Calvert v. Hannibal & St. Joseph R.R. Co.
| Decision Date | 31 October 1866 |
| Parties | JOHN R. CALVERT, Respondent, v. HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Shelby Circuit Court.
James Carr, for appellant.
I. This is an action for negligence, according to the rules of the common law. The respondent is not entitled to recover unless he proves actual negligence, and this he has totally failed to do. The case made in the petition is entirely different from the case made by the proof and the instructions. The pleadings show a common law liability; but the case made by the instructions assumes a statutory liability.--Atwood's Adm'r v. Fox, 30 Mo. 499; Beck v. Ferrara, 19 Mo. 30; Link v. Vaughn, 17 Mo. 585; R. C. 1855, p. 649, § 5; Id. p. 437, § 52; Picott v. Vattier et al., 9 Pet. 415; Smith v. Hann. & St. Jo. R. R. Co. 37 Mo. 287.
II. The respondent is not entitled to recover on statutory grounds, as he attempts to do by the first instruction, for the reason that the allegata and probata must correspond. He cannot allege one thing and prove another.
J. F. Benjamin, for respondent.
When this case was before this court on a former occasion, the judgment was reversed because the evidence adduced on the trial did not disclose actual negligence on the part of the appellant, nor that the injury was committed where the road was not enclosed by a lawful fence, or at the crossing of a public highway. After the cause was remanded, the petition was amended in accordance with the suggestion of the judge who delivered the opinion in this court, and two counts were embodied declaring on each several trespass. On the second trial in the Circuit Court before a jury, it was clearly shown by the evidence that the injury occurred at a place which was not a crossing of a public highway, nor was it enclosed by a lawful fence. The jury, under the instructions of the court, found for the respondent, and the appellant appealed on the ground that the petition only showed a common law liability, and that no recovery could be had without proof of actual negligence; and that a party seeking to recover on statutory provisions, must declare specially on the statute.
It was said in the case of Brown v. Hann. & St. Jo. R. R. Co., 33 Mo. 309, that the “negligence may be established either by proof of the facts and circumstances attending the transaction, or by showing that the injury was done on a part of the road not enclosed by a lawful...
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...is cumulative and the plaintiff may pursue either the common law or statutory remedy at his election. Calvert v. Railroad Co., 34 Mo. 243, 38 Mo. 467; Iba v. Co., 45 Mo. 474; Hill v. Ry. Co., 121 Mo. 477, 26 S.W. 576; Wyckhoff v. Southern Hotel Co., 24 Mo.App. 389; Hill v. Ry. Co., 49 Mo.Ap......
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