Breeden v. Big Circle Min. Co.

Citation103 Mo. App. 176,76 S.W. 731
CourtCourt of Appeal of Missouri (US)
Decision Date08 June 1903
PartiesBREEDEN v. BIG CIRCLE MIN. CO.<SMALL><SUP>*</SUP></SMALL>

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by J. C. Breeden against the Big Circle Mining Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. R. Robertson, for appellant. Shannon & Shannon, for respondent.

SMITH, P. J.

Action to recover damages for personal injuries. The negligence alleged in the petition was that the defendant "had provided a bumper in one of its crushers or breaks, with an eye which was insufficient and too weak for the purpose for which it was used, and was made of three-quarter inch cast steel, instead of being made of one and one-quarter inch malleable iron, as it should have been," and "on account of its insufficient strength for said purpose broke," whereby, etc. The general allegation that the "eye was insufficient and too weak for the purpose for which it was used" was followed by the specification that it was made of three-quarter inch cast steel, instead of 1¼ malleable iron, as it should have been, or, in other words, the eye was insufficient and too weak, in that it was "made of three-quarter inch cast steel, instead of 1¼ inch malleable iron."

Obviously this is not a case where a series of negligent acts and circumstances leading up to the catastrophe are alleged. In such a case the pleader is not bound to select one of the precedent acts of negligence, and rely upon that, when that alone may not be sufficient, but two or more, or all of them collectively, may be sufficient to make out a case entitling him to recover. The rule is illustrated by the following cases: Hill v. Railway, 49 Mo. App. 520; Id., 121 Mo. 482, 26 S. W. 576; Oglesby v. Railway, 150 Mo. 137, 37 S. W. 829, 51 S. W. 758. But in a case like this, where there is a general allegation of negligence, followed by another specifying the acts of negligence, the plaintiff will be confined to the specifications. And so it has been ruled that, where specific negligence is alleged in connection with a general allegation, no proof of negligence outside of that specified is admissible. McManamee v. Railway, 135 Mo., loc. cit. 447, 37 S. W. 119; Waldhier v. Railway, 71 Mo. 515; Schneider v. Railway, 75 Mo. 295; McCarty v. Hotel Co., 144 Mo., loc. cit. 402, 46 S. W. 172; Chitty v. Railway, 148 Mo., loc. cit. 75, 49 S. W. 868; Watson v. Railway, 133 Mo. 246, 34 S. W. 573. And so, too, it has been held that, where evidence of negligence other than that specifically alleged is admitted over the objections of the defendant, an instruction based on facts constituting such unspecified negligence was improper. Conway v. Railway, 24 Mo. App. 235.

There was no evidence whatever introduced which tended to prove that the eye was made of cast steel, instead of malleable iron. There was, however, some that it was made of iron, and common iron at that, but that was all. And while the defendant does not seem to have objected to the introduction of evidence tending to prove negligence different from that specified, yet, as...

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