Allen v. St. Louis Transit Co.
| Decision Date | 20 June 1904 |
| Citation | 81 S.W. 1142,183 Mo. 411 |
| Parties | ALLEN v. ST. LOUIS TRANSIT COMPANY, ST. LOUIS TRACTION COMPANY, and the UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wm. Zachritz Judge.
Reversed and remanded.
Geo. W Easley with Boyle, Priest & Lehmann for appellants.
(1) The motion to require plaintiff to make his amended petition more definite and certain should have been sustained. The allegation that plaintiff was injured by the negligence of defendants is insufficient. Conley v. Railroad, 109 N.C. 692; S. C., 14 S.E. 303. The only exception to this well-established rule of pleading is in passenger cases where the specific facts alleged raise a presumption of negligence. The presumption of negligence is raised by the accident being caused in the following character of cases: (a) Collision of vehicle in which the passenger was being carried with another vehicle or object. This character of presumption is well illustrated by the following cases: Clark v. Railroad, 127 Mo. 197; Feary v. Railroad, 62 S.W. 542; Shuber v. Railroad, 87 Mo.App. 618; Olsen v. Railroad, 152 Mo. 426; Huelsenkamp v. Railroad, 37 Mo. 553; Barton v. Railroad, 52 Mo. 256; Seymour v. Railroad, 114 Mo. 275; Sweeney v. Railroad, 150 Mo. 385; Bertram v. Railroad, 154 Mo. 639; Wilkerson v. Railroad, 26 Mo.App. 144; Magoffin v. Railroad, 102 Mo. 540; Rinard v. Railroad, 64 S.W. 127. (b) Where the carrier's vehicle broke down. Lemon v. Chandler, 88 Mo. 533. (c) Where the carrier's vehicle was derailed. Hipley v. Railroad, 88 Mo. 351; Furnish v. Railroad, 102 Mo. 453; Feary v. Railroad, 62 S.W. 542; Wilkerson v. Railroad, 26 Mo.App. 144. The other Missouri cases relied on by plaintiff can not be classified under any of the classes of injury that raise a presumption of negligence. The pleadings in these cases generally allege the specific negligence. Dougherty v. Railroad, 81 Mo. 325; Barth v. Railroad, 142 Mo. 535; McDonald v. Railroad, 127 Mo. 43; Webb v. Railroad, 100 Mo. 194; Winters v. Railroad, 99 Mo. 509; Humbert v. Railroad, 110 Mo. 76; Hiltz v. Railroad, 101 Mo. 36; Van Natta v. Railroad, 133 Mo. 13; Bambridge v. Railroad, 36 Mo.App. 669; Benham v. Taylor, 66 Mo.App. 308; Wills v. Railroad, 44 Mo.App. 51. (2) The evidence of the witnesses McCabe and Brown as to their conclusions as to whether a person could safely stand upon the inner running-board of the car, was improper and should have been excluded. It was merely the opinion of the witnesses. The facts should have been stated, and the jury left to draw their own conclusions, uninfluenced by the opinions of these witnesses. Koenig v. Railroad, 173 Mo. 698. (3) The court erred in overruling defendants' demurrer to plaintiff's evidence. Where the facts are undisputed, it is a question of law as to whether the plaintiff was guilty of contributory negligence or not. Beach on Con. Neg. (3 Rev. Ed.), sec. 444; State to use v. Railroad, 84 Md. 163. The demurrer should have been given for the further reason that there was no evidence of any negligence on the part of defendants. The defendants were under no duty to prevent plaintiff's going on the running-boards, and such failure was not negligence. Craighead v. Railroad, 123 N.Y. 391. Nor was it negligence not to have screens and bars erected to keep plaintiff off the inner running-board. State to use v. Railroad, 84 Md. 163. No presumption of negligence arises from the unexplained fact of an injury. The cause, or at least the nature of the accident, must be shown, for it is upon those facts that a presumption of negligence must rest. Saunders v. Railroad, 6 So. Dak. 40; Hite v. Railroad, 130 Mo. 137; Bartley v. Railroad, 148 Mo. 141; Choate v. Railroad, 36 S.W. 246; Nugent v. Railroad, 73 Conn. 139. The burden of proof was on plaintiff to show that there were neither seats nor standing room on the cars, and that plaintiff was proceeding with his back to the approaching car, and that such position of plaintiff was assumed from necessity, not from choice. Gilly v. Railroad (La.), 21 So. 852. (4) The trial court erred in giving the first instruction on behalf of plaintiff. That instruction is erroneous in these particulars: (a) It is so general that it does not submit to the jury any question of fact to be passed upon. The court by this instruction merely delegated to the jury a work which it should have performed. Homuth v. Railroad, 129 Mo. 642. The facts of this case raise no presumption of negligence on the part of defendants. Hite v. Railroad, 130 Mo. 137; Bartley v. Railroad, 148 Mo. 141; Choate v. Railroad (Tex.), 36 S.W. 246; Stewart v. Railroad, 146 Mass. 605; Saunders v. Railroad, 6 So. Dak. 40; Nugent v. Railroad, 73 Conn. 139; Flynn v. Railroad, 67 N. J. L. 546. (b) This instruction ignores the second and third defenses in the answer. These defenses were that the plaintiff unnecessarily went upon the inner running-board of the car, when he might have been seated upon the other side of the grip-car, or taken a seat in the trailer, and that he did not look or listen before stepping on the inner running-board. This was a good defense. Gilly v. Railroad (La.), 2 So. 852. (5) The court erred in giving instruction six on its own motion. The instruction very properly asserts that the failure to post notices warning people to keep off the running-board was not negligence, because the law imposes no such duty. (6) The court erred in refusing the six-teenth and seventeenth instructions asked by defendants.
Finkelnburg, Nagel & Kirby and E. T. Allen for respondent.
(1) (a) The defendants, after overruling of motion to make petition more definite and certain, filed an answer, and thereby waived any right to have that action now reviewed. Leise v. Meyer, 143 Mo. 556; Bernard v. Mott, 89 Mo.App. 403; State ex rel. v. Bank, 160 Mo. 646; Bungenstock v. Dis., 163 Mo. 218; Sanguinett v Webster, 153 Mo. 343; Estes v. Shoe Co., 155 Mo. 583; Seckinger v. Mfg. Co., 129 Mo. 590; Holt v. Cannon, 114 Mo. 514; Sauter v. Leveridge, 103 Mo. 615; Paddock v. Somes, 102 Mo. 226; Scovill v. Glasner, 79 Mo. 449; Strauss v. Transit Co., 77 S.W. 156; Shuler v. Railroad, 87 Mo.App. 618; Gale v. Foss, 47 Mo. 276; Ely v. Porter, 58 Mo. 158. (b) The action of the court in overruling the motion was correct. The petition alleged that plaintiff, as quickly as possible after boarding the car, as a passenger, was going to a seat along the only way provided, and without any want of care on his part, was stricken from the footboard and run over by one of defendants' trains on the parallel track, and that such striking was the result of defendants' negligence, and so forth. It was sufficiently definite. Coudy v. Railroad, 85 Mo. 79; Dougherty v. Railroad, 81 Mo. 325; Barth v. Railroad, 142 Mo. 535; Murphy v. Railroad, 43 Mo.App. 347; Hite v. Railroad, 130 Mo. 136. (c) An allegation specifying the act done, the doing of which caused the injury, and averring that it was negligently done, will suffice in any case. Schneider v. Railroad, 75 Mo. 296; Mack v. Railroad, 77 Mo. 233; Crane v. Railroad, 87 Mo. 595; Sullivan v. Railroad, 97 Mo. 117; Pope v. Railroad, 99 Mo. 403; Rinard v. Railroad, 164 Mo. 270. (d) As a general proposition a passenger need only allege the relation, the injury, and that it was due to the negligence of the carrier, to state a cause of action. Johnson v. Railroad, 173 Mo. 307; Feary v. Railroad, 162 Mo. 96; Gleeson v. Railroad, 140 U.S. 443. (e) The striking of a passenger off a car by a car coming in the opposite direction, before he has time to get a seat, can not be said to be an ordinary incident of prudent and careful management of trains taking up passengers, but the striking itself speaks loudly of gross negligence. Johnson v. Railroad, 173 Mo. 307; Bertram v. Railroad, 154 Mo. 655; Barth v. Railroad, 142 Mo. 550; Dougherty v. Railroad, 97 Mo. 647, 81 Mo. 325; Parks v. Railroad, 77 S.W. 72; Sweeney v. Railroad, 150 Mo. 385; Weber v. Railroad, 100 Mo. 194; Seymour v. Railroad, 114 Mo. 273; Wilmot v. Railroad, 106 Mo. 543; Huelsenkamp v. Railroad, 37 Mo. 553. (2) A careful examination of the pleadings in this case, in the light of well-settled law as laid down by this court, will show that, after the filing of the answer, the only questions left open were, first whether the verdict should be against all the defendants, or against any two, or against only one; and, second, what should be the amount of damages. The stipulation that if the verdict should be against any one defendant it should be against all, eliminated the first question. There was left, then, for the consideration of the jury, the sole question of amount of damages. (3) There was no error in permitting McCabe to testify that a man standing sideways opposite one of the brass handles, upon a moving car, would not clear the moving car on the other track. Neither was it error to permit Brown to testify that a man of his size could not stand up riding on the platform, between moving cars, without leaning in. McCabe and Brown were both conductors of the line, were fully acquainted with all the facts, and had theretofore stated them. (a) The testimony complained of was not of the class of conclusions which are incompetent. Eyerman v. Sheehan, 52 Mo. 221; Greenwell v. Crow, 73 Mo. 638; State v. Patrick, 107 Mo. 174; Olsen v. Railroad, 152 Mo. 426; Kaminski v. Works, 167 Mo. 462; Muth v. Railroad, 87 Mo.App. 434; Heman v. O'Brien, 81 Mo.App. 639; Taylor v. Jackson, 83 Mo.App. 649; Walker v. Davis, 83 Mo.App. 378. (b) The answers admitted that a person could not move along or stand upon the inner footboard without being hit by a passing car. the testimony complained of could not have affected the result. Gould v. Trowbridge, 32 Mo....
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