Behen v. St. Louis Transit Company
| Decision Date | 15 February 1905 |
| Citation | 85 S.W. 346,186 Mo. 430 |
| Parties | BEHEN v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.
Reversed and remanded.
Boyle Priest & Lehmann, Geo. W. Easley and Martin & Woolfolk for appellant.
(1) The court should have required plaintiff to elect on which charge of negligence he would stand and go to trial. The two charges of negligence are inconsistent with one another and cannot stand together for the reason that they are in irreconcilable conflict, in this, that the first charge of negligence is that defendant started its car from a standing position while the plaintiff was standing on the running-board in the act of alighting therefrom, whereas the second charge of negligence in the petition is that defendant was negligent in that its conductor permitted and allowed the plaintiff, a woman, in violation of the ordinance of the city of St. Louis, to leave the car while it was in motion. On plaintiff's own statement in his petition it necessarily follows that the proof of one alleged negligence would disprove the other. When this is true there must be an election. (2) He who desires to avail himself of the benefit of a statute must state facts sufficient to bring himself within its provisions. Reynolds v. Railroad, 85 Mo. 90; Emmerson v. Railroad, 111 Mo. 161; Sumner v Rogers, 90 Mo. 324. The trial court erred in permitting plaintiff, over the objection of defendant, to change the cause of action herein by inserting the word "negligently" in the petition, thereby changing the plaintiff's cause of action from an action ex contractu to one ex delicto. Without the amendment permitted by the court defendant's petition is a model form for an action founded on contract, and there is no limit or suggestion in the pleading that plaintiff intended to bring the suit under the Damage Act, except the amount for which he prays judgment. Plaintiff is not allowed to change his cause of action. Huston v. Tyler, 140 Mo. 252; Cole v Armour, 154 Mo. 351. (3) Plaintiff improperly joined in the same petition actions ex contractu and ex delicto. Sumner v. Rodgers, 90 Mo. 324; Southworth Co. v. Lamb, 82 Mo. 242; O'Riley v. Diss, 48 Mo.App. 62; Jamison v. Copher, 35 Mo. 483; Ederlin v. Judge, 36 Mo. 350; Pruett v. Warren, 71 Mo.App. 84; Clements v. Yates, 69 Mo. 624. (4) A fair consideration of the testimony of all the witnesses who testified in this case, and the showing of all the facts and circumstances connected with the accident, plainly disclose that there is no evidence in the case to support the verdict of the jury and judgment of the court. And on this proposition no reasonable mind can have a doubt. And for this reason the case should be reversed. Griswold v. Railroad, 64 Wis. 652; Hurt v. Railroad, 94 Mo. 255; Strauss v. Railroad, 75 Mo. 185; Yarnell v. Railroad, 113 Mo. 570; Jackson v. Railroad, 118 Mo. 224; Saxton v. Railroad, 98 Mo.App. 494. (5) The record abundantly shows that defendant, by its servants and employees in charge of the car on which plaintiff's mother was a passenger during the entire time that she was a passenger on said car, exercised the highest practical degree of care such as would be exercised by careful and skilled railroad employees under like circumstances, to carry the plaintiff's mother safely as such passenger to her point of destination and that the car stopped at her point of destination a much longer time than was necessary for plaintiff's mother, in the exercise of ordinary care for her own safety, to alight from said car. If this is true, then the defendant is not liable, notwithstanding plaintiff's mother was injured by the accident, and died from said injuries. Carriers of passengers are not insurers of the safety of their passengers. When everything has been done which human prudence and foresight can suggest, accidents may and do happen, in which cases the carrier is not responsible. Sawyer v. Railroad, 37 Mo. 240; Gibson v. Railroad, 76 Mo. 282; Henry v. Railroad, 113 Mo. 526; Hite v. Railroad, 130 Mo. 132; Feary v. Railroad, 162 Mo. 100; Peck v. Railroad, 178 Mo. 617; Bartley v. Railroad, 148 Mo. 124. (6) The proof does not conform to the cause of action specified in the petition and the variance is fatal. Price v. Railroad, 72 Mo. 414; Waldhier v. Railroad, 71 Mo. 314; Peck v. Railroad, 178 Mo. 617; Harty v. Railroad, 95 Mo. 368; Feary v. Railroad, 162 Mo. 96; Crawford v. Aultman & Co., 139 Mo. 271. (7) According to plaintiff's theory of the case, the showing of physical facts destroys plaintiff's chance of recovery. What was plaintiff's mother doing that she did not avail herself of the ample time and opportunity to get off the car safely when the five or six other passengers were alighting from more remote parts of the car at the same point of destination? The conclusive and inevitable inference is that she was guilty of gross negligence by an omission of duty in not alighting from the car when it had stopped a reasonable time to permit passengers to alight. Plaintiff's intention is at war with the common sense and experience of man. Weltmer v. Bishop, 171 Mo. 116; Weber v. Railroad, 100 Mo. 201; Keown v. Railroad, 141 Mo. 93; Bursching v. Gaslight Co., 73 Mo. 229; Carroll v. Railroad, 107 Mo. 659. (8) The court erred in giving on its own motion instructions 1, 2 and 3, which instructions licensed and authorized the jury to return a verdict against defendant without regard to the time and place plaintiffs mother fell from defendant's car and received her said injuries, and in utter disregard of the specific cause of action laid in the petition. It is elementary and axiomatic law that the plaintiff can not count on one cause of action and recover on another. The proof must be confined to the negligence as laid in the petition. Price v. Railroad, 72 Mo. 414; Buffington v. Railroad, 64 Mo. 246; Waldhier v. Railroad, 71 Mo. 514; Hite v. Railroad, 130 Mo. 132; Fuchs v. St. Louis, 133 Mo. 197; Whetstone v. Shaw, 70 Mo. 579; Haynes v. Trenton, 108 Mo. 130; Helena Creamery Co. v. Atkinson, 90 Mo.App. 399; Haines v. Pearson, 100 Mo.App. 551; Chitty v. Railroad, 148 Mo. 65; Raming v. Railroad, 157 Mo. 477; Conrad Grocer Co. v. Railroad, 89 Mo.App. 534. (9) The court committed very prejudicial error in refusing to give to the jury instructions 6, 7, 8, 11, 12, 13 and 14, requested by defendant, the effect, object and purpose of said instructions being to limit plaintiff's right of recovery to the negligence as specifically laid in the petition and to exclude from the consideration of the jury all other negligences, if any, of the defendant that might be connected with plaintiff's mother falling from said car at any other point or under any other circumstances than those alleged and charged in the petition. Said instructions declare the well-settled law of this State, and should have been given to sustain this point. Authorities cited last above.
A. R. Taylor for respondent.
The law governing the relation of carrier and passenger is that the carrier must stop the car at the passenger's destination, and keep it stopped a reasonable time to enable any passenger to alight in safety from the car whilst so stopped. And, after doing this and before starting the car, it is the duty of the conductor to see that no passenger is in the act of leaving the car and in danger from the starting of the car. Keller v. Railroad, 27 Minn. 182; Hutchinson on Carriers, sec. 612; Becker v. Realty Co., 174 Mo. 246. The evidence shows that deceased was using due diligence to get off the car. Both she and her mother arose from their seats when the car stopped, as plaintiff's evidence showed, and defendant's conductor grounded the defense on the alleged fact that she was getting off too quick. The deceased, as the evidence shows, was in plain view of the conductor when she arose and was getting down from the car on the running-board and preparing to step off. Why did he start the car under these circumstances, even if two or more passengers had gotten off the car? How can such conduct of the conductor be reconciled with the rule of his duty, prescribed in the Becker case, supra? Appellant's second point is a reproduction of his first. He says that deceased could have jumped off the car quicker, because other passengers had gotten off. Under the law of the Becker case this is no excuse for starting the car. Suppose another or other passengers could and did get off the car. Yet the evidence for plaintiff shows that deceased was proceeding to get off the car, say, if you will, not in a hurry or confusion. She was on her feet while the other passengers were stepping off -- both she and her aged mother. Suppose she was a little slower in stepping off -- she was in plain view of the conductor. Her mother was on her feet to get off. Apply the law of the Becker case to these facts and appellant's contention has no support. The plaintiff's evidence shows that he started the car whilst she was getting off. He not only permitted her to get off whilst the car was in motion, but caused the car to be in motion whilst she was getting off. How can it be said that this was not permitting her to leave the car whilst it was in motion, when he himself was the cause?
Plaintiff's mother was a passenger on one of defendant's street cars and fell while attempting to alight therefrom and received injuries from which she soon afterwards died. The plaintiff was the only child of deceased, who was his only living parent, and was a minor. The suit was brought in the name of the minor by his guardian and curator to recover ...
To continue reading
Request your trial