Setzler v. Metropolitan Street Railway Company

• Decision Date: 12 April 1910
• Citation: 127 S.W. 1,227 Mo. 454
• Parties: PHILLIP SETZLER v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

127 S.W. 1

227 Mo. 454

PHILLIP SETZLER v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

April 12, 1910

Appeal from Jackson Circuit Court. -- Hon. J. L. Smith, Special Judge.

Affirmed.

Jno. H Lucas, J. W. Suddath and Ben T. Hardin for appellant.

(1) Where specific acts of negligence are pleaded, it devolves upon the plaintiff to prove the acts of negligence pleaded and, if he recover at all, it must be on the specific acts of negligence pleaded, and not otherwise. Orcutt v. Cent Bldg. Co., 201 Mo. 443; McGrath v. Railroad, 197 Mo. 105; Bartley v. Railroad, 148 Mo. 124; Ferry v. Railroad, 162 Mo. 96; Ely v. Railroad, 77 Mo. 34; Bunyan v. Railroad, 127 Mo. 12; Hamilton v. Railroad, 114 Mo.App. 508; Beaver v. Railroad, 212 Mo. 531; Roscoe v. Railroad, 202 Mo. 576; Kirkpatrick v. Railroad, 211 Mo. 68. (2) The rule of res ipsa loquitur does not apply where the acts of negligence complained of are specifically pleaded. Orcutt v. Cent. Bldg. Co., 201 Mo. 443; McGrath v. Railroad, 197 Mo. 105; Bartley v. Railroad, 148 Mo. 124; Ferry v. Railroad, 162 Mo. 75; Ely v. Railroad, 77 Mo. 34; Bunyan v. Railroad, 127 Mo. 12; Hamilton v. Railroad, 114 Mo.App. 504. (3) An instruction not based on the evidence is erroneous and should not be given. Hahn v. Cotton, 136 Mo. 227; Smith v. Sedalia, 152 Mo. 299; Press B. & M. Co. v. Buick Co., 151 Mo. 511; Regan v. Railroad, 144 Mo. 636; Price v. Railroad, 77 Mo. 512. (4) It is error to refuse to instruct upon a theory of defendant's case, supported by his evidence. R. S. 1899, sec. 748; Seefert v. Withington, 63 Mo. 580. (5) If plaintiff interrogates a witness about the existence and contents of a memorandum made at the time of the accident, then that memorandum becomes competent and it is error to exclude it. (6) It is error to admit proof of any act of negligence or defect in machinery or track, not pleaded. 29 Cyc. 611; Dlanhi v. Railroad, 135 Mo. 440; McMannaman v. Railroad, 71 Mo. 515; Price v. Railroad, 72 Mo. 415; Kirkpatrick v. Railroad, 211 Mo. 68. (7) Considering plaintiff's age, sixty-nine years, the verdict for $ 7750 is excessive. Waddell v. Railroad, 213 Mo. 8. (8) Where the verdict is against the great weight of the evidence and the physical facts in evidence in the case, a new trial should be granted.

Scarritt, Scarritt & Jones and E. A. Setzler for respondent.

(1) Appellant's first assignment does not point out specifically any ruling of the trial court complained of and will not therefore be considered in this court. As this constitutes no assignment of error as to any specific ruling of the court in regard to the admission or rejection of evidence this court will not search the record for questionable rulings of the court in that respect, and therefore this assignment will not be considered by the court. Supreme Court Ruling No. 15; Hamilton v. Crowe, 175 Mo. 634; Lumber Co. v. Miller, 64 Mo.App. 620; Honeycutt v. Railroad, 40 Mo.App. 677; Newman v. Virginia Co., 80 F. 288; U. S. v. Indian Grave Dist., 85 F. 928. This assignment is without merit on any part of the record. (2) (a) There is no more specific designation in appellant's printed brief of the ruling complained of in this respect than that contained in the assignment quoted above. We therefore submit that under the established practice in this court and the authorities cited by us under (1) this assignment is without merit, because it is not sufficiently specific. (b) On page 101 of appellant's abstract of the record, this is found: Examination by Mr. Hardin, defendant's attorney: "Q. You made this report at the time and turned it in to the company? A. Yes, sir. Mr. Hardin: We offer to read, or allow counsel for plaintiff to read, this statement that he has asked the witness about, that was made by him to the company; we offer to read the report the gentleman has questioned the witness about. Mr. Scarritt: We object to that as an ex parte statement; as incompetent, irrelevant and immaterial, and as a self-serving statement. The Court: On what ground do you claim that is admissible? Mr. Hardin: The attorney for the plaintiff has gone into this matter. Plaintiff's attorney has questioned this witness about the contents of the report he made immediately after the accident and turned in to the company, in regard to taking the names of the witnesses and how many there were, and on that question I now offer it in evidence. Objection sustained; to which ruling of the court the defendant than and there duly excepted." The report of this casualty made by an employee to the master is not even claimed by the appellant to be res gestae. It is a mere self-serving statement, not made under oath, not purporting to have been made from personal knowledge, and is incompetent under all known rules of evidence. (3) (a) The appellant's contention seems to be that an instruction on the part of the plaintiff submitting a theory of recovery, unless the facts involved in that theory have been developed by the plaintiff's proof alone, is erroneous; in other words, that if the instruction submits issues of fact properly raised by the pleadings, if the proof of those facts is brought out in part by the plaintiff and in part by the defendant, such an instruction is error as a matter of law. Our understanding of the proper practice is just to the contrary of this contention. We assert that it is the better practice to submit the issues raised by the pleadings for the determination of the jury and to invoke all the evidence, whether adduced by the plaintiff, or defendant, or by both, in the determination of those issues; and that it is bad practice, amounting possibly to an illegal commentary upon the evidence, to ask a verdict upon specific evidential facts without regarding testimony tending to sustain other facts within the allegations of the petition. Ridenhour v. Railroad, 102 Mo. 270; Peck v. Transit Co., 178 Mo. 627; Feary v. Railroad, 162 Mo. 93; Green v. Railroad, 122 Mo.App. 650; Hurley v. Railroad, 120 Mo.App. 262; Forrester v. Railroad, 116 Mo.App. 40. (b) A second criticism of this instruction, made by the appellant, is based upon the assertion that unless some one has testified, without equivocation, and on personal knowledge, that he saw the gripman move the car forward, or unless that fact was admitted by the employees of the defendant, then the jury were not warranted in finding that the employees of defendant upon and in charge of the car "carelessly and negligently, and without allowing plaintiff a reasonable time to get off the said car, and without any warning to plaintiff caused or permitted said car to be suddenly started and jerked forward." It is not necessary in order to sustain a charge of negligence against a defendant that every specific and particular act of the party or his servants be disclosed by the testimony. This rule applies in all cases, whether the defendant be a common carrier and the plaintiff its passenger or not, and is a radically different principle from what has loosely been called in our jurisprudence the res ipsa loquitur doctrine as applied to suits by passengers against common carriers to recover for permanent injuries. 1 Shearman & Redfield on Negligence (5 Ed.), sec. 58; 3 Elliott on Evidence, sec. 1902; 6 Thompson on Negligence, p. 75; Dougherty v. Railroad, 9 Mo.App. 484; Dougherty v. Railroad, 81 Mo. 325; Memphis Co. v. McCool, 83 Ind. 392; Rine v. Railroad, 100 Mo. 234; Witting v. Railroad, 101 Mo. 641; Lynch v. Railroad, 208 Mo. 1; Och v. Railroad, 130 Mo. 51; Redmon v. Railroad, 185 Mo. 1; Chadwick v. Railroad, 195 Mo. 517. (c) Neither does the petition in this case charge, nor do plaintiff's instructions require the jury to find, specific acts of negligence on the part of the defendant or its servants. It leaves the specific act of negligence, causal of the forward jerk, to be found by the jury; and under all the Missouri authorities, even those relied upon by the appellant, under this state of the pleadings, the sudden starting of the car, the resultant injury to the plaintiff, he being a passenger, makes a prima-facie case and is sufficient proof to carry the case to the jury. And there being evidence disclosed by the record here, under well recognized principles of liability, to take the case to the jury, their verdict is conclusive as to the fact. Dougherty v. Railroad, 81 Mo. 325, 9 Mo.App. 478; Ridenhour v. Railroad, 102 Mo. 270; Chadwick v. Railroad, 195 Mo. 517.

OPINION

VALLIANT, J.

Plaintiff sues to recover damages for personal injuries alleged to have been sustained by him through the negligence of defendant. The trial resulted in a judgment for the plaintiff for $ 7750, from which the defendant has appealed.

Defendant operates a street railway in Kansas City. It has a line of double tracks on Walnut street running north and south, and another line of double tracks, crossing the former, on Ninth street running east and west. At the time of this accident the cars on those tracks were operated by cables. The cables which drew the cars on Walnut street passed under those which drew the Ninth street cars. As a car moving south on Walnut street would approach the Ninth street crossing the gripman would open the jaws of his grip and drop the cable, so as to clear the Ninth street cables, and the car would be carried over the crossing by the momentum. If no stop was intended there, the gripman as soon as the car had cleared the crossing would catch the cable with his grip and the speed would be resumed. When the aim was to stop on the far side of that crossing, the momentum was usually sufficient to carry the car that far, but if not the gripman would catch the cable and make the clearing.

Plaintiff was a passenger on a car going south on Walnut...