Allen v. Metropolitan Street Railway Co.

126 S.W. 254, 141 Mo. App. 586, 1910 Mo. App. LEXIS 123

• Court: Missouri Court of Appeals
• Decided: February 21, 1910
• Status: Published

Opinion

ELLISON, J.

Plaintiff’s husband died from injuries which she alleges were inflicted by one of defendant’s street cars, through the negligence of defendant’s servants who were operating the car. At the close of the evidence for plaintiff, defendant offered a peremptory instruction directing a verdict for it, which the court gave, and plaintiff took a nonsuit.

An examination of the record satisfies us that •while there was evidence which would tend to show that deceased was struck by the. car there was none whatever to show negligence on the part of the defendant. Whatever legitimate or reasonable inference could be drawn from it tended to show negligence on the part of deceased whereby he was unavoidably struck by the car.

We need not go into any discussion of the questions presented, or the theories advanced by plaintiff, since, whether right or wrong, nothing has been preserved by the record for our review. As already stated, the court gave an instruction directing a verdict for defendant. The plaintiff did not except to that action of the court, but took a nonsuit. There is therefore nothing before us for consideration. [Lewis v. Mining Co., 199 Mo. 463; Carter v. O’Neill, 102 Mo. App. 391.]

It is true that there was an exception taken to the overruling the motion to set aside the nonsuit and grant a new trial; but that is not sufficient. [McClure v. Campbell, 148 Mo. 96.]

The judgment is affirmed.

All concur.