certified record of birth provisions registered article, under of this or death copy record of a birth or And of the . . . such registrar properly by the certified State when death, prima-facie copy be true shall evidence in thereof, be a ' places the facts therein stated.” all courts Legislature opinion, of the We are .that prima-facie legal foregoing right to make the incorporated matters authorized to evidence power part record. General as a of said upheld respect Assembly legislate has been to so subjects. kindred following, Priddy Mo. l. c. 333

In Boice, in an able One, of Division and ex behalf J., Graves, subject, copies held certified of this haustive review competent were evidence in census of the United States Priddy. age determining Mrs. Mo. l. c. 622,

In Railroad, Levels Section required school teachers Revised Statutes keep pupils, containing register daily etc., names, SUPREME OF MISSOURI, COURT consideration. The trial excluded was under court register, properly kept, tending case evidence age pupil. J., of a certain dis- show Valliañt, question, cussing the above said:

“It not record evidence sense of strict like school enumeration lists and but conclusiveness, competent lists, the United census States ’’ weighed with evidence. to be in the balance other support of in are cited A number of authorities quotation. above Mfg. Co.,

In v. & Sons 113 Mo. l. Gaus c. Moore speaking for J., Division, this held that a 110, Gantt, signal kept by copy record, of the service the United properly admissible Government, was States evidence. App. l. In Finer v. c. Nichols, 500, Goode, J., Appeals, speaking Louis for the St. Court of that the record concurred, held of the J., Health Nortoni, kept Department by virtue Louis, of St. of charter competent city, and ordinances of said show the the birth mentioned therein. He further date of said: competent by express “The evidence record was by statutory force of the enactment and common-law kept by registers, persons public rule that official requires happening wherein the law office, of cer are admissible recorded, events to be as evidence tain they speak when the of which are occurrences drawn question. (last Ed.) [1 into Greenleaf On Evidence sec. 483.]” Ohmeyer Supreme

In Forest Woodmen Circle, App. of St. J., Mo. c. Louis Court 201-2, Bland, l. Appeals, of said: paper required public

“The one .offerеd law public recorded and filed in the officeof a to be function- by public ary, law, whose office created to-wit, city: exempli- makes an charter same law paper presumptive copy fied evidence its con- . justice. . tents in all courts of . The certificate copy evidence is the burial certifi- offered called is in form and but both substance a certificate cate, particular conforming every with the death, charter Yol. Simpson

„ v. Wells. deposited (section snpra), where the law and was required certificate to be filed, to-wit, a death properly au- commissioner. It was office of the health express provision of the charter was thenticated, competent been admitted as evidence and should have G-eraghty presumptive that Kate evidence of the fact consumption.” died of Reynolds

In Insurance Prudential City App. Kansas Court of l. c. J., of 684, Ellison, subject, considering Appeals, this said: required physician statute “So, therefore, party certify of health to the board the death of a age place require as to did statement things of those would the record of his statement birth, part are not a since them, be evidence they concomitant. But neither death, transaction of are requires to be made, certain statements where the law of those statements is then the record things stated.” following authorities:

To the same effect are 453; Mo. l. c. 243 Delmar ex inf. v. Heffernan, State ‍​‌‌‌‌‌‌‌​​​‌​​‌​​‌​‌‌​‌‌‌​​‌​​​‌​‌‌​​​​​‌‌​​‌‌​​‍l. c. 196 S. 322-3, W. Lewis, Inv. Co. v. Ruling

Corpus p. cited; and cases vol. Juris, 22, Wigmore p. Evidence, Case sec. Law, 303, sec. 1630. Supreme Royal Council

In the case Schmidt v. by appel- (Mo. App.) relied 874, 207 S. W. Arcanum, plaintiff issued her on benefit sued a certificate lant, pleadings, the by sole the defendant. Under husband issue on his own life. The defendant not her husband took was whether or case plaintiff’s contended introduced as evi- suicide, husband had committed containing death, a dence of that certificate fact, ap- by “contributory-suicide.” insisted It was words, prima- pellant established death that said certificate of Revised Statutes 6671, facie case of suicide. Section (Sec. 1919) the certificate R. under which 5803, provides follows: as death was issued, occurring medical at- “In without case of death of the case ... if the tendance, circumstances MISSOURI, OF SUPREME COURT y. Simpson Wells. probable by

render tbe death was caused unlaw- suspicious registrar means, ful or shall then refer investigation the case to the coroner for his certi- ” fication. found from the record before him that J., Becker, 6671, the death was made under said Section certificate 6670, under Section Revised Statutes He opinion signed also recites his said by by physician. deputy attending an coroner, and by depu- finding After that said made certificate was Section, ty by attending an coroner and not under Judge (207 physician, 877): S. W. Becker certificate of “Therefore the statement in.the ‘hemorrhage deputy of death was coroner that cause contributory-suicide’ due to knife wound was a on-wrist, been reached statement of the conclusion that had jury, the men formed the coroner’s was there- who a fact fore not the statement of contemplates such as the statute prima-facie accepted shall be as evidence. required Such statement is under Section Re- namely, the cause vised whether of death Statutes ‘probably accidental, homicidal;’ suicidal or but statement cannot in a for the legal above such reasons stated in the certificate of death ‘fact’ sense considered a be considered such under Section 6684 should ‘prima-facie stated.’ evidence of the facts therein That may have come to or coroner’s the the the coroner autopsy from which was held conclusion, presented ‘prob- deceased had them, before facts probative ably’ have but little could suicide, committed very issue in where this, value a case such as or not the deceased come case whether having suicide. committed It is reason of his physician, attending under Section different where the questions cer- to the a has filled the answers fact, There his answers are answers of death. tificate namely, length the the of time death, the date him physician the last time he saw deceased, attended contributing cause. It death, cause of alive, by questions readily such seen that answers be will Vol. 292]

attending physician be would matter of fact within the physician’s knowledge, own not the is case up by certificate made a coroner.

“We therefore rule that the statement, the cor- oner’s death, certificate of that ‘suicide’ was ‘contribu- tory’ to the death of the not a insured, was statement contemplation fact as Section would make prima-facie ap- out a case for defendant. To sustain pellant’s contention that the certificate of dеath has the force claimed it and effect for would be tantamount usurping the function's of court in most where

cases of homicidal accidental, suicidal, or death, question issue whether not or had been or accidental, homicidal.” suicidal, opinion are of

We that the death certificate in pursuant before case us was not made under and supra, Section for several reasons: First, because nothing indicating there is on the face matters therein covered ever been referred investigation coroner his and certification, as provided in said section;, second, because said section only provides being for those cases sent to the coroner investigation where the certification, death oc- curs without medical attendance. In this case, the evi- dence, certificate, as well as the shows Charles Sampson, injury, day City of was sent Hospital, certificate shows that his death resulted injuries being from shock and while both feet were am putated. presumed, hardly It could be in the absence operation subject, of above character on- that an performed city have been would hospital by person physician surgeon who was Sampson presumably and, hence, die did without contemplated medical attendance as said section; provided third, because in said Section 6671 that might the above matters referred to the coroner for the investigation certification in those cases where suspicious death “was caused unlawful or means.” nothing tending There is in the before record facts us anything show the coroner had to do with this 292 Mo.—2Í

322 MISSOURI, OF SUPREME COURT

Simpson, v. Wells. may signed case. who certificate, Dr. Wm. Dever, deputy signed a also have been and coroner, hence, deputy physician name as certificate, both as and coroner. therefore conclude that the certificate this

We case is 6670, based Statutes Section Revised (Sec. 1919), R. and further it 5802, find properly admitted in court. evidence trial

(a) reading carefully After the.authorities hereto required fore hold where a certificate cited, we is registrar be filed from either the coroner with Legislature attending physician, the intended, of statute. all those 6671, and Sections Meaning required by be law to stated matters prima-facie as evidence, were be taken “in places therein stated,’ facts all as courts contemplated in Revised Section Stаtutes 1909 (Sec. 1919). certificate, Unless coroner’s R. S. prima-facie investigation treated as is after required incorporated be matters to those therein, utterly public as a document. useless would l. c. Heffernan, In ex inf. Mo. State respect very clearly matter, the above is rule law follows: stated as proposition better settled or more is univer-

“No every sally recognized intendment of is than that law corporate regularity acts in favor made kept municipal proceedings. records are Where acts proceedings clearly, defined law same the truth of the evidence of facts re- are receivable pro- to be rule that it would when so seem cited; they because are themselves; establish made duced public agents, notoriety, nature and are of accredited usually sanction an oath made under the and are office.” n approved ruling In followed The above c. 323, l. in Delmar Banc, Lewis, Inv. Co. principles of law declared in in full with the accord cited. the other cases heretofore Yol. 292] y.

Simpson Wells. Leaving question III. out of consideration properly whether the certificate was admitted opinion ai’e we °f the that the in еvi^erLce> jury, presented on the facts in this record, Sufficient Other Facts. justified finding would have been therefrom April Sampson, that Charles a result died as injuries of the shock and which he received in a collision undisputed with car. defendant’s street It that a immediately Sampson collision occurred; that thereafter feet, lying was found on the street with his under the street after car, the two front wheels said car had passed instep he, over his that feet; taken to Hospital City died within one week ac undisputed good up cident. It that' he inwas health of the accident. We then have in the record, time practically collision, with man’s feet off, mashed followed his death one week thereafter. In the ab might sence of that he tending have show way, lost his life some other we think the would finding testimony, have been warranted in from the that his death with resulted from collision defendant’s Ry. paragraph [Burtch street car. opinion Wabash Ry. In 30, 1921; Banc, filed November Soeder v. Co., Mo. l. c. 680.] state-

IY. It is contended defendant paragraph are ments under of the death certificate they mere do conclusions, and that not constitute a state- undisputed dC- ment the facts. It is Mere Sampson fendant’s ear street with collided Conclusion. front of said car ran wheels over Sampson’s The ankles and feet. shows amputated feet were and that'he died from the shock injuries rail- which he due to street received, necessary not road. It that Dr. Dever should have set out his certificate the on which evidence, relied Legislature, for the The ex- conclusion reached. in the prerogative, require anything ercise of its did more impractical than It be was stated. would encumber OF MISSOURI, SUPREME COURT public the details these with records facts are based. recorded Appellant paragraph

_V. insists the death 17 of if admitted in an invasion of the certificate, evidence, is province right jury, and cuts off its Legislature, cross-ex- dealing etc. with this amination, questions, right has undoubted Cross-Examination. wiint tlie dentil determine certifics-te shall to make the matters called therein contain, and although prima-facie may evidence, matters same any purpose, evidence, be as under other admissible age, question Where is one circumstances. may evi- heretofore introduced census, shown, as tending properly the date of etc. A birth, dence to show register kept also be admissible show school would pupil. ago of a In law attendance view of the register the census and school could cited, heretofore legally because evidence, not be excluded afforded because cross-examination, means of the no admis- province jury. of the the sion of same would invade in therefore the death conclude, We properly in evidence. was admitted case this petition by appellant that the is contended VI. It al of based on the to state a cause action is insufficient leged in ordinary motorman to use care failure the passing stopping over truck car while the insufficient, It is in front same. claimed track rule, humanitarian because it does under the allege the decedent, 110^ or that either Insuffecient Allegations. driving, was oblivious truck, chauffeur peril exercise motorman, or saw, ordinary or that the decedent seen, care should have of chauffeur was ap peril

in car’s and oblivious proach, etc. nothing in that the indicate, is

There record petition motion arrest of demurrer, was attacked judgment the trial. other manner der Yol. OCTOBEB TEEM, 1921. 325 fendant and received asked, which contained instructions no reference to “obliviousness.” Under Statute (Sec. 1919), Jeofails R. S. R. 2119, 1909; 1550, S. Sec. tbe settled this announced in its doctrine court as previous rulings, appellant, by of the fore reason going, position petition, is in no to attack even against the latter was leveled obnoxious criticism [Machinery Bottling it. Co. v. 200 Co., 142, S. Ridge, 1079; W. Tebeau 261 547; v. Mo. Rail Winn v. Sawyer Ry. 245 road, Mo. l. 412; c. v. Wabash 156 Co., App. Mo. l. c. 476; 200 l. c. 204 Cook v. Smith, (Mo. App.) 919; S. W. 192 Kerr, Cook W. proposition succeeding See cited in also authorities nine.] undisputed

VII. The Howard, _ charge Sampson foreman, was truck, passenger thereon, whether rear of the located standing ‍​‌‌‌‌‌‌‌​​​‌​​‌​​‌​‌‌​‌‌‌​​‌​​​‌​‌‌​​​​​‌‌​​‌‌​​‍running truck on the of same. There board evidence in no which indicates that decedent record approaching until

knew the car was it was proximity question It was close truck..' Imputed Negligence. for the as to Thomas, whether the chauf- negligence guilty going upon feur, the track moving negligence, car, front of a but his if it existed, imputed Rys. [Mahany cannot be to decedent. v. K. C. (Mo.) 823; S. W. l. c. Co., Moon St. Louis Transit City Mo. l. c. S. W. Neff v. l. Cameron, Mo. c. S. W. Petersen v. v. Transit 199 c. Co., 860; Mo. l. 341, 97 S. W. Sluder l. Co., 648; Transit Mo. c. 88 v. S. W. Beeke Ry. Mo. Pac. Co., 1053; Mo. S. W. v. Davis City (Mo. App.) L. & T. 222 W. c. Co., 885; S. l. Lawler (Mo. v. [Montgomery, Leapard App.) 857; 217 S. W. l. c. Rys. (Mo. Montague App.) 268-9; v. K. C. 214 W. Co., Ry. (Mo. Ry. App.) v. 193 S. l. Profit Co., W. c. App. Munger City l. of c. Sedalia, App. l. c. 631-2.] MISSOURI, OF SUPREME COURT plaintiff’s VIII. Defendant instruction that insists n relating er-

numbered merits case, one of the requires jury “in that that it the find roneous, while to or danger 'after the motorman of said should street car saw, ordinary have in the seen, exercise of of the care, running into that the car truck, said said ordinary care to motorman to use failed Instruction: Obliviousness. stop that It is then car,’ claimed, etc.” said part duty no the the motorman to commence existed on of stopping in the of ordi- the he exercise saw, car until or nary the the decedent or could have seen, care peril, going chauffeur oblivious and was to was stopping anything do the truck. towards instruction is not well criticism of above said (1) ignores several reasons: it founded'for Because the testimony of foreman of Howard, truck, of the the that the car thereof, chauffeur the- Thomas, effect, the stopped corner of Biddle and Streets, 6th the charge the the car, motorman motioned chauf- go province the track. It over was feur pass jury weight If evidence. jurors testimony of above witnesses believed negligence clearly guilty true, the was motorman running chauf- he had warned the the truck down after track. The was sufficient feur to instruction cross theory above under the case, to cover this question no has etc., circumstances, obliviousness, place stopped, motioned the therein. If motorman pass ran track, over the and thereafter chauffeur to truck, into as the driver same car with collision signal passing acting the track, over on said regardless for the the ‘'oblivious- a case made (2) decedent chauffeur. ness” of either Because jury may that the have from believed good at Biddle Street, when arrived motorman, driver of believe, believe, reason to did pass track in front of the car over the truck intended Assuming stopping. intention of without twenty-five thirty where corner, feet from the Vol. 292]

Simpson v. Wells. point col- the of down, the motorman he slowed said may jury evi- concluded from his own the lision, have stopped dence that within ten or his car have been could headed he was twelve feet from the time saw truck any intention for the of the chauffeur track, without passing was stop same. instruction over before theory to cover above without case, sufficient of regard question (3) etc. Be- of obliviousness, testified, nor the conductor motorman, neither cause; believing; chauffeur, had for that the reason slightest into he first ideа view, after stopping came passed As before he over track. the truck going car both testified that street was about four per and as the motorman it could hour, or five miles province stopped in ten it feet, be or twelve jury to whether the motorman determine exercised ordinary permitting care in his car to into collision come regardless of the with the obliviousness either truck, under circumstances. the decedent such chauffeur ’ plaintiffs (a) The instruction numbered converse given at the instance of one defendant, court bv reads as follows: you instructs the find “The court believe and truck mentioned in the evi- from the evidence immediately upon street track car dence was driven approaching street car in front of the proximity and in such close impossible the motor- thereto ordinary ear, care, of said street man exercise regard appliances with hand, due for the and with safety stop passengers, car in such time to avert prevent injury collision the dece- the threatened Sampson, motorman after said saw, dent, Charles ordinary care he could have that the exercise seen, prox- be driven the track near would automobile рeril imity of a collision to the car and then therewith, your plaintiffs must recover, cannot verdict the defendant.” SUPEEME OF MISSOURI, COUET ’ supra, plaintiffs

This instruction, connection with presented necessary, jury all the that was law upon passsing this branch of the case. Appellant assigns

IS. the action of as error- plaintiffs’ giving numbered trial instruction court damages, two, on measure of reads as follows: which jury plaintiff your “If be find verdict will in the sum of evi- unless the $2,000, find from Sampson dence that the a sister of mother and Charles necessary by reason suffered of his injury pecuniary in excess of the sum Measure of Damages. your in which event will $2,000; verdict be injury; necessary event, for the amount said no ’’ sum of however, $10,000. exceed the n gave, appellant, The court at the instance of four relating damages, instructions to the measure of they jurors were advised what should consider as plaintiffs. found for Plaintiffs’ instruction on damages purview the measure of Sec was within 4217, tion Revised as it Statutes was construed Boyd Ry. our in Banc in Pac. Mo. Court v. Mo. Co., 249 Boyd supra, l. 120. The as declared in the c. law Case, emphasized and followed In rel. Banc in ex State Dunham Mo. Ellison, v. this Division Bush, v. Tavis 280 Mo. 217 S. 274. The in W. above struction was the law as declared in based the above petition sufficiently and other cases, and covered this question. appellant,

If counsel date of trial, opinion wholly penal, that the above statute t![ie he put challenging should have himself on the con- record placed Boyd section Case. In- struction adopted pursuing voluntarily stead this course, theory .plaintiffs’ then law as'it and framed stood, plain-, accordingly. his instructions In other both words, voluntarily on the the case tiffs defendant tried and. theory that said statute as indicated should construed Boyd in the and other similar cases above mentioned. Case Vol. 292]

Having the ease as stated, tried above the defendant can- permitted not be to assert the action of here, error, disposing the trial court in thus of the case theory voluntarily adopted parties. by counsel for both [Holmes Magoon, v. 82Mo. l. c. Braidwood, 617; Bettes v. Thorpe 85 Mo. l. c. 585-6; v. 89 Mo. Railroad, 650-1; Long, Reilly v. 91 Mo. 628; Fairbanks v. Railroad, l.Mo. c. Hilz 611; v. 101 Mo. l. Tom- Railroad, 41-2; c. Phelps linson v. City 104 Mo. l. Ellison, 112; c. v. Salisbury, 14; l.Mo. c. Black v. Railroad, 172 Mo. l. c. 187-8; Tube Works v. Ice 201 Mo. Co. Machine Co., Lange Taylor l. c. 64; 475; v. 208 Mo. l. & Railroad, c. Sons Brick Railroad 729; Co. v. 213 Mo. l. Gordon c. l. Park, c. Kame v. Railroad, Harpster, l. c. 197; Miller v. 273 Mo. l. c. Aronovitz Arky, (Mo.) 219 S. l. c. 622.] W. length opinion preclude The this from will us reviewing reply the authorities cited in the brief the to estopped effect that defendant should not be on account adopted plaintiffs having theory of it same the as did conclusively the trial of the case. The record shows that voluntairly plaintiffs this case was tried counsel for penal theory defendant the on the statute compensatory, the extent of the $2,000, etc., as up Appellant relying remainder to $10,000. on now present ruling the fact under the that, of this the court, penal throughout. It statute no such raised issue trial either the or otherwise. It court, instructions plaintiffs no- tendered such issue to either the court or the contrary, in the on the case, but, tried case on the law the prior itas to the Grier decision, stood decidedly opinion, W. 454. We are that the Ry. doctrine announced on 113Mo. Cochran subsequent subject estoppel, as as well cases along should not line, even followed, same con- if applied to the sound, sidered facts of this case. assignment foregoing The accordingly of error is overruled.

330- SUPREME OF MISSOURI, COURT y.

Simpson Wells. properly X. court The refused defendant’s Instruc- particulars, tion because it is F, in several erroneous properly heretofore not law. shown, declare the does It told the аutomobile if driver swerved the truck to “then motor- northward, right

man of car the street assume stop that the or truck either automobile would Assumption of Fact. go north come track.” presumptions There was room no in this in the case, positive face testimony of the of numerous witnesses as especially what occurred, and over- of the face occupants whelming’testimony to the effect moving the truck were ten twelve miles or an hour going straight over the track. motorman himself travelling testified opinion, that the truck, his east on per Biddle "Street at rate of about twelve miles traveling per while hour, he was hoar; four miles five and that the truck when within five six feet car passed track, swerved a little to the north and east to the track. The motorman does claim, testimony, appliances that he use failed to stop theory car, that it north. turn would considering subject Without hold further, we properly said instruction was erroneous and refused. Appellant XI. that error contends was committed in the refusal of its Instruction G, authorized jumped verdict for defendant, decedent from the truck injured, and have when he would not ^eeiL hurt ha<3- thereon. The remained Omission of Material Facts. ’ plaintiffs shows decedent oсcupying part a seat the back of the truck and was off knocked collision between the car and truck. evidence tends to that decedent defendant’s show running truck, board and that jumped running off the as the car was board close proximity to him fell his feet under the car. and with fatally instruction it au- This is because defective, (cid:127)on thorized verdict for defendant within itself, based Vol. duty undertaking

insufficient without to facts, define the although the motorman, either decedent or the former sought may peril, have been to and avoid sudden and impending danger negligent caused defendant’s acts. Ry. Ry. 240; Co., Mo. Bischoff v. [Kleiber v. Co., Ephland Ry. 121 Mo. l. c. v. Mo. Co., 137 Cooper Realty v. 728-9; l. c. Co., v. Delfosse Rys. (Mo.) Stanley l. 862-3; Helm, c. Co., S. W. App. l. cases cited; 204 Mo. c. 223 S. W. and Ry. App. 176 S. W. Street Moore 1120.] complains Appellant action in

XII. of the court’s According conception refusing E. to our its Instruction verdict law, instruction, this authorized a the facts based on stated therein, defendant' erroneous particulars. in several jurors prohibited therein because the were

First, belieyed finding plaintiffs, they from unless stopped at from ^he evidence that car the street Omitting Issues. 6th Biddle corner of while Streets, standing said car was at said corner, truck slowed speed; down they to a slow and unless rate of believed that the motorman truck to motioned driver vague track, cross the etc. instruction in- This jurors may definite on its face. The have believed from occupants moving the evidence that truck were rapidly passing toward the track the intention with yet, jurors stopping, over -same without right plaintiffs, return verdict for found that pass the motorman motioned track, the driver over the negligently rapidly ran too the car to enable .the pass safety, acting truck over the driver while regardless go on the motorman’s invitation to over, required the other matters instruction find. may jurors from

Second, because the have believed testimony' car standstill came may Streets; have corner of Biddle 6th also MISSOURI,- OF SUPBEME COURT standing, motor- thus the ear found, while was good that the believe, man had reason to and did believe stopping, intention of before driver of the truck had no motor- If so, said car moved from a standstill. was starting negligence car and guilty man proceeding was collision under circumstances. to a such opinion, committed that no error was We are refusing said instruction. questions are discussed XIII. other Some opinion length owing we -do not but this briefs, although necessary have we deem them, it to discuss carefully every proposition in- examined and considered think us, case. before we volved On record plaintiffs jury, on substan- casé for the made out a based appellant testimony, fair tial has received a and that voluntarily Impartial along the lines selected trial by its counsel. judgment accordingly below White affirmed. Reeves, concur. GG., opinion foregoing PEB CURIAM: The Bailey, hereby adopted opinion All of the court. as the

0., Higbee, judges in all ex- concur; J.,P. concurs ‍​‌‌‌‌‌‌‌​​​‌​​‌​​‌​‌‌​‌‌‌​​‌​​​‌​‌‌​​​​​‌‌​​‌‌​​‍cept paragraphs five. two and FOR BEHEABING. MOTION

ON overruling the motion P. J. I concur HIGBEE, agree rehearing, that the death certificate but do far as in so states admissible was to street car.” “due The at- the cause of death was properly certify tending physician that the cause could ‘ ‘ injuries, amputa- traumatic of the death was shock feet,” the statement “due to street car” both but tion of not the statement of a fact conclusion and was a mere meaning Statutes of Section Revised within the admission this 1919. However, ample prejudicial de- There evidence that error. amputation from the. of the traumatic ceased effects died controversy really There no feet: about of his death. cause

Case Details

Case Name: Simpson v. Wells

Court Name: Supreme Court of Missouri

Date Published: Feb 18, 1922

Citation: 237 S.W. 520

Court Abbreviation: Mo.