Spiro v. St. Louis Transit Co. , 109 Mo. App. 1 ( 1904 )

BLAND, P. J.

(after stating the facts). — As was

said when the case was here on the former appeal, “The petition counts exclusively on the violation of that clause of an ordinance uf the city of St. Louis regulating the management of street cars.” The ordinance was not offered or read in evidence. We can not take judicial notice of this ordinance, therefore, there is an absolute failure to prove the very foundation upon which plaintiff predicates his right to recover, unless, as is contended by the plaintiff, the reading of the ordinance as set forth in the petition, when he made his opening statement, placed the ordinance before the court and the jury in such a way that it was thereafter recognized by both parties as being part of plaintiff’s evidence, and was treated as such on the trial. Reed v. Morgan, 100 Mo. App. 713, 73 S. W. 381, is cited and relied upon as supporting this contention. The Reed case was an action to construe a trust provision of a will. The will and the probating thereof was set out in the petition, but, through an oversight, the will was not formally offered in evidence. On appeal it was held that the case would be treated as though the will had been offered in evidence, the case, having been heard in the trial court as though it was before the court. The very subject of inquiry in the Reed case was the will, and all the evidence introduced was in respect to the will and both parties treated it not only as the subject-matter of the controversy, but as being before the court for construction. It was not merely a piece of evidence offered in the case to support an issue, but was the very gist of the whole matter under investigation. The ordinance pleaded by plaintiff was nothing more than a piece of evidence to furnish a foundation upon which he might recover if he could show its violation by defendant’s servants. It was not the gist of the action, but only a link in the chain of evidence relied upon by plaintiff to make out his case, and it seems to us that it was just as essential to prove there was such an ordinance as it was to introduce evidence to show its violation. There is nothing in the record to stow that the defendant, at any time, by any step taken by it on the trial, or by any concessions made by it, recognized the fact that the ordinance was before the court and the jury as evidence. It is true, the court instructed the jury, on the part of plaintiff, on the theory that the ordinance was in evidence, but defendant objected to these instructions and asked none on its part in which the ordinance is referred to or which indicate that it recognized the fact that the ordinance was in evidence. Defendant’s instructions all refer.to common law negligence, which negatives the idea that it acknowledged or admitted that the ordinance had been introduced as evidence in the case. The omission was an oversight, an unfortunate one for the plaintiff, but it is one that cannot be remedied by us.

The judgment is reversed and the cause remanded.

All concur.