Bobbitt v. United Rys. Co. of St. Louis

• Decision Date: 04 January 1913
• Citation: 153 S.W. 70
• Parties: BOBBITT v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

153 S.W. 70

BOBBITT v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

January 4, 1913.

1. NEGLIGENCE (§ 119) — EVIDENCE — VARIANCE.

Where specific negligence is averred, it must be proven as averred, since a party cannot sue on one cause of action and recover on another.

2. CARRIERS (§ 320) — PASSENGER'S ACTION FOR INJURIES — QUESTIONS FOR JURY.

Where a street car passenger, suing for injuries, alleged that, after the speed of the car had been reduced to a very slow rate, the company's employés, without bringing it to a stop so as to enable her to alight, negligently, suddenly, and violently started the car at an increased speed, causing her to be jerked, jarred, and thrown from the car, and her evidence was inconsistent and contradictory as to whether the jar occurred in coming to a stop, in starting after having stopped, or in suddenly starting without coming to a full stop, it was a question for the jury which version was correct, or whether any credit should be given her testimony, and hence the direction of a verdict for defendant on the ground of variance was improper.

3. CARRIERS (§ 298) — INJURIES TO PASSENGER — LIABILITY.

A street car company is not liable for injuries to a passenger thrown from a car by a jerk in coming to a stop, unless the jerk is an unusual one.

4. CARRIERS (§ 303) — INJURIES TO PASSENGERS — LIABILITY.

A street car company is liable for injuries to a passenger thrown to the ground by a sudden jerk in starting the car without warning, while the passenger is preparing to alight, whether or not the jerk is an extraordinary one.

5. CARRIERS (§ 314) — PASSENGER'S ACTION FOR INJURIES — PETITION.

The petition in a street car passenger's action for injuries, alleging that the jerk by which she was thrown to the ground was the result of suddenly and negligently starting the car, sufficiently pleads the specific act of negligence which caused the jerk.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Mary L. Bobbitt against the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Kinealy v. Kinealy, of St. Louis, for appellant. Boyle & Priest, Geo. Priest, and R. E. Blodgett, all of St. Louis, for respondent.

REYNOLDS, P. J.

This is an action brought by plaintiff, appellant here, for damages for injuries alleged to have been sustained while a passenger on a car of the respondent street railway company. It is averred that plaintiff, having signalled for the car to stop, walked to the front platform, "and stood in a position to alight therefrom after said car had been brought to a standstill; that while plaintiff was so waiting for said car to be stopped in order that she might alight therefrom and after the speed of said car had been reduced by the employés of defendant in charge thereof to a very slow rate, the defendant's said employés, without bringing the said car to a stop so as to enable plaintiff to alight therefrom, negligently, suddenly and violently started said car forward at an increased speed, thereby causing plaintiff to be jerked, jarred and thrown from said car to the street." Setting out the injuries sustained, plaintiff prays judgment for $3,500.

The answer was a general denial and the plea of contributory negligence to which latter a reply was filed.

The cause coming on for trial before the court and a jury, at the conclusion of the evidence offered and introduced by plaintiff, the court at the instance of defendant instructed the jury that under the law and the evidence plaintiff could not recover and that their verdict must be for defendant. Excepting to the giving of this instruction, plaintiff took a nonsuit with leave to move to set the same aside. In due time she filed her motion, which was overruled, exception saved to the action of the court, and appeal duly perfected to this court.

The error here assigned is to the action of the court in giving the peremptory instruction in favor of defendant, it being claimed that on the evidence introduced by plaintiff she was entitled to go to the jury. The testimony of plaintiff herself as to the accident, on her direct examination, is about as follows: She was a passenger on a car of the defendant company and desired to get off at Pendleton avenue. She was sitting in the third seat from the front of the car and started toward the rear of it but could not get through as the aisle was crowded. She then started out toward the front entrance. She reached...