Wilkerson v. Corrigan Consol. St. Ry. Co.

• Decision Date: 05 May 1887
• Parties: ANDREW J. WILKERSON, Respondent, v. CORRIGAN CONSOLIDATED STREET RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

26 Mo.App. 144

ANDREW J. WILKERSON, Respondent, v. CORRIGAN CONSOLIDATED STREET RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 5, 1887

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

The case and facts are stated in the opinion of the court.

JOHN C TARSNEY, for the appellant.

I. The demurrer submitted at the close of plaintiff's evidence should have been sustained by the court below. There was no evidence submitted by the plaintiff of negligence on the part of the defendant. The mere fact that an accident and injury concurred does not prove negligence. Ward v. Andrews, 3 Mo.App. 275; Nolan v. Shickle, 3 Mo.App. 300; Harvey v Railroad, 6 Mo.App. 585. Common carriers of passengers are not insurers of the lives and limbs of their passengers. They are only bound to the exercise of the utmost care and diligence of very prudent and careful persons, engaged in like business and under like circumstances. Story on Bailments, sects. 601, 602; Sawyer v. Railroad, 37 Mo. 240; Lemon v Chanslor et al., 68 Mo. 340; Gillson v. Railroad, 76 Mo. 287. Some slight neglect on the part of defendant, or its driver, should have been shown, to warrant the court in submitting the cause to the jury. Gillson v. Railroad, 76 Mo. 287.

II. Whether more than one employe was necessary to operate the cars was a question of fact, to be proved by the plaintiff, as any other fact in the case. The court could not take judicial knowledge of how many employes were necessary to operate a car, and it was error for it to submit that question of fact, without evidence, to a jury, some of whom, perhaps, had never seen a car.

III. The demurrer to plaintiff's evidence, and the instructions asked by defendant at the close of the testimony, should have been given; because, in this case, there was no conflict in the evidence, as to the facts. In such case, the question, whether they amount to negligence, is one of law, for the court. Norton v. Ittner, 56 Mo. 351; Owens v. Railroad, 58 Mo. 386; Fletcher v. Railroad, 64 Mo. 484; Stoddard v. Railroad, 65 Mo. 514; Stillson v. Railroad, 67 Mo. 671; Goodwin v. Railroad, 75 Mo. 73. The fifth instruction asked by defendant, and refused by the court, should have been given. It certainly states the law applicable to the facts of this case. Gillson v. Railroad, 76 Mo. 287; Nayle v. Railroad, 75 Mo. 653. It was error for the court to refuse the sixth and seventh instructions asked by defendant, if cause, as well as effect, be still an element of the doctrine of negligence. Unless the rule, that the alleged negligent acts must be the proximate cause of the injury complained of, has been eliminated from the law of negligence, then these instructions should have been given. It is not sufficient to show a negligent act on the part of the defendant, and an injury to the plaintiff. The damage must be shown to be the result of the negligence. Stoneman v. Railroad, 58 Mo. 503; Holman v. Railroad, 62 Mo. 562.

IV. Where the plaintiff alleges a specific act of negligence as the ground of his action, there can be no recovery for any other act. Certainly he should not be permitted to recover for another act, which was not shown to result from the negligence of defendant, and which could not have been prevented by any degree of foresight on the part of defendant. Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414. In this case, the acts of negligence complained of are, that the defendant failed to employ more than one employe to operate the car, and the acts of the driver, in operating the same, and, although the evidence, without any conflict therein, shows that plaintiff's injury resulted solely from the breaking of a brake on the car, and was not influenced by any act of the driver, and could not have been prevented or influenced by the acts of any number of employes who might have been on the car, yet the court refused to declare, as matter of law, by defendant's ninth instruction, what was the immediate and proximate cause of the injury, or to submit that question to the jury by the sixth and seventh instructions, as above.

V. The court should have declared as matter of law what was the immediate and proximate cause of such injuries.

A. COMINGO, CHAS. S. CRYSLER and GATES & WALLACE, for the respondent.

I. The instructions, given for the respondent, not being preserved in its bill of exceptions, this court can not inquire into the correctness of the action of the trial court in refusing instructions asked by appellant. See Greenabaum v. Millsaps, 77 Mo. 474; Davis v. Hilton, 17 Mo.App. 319; Elliott v. Rosenberg, 17 Mo.App. 667.

II. The negligence, charged in plaintiff's petition, is, that " the defendant's employe, who had charge of said car, and drove the team attached thereto, carelessly and negligently left said team, without stopping the same, and with no one to hold, drive, or take charge of the same, and came into said car to collect fares from the passengers therein." And that plaintiff's injuries were occasioned " by reason of the defendant's said employe carelessly and negligently leaving said team with no one to drive, hold, or manage the same, thereby allowing them to run away, and throwing plaintiff from said car." This is amply supported by the evidence. See Saare v. Railroad, 20 Mo.App. 211; Dougherty v. Railroad, 81 Mo. 325; S. C., 9 Mo.App. 478; Hunt v. Railroad, 14 Mo.App. 160; Fortune v. Railroad, 10 Mo.App. 252.

III. The injury having been occasioned by the negligence of the driver, in leaving the team at the time, in the manner, and under the circumstances he did, whereby they got beyond his control, the mere possibility that if the brake in appellant's car had been in proper condition, the driver might have checked the rush of the car when he did return to the team, does not excuse his negligence, in the first instance, in leaving and neglecting them. That was the proximate cause of the injury. See the Lords' Bailiff Jurat of Romney Mash v. The Corporation of Trinity House, L. R. 5 Ex. Ch. 204; Hunt v. Town of Pownall, 9 Vt. 411; Allen v. Hancock, 16 Vt. 230; Winship v. Enfield, 42 N.H. 214; McDonald v. Snelling, 14 Allen 290; Vanderberg v. Troax, 4 Denio 464; Davis v. Garnett, 6 Bing. 716; Bassett v. City of St. Joseph, 53 Mo. 290; Welch v. Railroad, 81 Mo. 466; Werner v. Railroad, 81 Mo. 368; 2 Thompson on Negligence, p. 1085, and authorities there cited; Schmitt v. Railroad, 83 Ill. 405.

IV. The instructions asked, and given, on behalf of the respondent, not being preserved in the bill of exceptions, and, therefore, this court presuming that the law was properly declared by the trial court, the only question in this court is, whether there is any evidence to sustain the verdict.

V. The bill of exceptions, not purporting to set out all the evidence, this court cannot consider the question, whether there was any evidence to support the verdict or not.

PER CURIAM.

This is an action to recover damages for personal injury alleged to have been sustained by plaintiff, while a passenger on one of defendant's street cars, in Kansas City. The material portions of the petition are as follows:

" That it is, and was, the duty of the defendant to furnish good and safe cars, and teams, and a sufficient number of competent employes to carry, in safety, all persons who are received by it as passengers on the said street railroad; that, in order to operate said cars, in safety, one employe was not sufficient to drive and manage the team attached thereto, and, also, to collect the fares from the passengers; that, on the car in which plaintiff was a passenger, as aforesaid, the defendant had negligently and carelessly failed to furnish more than one employe to manage and drive the team and to collect the fares from the passengers; that, when said car had reached the brow of a steep hill, on Bluff street, in said City of Kansas, the defendant's employe, who had charge of said car, and drove the team attached thereto, carelessly and negligently left said team, without stopping the same, and with no one to hold, drive, or take charge of the same, and came into said car to collect fares from the passengers therein; that thereupon, said team ran away, along and down said Bluff street, in said city, causing said car to leave its track and to collide with a bridge, over which said street passes, and, thereby, plaintiff, without any fault on his part, was thrown from said car, and upon the ground with great violence, by means of which plaintiff's left arm was broken, his spine and back hurt, and he was otherwise greatly maimed and permanently injured.

Plaintiff says that his said injuries were occasioned by the defendant's carelessness and neglect in not furnishing a sufficient number of employes in and about said car and teams to operate the same in safety, and by reason of the defendant's said employe carelessly and negligently leaving said team with no one to drive, hold or manage the same, thereby allowing them to run away, and throwing plaintiff from said car, as above stated."

The answer tendered the general issue. Verdict for the plaintiff for the sum of two thousand dollars. Defendant has appealed.

We are precluded from reviewing the imputed error, which we were led to regard as the troublesome question in this case, from the course of the oral argument made at this bar, arising on the action of the trial court, in refusing certain instructions asked by the defendant. The bill of exceptions shows that the court gave several instructions, on behalf of the plaintiff which are not preserved in the bill of exceptions. The presumption, in such case, is to be indulged in favor of the action of the court in refusing instructions asked by the appellant,...