White v. United Railway Company

• Citation: 157 S.W. 593,250 Mo. 476
• Parties: ROY WHITE, A Minor, by his Next Friend, v. THE UNITED RAILWAYS COMPANY, Appellant
• Decision Date: 31 May 1913
• Court: United States State Supreme Court of Missouri

157 S.W. 593

250 Mo. 476

ROY WHITE, A Minor, by his Next Friend, v. THE UNITED RAILWAYS COMPANY, Appellant

Supreme Court of Missouri, First Division

May 31, 1913

Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.

Reversed and remanded (with directions).

Boyle & Priest, Morton Jourdan and T. E. Francis for appellant.

(1) Even though defendant's instruction 6 was not within the issues tendered by the answer, nevertheless the facts upon which it was predicated having been developed in plaintiff's own evidence, it was proper to give it. Sissel v. Railroad, 214 Mo. 526; Pim v. Transit Co., 108 Mo.App. 716; Hill v. Drug Co., 140 Mo 438; Fire Brick Co. v. Railroad, 21 Mo.App. 656; Chaney v. Railroad, 176 Mo. 598; Allen v Transit Co., 183 Mo. 424; Hudson v. Railroad, 101 Mo. 30; Benjamin v. Railroad, 245 Mo. 598. (2) Plaintiff's instruction 1 having required, as a condition precedent to the return of a verdict for him, a finding that "prior to the time of said alleged injury to plaintiff he was exercising ordinary care for his own safety," it was proper to give defendant's instruction 6, since it merely undertook to specifically define the acts of contributory negligence that plaintiff must be found to have been free from, which were submitted in a general way by plaintiff's said instruction. Hill v. Drug Co., 140 Mo. 438; Heffernan v. Ragsdale, 199 Mo. 382.

Watts, Gentry & Lee for respondent.

(1) The action of the trial court in granting a new trial for error in giving instruction 6 should be affirmed, because the instruction was wrong in submitting to the jury a ground of contributory negligence which was not set forth in defendant's specific plea of contributory negligence. The only contributory negligence charged against the plaintiff in the answer was negligence in alighting or attempting to alight from the street car while it was in motion. The ground of contributory negligence submitted in instruction 6 was standing dangerously near the edge of the platform. Defendant was bound by its specification of grounds of contributory negligence, and it was error for the instruction to include another ground not pleaded by defendant. Curtis v. McNair, 173 Mo. 292; Storage & Moving Co. v. Transit Co., 120 Mo.App. 410; Lange v. Railroad, 208 Mo. 478; Railroad v. Stable Co., 119 Ala. 615; Railroad v. Ray, 96 S.W. 74; Edwards v. Campbell, 33 S.W. 761; Railroad v. Harvey, 27 S.W. 423; Thompson on Negligence, sec. 466; Railroad v. Morton, 10 C. C. A. 92, 61 F. 814; Railroad v. Jamison, 12 Tex. Civ. App. 689; Railroad v. Scanlan, 168 Ill. 34. It is necessary for the contributory negligence of plaintiff to be specified, else it may be stricken out or ordered made more definite and certain. Harrison v. Railroad, 74 Mo. 364. When specially pleaded, acts thus set out are all that can be proved, for a special charge limits a general one. Chittey v. Railroad, 148 Mo. 64; Haley v. Railroad, 197 Mo. 22; Yawl v. Gilliam, 187 Mo. 393; Taylor v. Railroad, 185 Mo. 253. The general rule is that a pleader is limited to proof of the specific allegations made. Gurley v. Railroad, 93 Mo. 445; Waldhier v. Railroad, 71 Mo. 514; Bohn v. Railroad, 106 Mo. 433; Hite v. Railroad, 130 Mo. 132. No reason is perceived why this rule should not bind defendants as well as plaintiffs. (2) The action of the trial court in granting a new trial for error in giving instruction 6 at defendant's request was right, because that instruction was fatally defective in permitting the defendant to recover on account of plaintiff's supposed contributory negligence even though such contributory negligence may not directly or proximately have contributed to cause his injury. The wording of it permits plaintiff to be defeated on the ground of contributory negligence if his act caused or contributed to cause his injury. This is not the law. Even if plaintiff is guilty of an act which is admittedly a negligent act, that does not defeat his recovery, unless it directly or proximately contributes to cause his injury. Morrissey v. Ferry Co., 43 Mo. 380; Meyer v. Railroad, 43 Mo. 523; Moore v. Transit Co., 126 Mo. 265; Oates v. Railroad, 168 Mo. 535; Spencer v. Transit Co., 111 Mo.App. 653; Payne v. Railroad, 129 Mo. 405; Meyer v. Railroad, 40 Mo. 151; Meyers v. Railroad, 59 Mo. 230; Coney Island Co. v. Dennan, 149 F. 687; 7 Am. & Eng. Ency. Law (2 Ed.), p. 380; Railroad v. Kraft, 80 S.W. 408; White's Supp. to Thompson's Commentaries on the Law of Negligence, sec. 216; Thompson v. Duncan, 76 Ala. 334; Schweinfurth v. Railroad, 60 Ohio St. 215; Holmes v. Transit Co., 10 Ohio Cir.Dec. 638; Nelson v. Railroad, 68 S.C. 465; Merrill v. Sheffield, 169 A. 242. (3) The action of the trial court in granting a new trial for error in giving instruction 6 was right because there was no evidence upon which to base that instruction. According to plaintiff's evidence, the sole cause of his injury was the extraordinary jerk of the car, caused by the improper application of the air brake. According to defendant's evidence, there was no such application of the air brake and no jerk whatever, and defendant's evidence was to the effect that plaintiff voluntarily stepped off and was injured by so doing and not by reason of standing on the platform or step. Therefore, there was absolutely no evidence in the case tending to show that the plaintiff's injury resulted from standing with one foot on the platform and the other foot on the step. Parks v. Railroad, 178 Mo. 108; Willmott v. Railroad, 106 Mo. 535; Paquin v. Railroad, 90 Mo.App. 118.

BLAIR, C. Brown, C., concurs.

OPINION

BLAIR, C.

This is an appeal from an order of the circuit court of St. Louis City granting a new trial after verdict for defendant in an action for damages for injuries alleged to have been the result of plaintiff's having been thrown from one of defendant's cars by the sudden application of the air brake. The answer consisted of a general denial coupled with a plea that "whatever injuries, if any, plaintiff sustained, were caused by his own carelessness and negligence in alighting or attempting to alight from the street car while it was in motion."

Plaintiff was fifteen years and five months old when injured and had lived in St. Louis a little over six years. He testifies that during this time he had ridden upon street cars a great deal, was accustomed to riding on them and had been for over a year making six trips daily over the line upon which he was injured. At the time he was injured he lived at 4051 Shenandoah avenue, which is in the block between Lawrence and Thurman avenues, and at the latter westbound cars turn south. Plaintiff boarded the car at the Union Station, where he worked, about 9 p. m., and rode on the front platform until he reached a point nearly opposite his home when he nodded to the motorman to indicate he wished to alight at the corner. He then took a position with both feet upon the step or one foot upon the front platform and one upon the step, facing inward and southward, with his right hand grasping the handhold in front of him and with his left hand grasping the handhold upon the front of the body of the car. At this juncture the car was on Shenandoah avenue nearly two hundred feet from the entrance to the curve into Thurman avenue and was moving at its usual speed, eight to twelve miles an hour, according to plaintiff. Plaintiff says that he saw the motorman apply the brake, heard the hiss of the air and then, he says "I got a jolt -- the hardest jolt I ever got while I have been riding on the cars, and my right handhold broke, and I swung around and hit the car, and I went under the wheels. That is all I remember until they picked me up." He testifies he was standing as above stated at the time the brake was put on and was making no attempt to step or jump from the car.

On cross-examination plaintiff testified he didn't known whether he was thrown backward or forward; that to the best of his knowledge the grasp of his right hand upon the front handhold was first broken and then he tried to hold with his left hand but could not do so. When he was picked up he was lying at a point about one hundred and twenty feet east of the entrance to the curve into Thurman avenue and about one hundred and sixty feet east of the east building line of that avenue and about forty feet west of his home.

Plaintiff is uncorroborated as to the jerk or lurch he says the car gave and both his witnesses and defendant's say they neither saw nor heard anything of the kind. The motorman testified he saw plaintiff take the position usually assumed by persons about to alight from a moving car and then step off upon the ground and both he and the conductor deny that the air brake was applied in the manner testified to by plaintiff and deny there was any jerk or jolt of the car.

The trial court granted the new trial on the ground that it had erred in giving, at defendant's request, the following instruction:

"The court instructs the jury that if they believe from the evidence that a reasonably prudent boy of plaintiff's age and capacity for understanding and appreciating danger would not have placed himself near the edge of the car under the circumstances, and that plaintiff's act in so placing himself near the edge of said platform and on the step caused, or contributed to cause, his injuries, if any, then your verdict must be for the defendant."

Defendant contends (1) that the instruction is not erroneous and (2) that if erroneous the error was invited by plaintiff.

I. It is not contended plaintiff's testimony establishes as a matter of law his contributory negligence, but merely that its tendency to show such negligence is sufficient to justify a finding thereof by the jury. This position is...