Cabanne v. St. Louis Car Company
| Decision Date | 02 December 1913 |
| Citation | 161 S.W. 597,178 Mo.App. 718 |
| Parties | C. GRATIOT CABANNE, Respondent, v. ST. LOUIS CAR COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Muench Judge.
AFFIRMED.
Judgment affirmed.
Watts Gentry & Lee for appellant.
(1) The amended petition does not state a cause of action because it fails to charge that the defendant had actual or constructive notice of the defective condition of the automobile which is alleged to have caused injury to plaintiff. This is a fatal omission. It is always necessary for the servant to allege and prove notice, either actual or constructive, to the master. Miller v. La Prelle Shoe Co., 109 Mo.App 506; Current v. Railway Co., 86 Mo. 62. (2) This point may be properly raised for the first time on appeal. Epperson v. Postal Tel. Co., 155 Mo. 346; Davis v. Jacksonville, etc., Line, 126 Mo. 69; Ball v. Neosho, 109 Mo.App. 683; Cartwright v. Telephone Co., 205 Mo. 126. (3) The court erred in overruling defendant's demurrer to the evidence. (a) Because plaintiff's evidence did not show the cause of the accident. The jury could only speculate from what plaintiff testified to in order to arrive at a verdict. The accident may have been caused by the separation of the two parts which plaintiff found separate, or it may have been caused by the bursting of the tire, or it may have been caused by plaintiff's rapid driving around the curve, steering the machine with only one hand, which one witness testified he was doing and which plaintiff did not deny. Even if liability existed for any one of these causes, defendant would not be liable for all of them. Therefore, plaintiff must show clearly that the cause which produced the accident was one for which defendant was liable. Having failed to thus clearly show the cause, he was not entitled to have his case submitted to the jury. Cothran v. Cudahy Pkg. Co., 98 Mo.App. 349; McGrath v. Transit Co., 197 Mo. 104; Purcell v. Tennent Shoe Co., 187 Mo. 276; Wilkerson v. Railroad, 140 Mo.App. 320; Goransson v. Ritter, etc., Co., 186 Mo. 300. (b) Again the demurrer to the evidence should have been sustained, because, even if the parts separated before the accident there was no evidence of any defect causing them to separate, and there was certainly no evidence that any defect existed as much as one moment preceding the separation of the parts and the resulting accident. The mere fact that they separated (if they did so separate) does not prove the existence of the defect alleged, nor notice to the master of the existence of such defect. Res ipsa loquitur does not apply in such cases between master and servant, and particularly where the servant specifically alleges the nature and cause of the defect which he claims produced the accident and resulting injury. Beebee v. Transit Co., 206 Mo. 419; Hamilton v. Railway, 114 Mo.App. 509; Zachra v. Amer. Mfg. Co., 159 Mo.App. 96; Gibler v. Railroad, 148 Mo.App. 475; Breden v. Big Circle Mining Co., 103 Mo.App. 176. Even in passenger cases it does not apply under such a pleading. Miller v. Storage Co., 155 Mo.App. 528; Orcutt v. Bldg. Co., 201 Mo. 425; Roscoe v. Street Railway Co., 202 Mo. 587. It was incumbent of plaintiff not only to show the cause of the accident but that the defective condition existed prior to the accident, and that it was known to the master, or that it had constructive notice thereof. Elliot v. Railroad, 67 Mo. 272; Covey v. Railroad, 86 Mo. 635; Wojtylak v. Coal Co., 188 Mo. 281; Kelly v. Railway, 105 Mo.App. 365; Krampe v. Brewing Assn., 59 Mo.App. 277; Pavey v. Railroad, 85 Mo.App. 218; Herbert v. Shoe Co., 90 Mo.App. 305; Looney v. Railway Co., 200 U.S. 480; American Car & Fdg. Co. v. Dietz, 203 F. 439; Glasscock v. Dry Goods Co., 106 Mo.App. 663. The master is presumed to have done his duty--to have exercised ordinary care. Yarnell v. Railway, 113 Mo. 579; Lenox v. Harrison, 88 Mo. 491; Glasscock v. Dry Goods Co., 106 Mo.App. 663; Elliot v. Railroad, 204 Mo. 14. (c) The demurrer to the evidence should have been sustained because plaintiff's own evidence shows he was guilty of contributory negligence directly contributing to his negligence. He violated a statute, which is negligence per se. Sluder v. Transit Co., 189 Mo. 187; Meyer v. Railroad, 99 Mo.App. 363; Kalb v. Railroad, 102 Mo.App. 143; Riska v. Railroad, 180 Mo. 168; Hanlon v. Railway Co., 104 Mo. 381; Ashby v. Gravel Road Co., 99 Mo.App. 178. (4) Instruction number 1 is fatally defective, because it does not require the jury to find that the alleged defective condition of the car referred to in said instruction was known to defendant, or would have been known to it if it had exercised ordinary care. It is essential that the jury should be told that actual or constructive knowledge on the part of the defendant of the alleged defective condition is necessary before plaintiff can recover. Wojtylak v. Coal Co., 188 Mo. 281. (5) Instruction number 3, given at the request of the plaintiff, is erroneous. This instruction is erroneous in three particulars. First, it permits recovery for doctors' bills for which plaintiff has paid, when the evidence shows that he had paid no doctors' bills. Second, it permits recovery for nurses' and doctors' bills incurred as well as for those paid, when there was no evidence and no allegation of any nurses' bills at all, and no allegation of any doctors' bills incurred but not paid. The allegation of payment and proof of incurring does not authorize recovery for doctors' bills incurred. There was no evidence of what was paid out for doctors' bills, hence it was error to embrace that in the instruction. Howard v. Railroad, 110 Mo.App. 582. In the third place, it is erroneous because it gives the jury a roving commission to allow plaintiff damages for future ill effects without giving the slightest indication as to what ill effects are meant, or what may be considered. It is error to give instructions on the measure of damages which permit recovery for elements not pleaded nor shown by the evidence. Gibler v. Railroad Assn., 203 Mo. 208; Morris v. Railway Co., 144 Mo. 500; Waldopfel v. Transit Co., 102 Mo.App. 629; Moellman v. Giesel-Henselmeier L. Co., 134 Mo.App. 485; Handle Co. v. Hoffman, 140 Mo.App. 634.
Jones, Hocker, Hawes & Angert for respondent.
(1) An allegation of negligence is equivalent to an averment of knowledge or means of knowledge, and plaintiff's amended petition charging the defendant with negligence in furnishing him with a car with an unsafe, dangerous and defective steering apparatus, is not defective because it did not further allege that defendant had actual or constructive notice of the defective condition of said car. Crane v. Railway Co., 87 Mo. 588; Fassbinder v. Railway, 126 Mo.App. 563; Johnson v. Railway Co., 96 Mo. 340; Tateman v. Railway Co., 96 Mo.App. 448; Bellamy v. Whitesell, 123 Mo.App. 610; Clippard v. St. Louis Transit Co., 202 Mo. 432; Young v. The Shickle H. & H. Iron Co., 103 Mo. 324; Hall v. Railroad, 74 Mo. 302; Bowie v. Kansas City, 51 Mo. 456. (2) The court did not err in overruling defendant's demurrer to the evidence, because: (a) The evidence clearly showed that the defective condition of the steering apparatus was the cause of the accident. (b) On a demurrer to the evidence not only every fact which was proved by direct evidence is to be taken as admitted, but also every reasonable inference that may be drawn therefrom. Holman v. Mining Co., 102 Mo.App. 423; Franke v. City of St. Louis, 110 Mo. 516; Holman v. Railroad Co., 62 Mo. 562. (c) Where one relies on a violation of the statute as constituting negligence per se, he must not only show the violation of the statute, but he must show in addition that the violation of the statute was the proximate cause of the injury. Campbell v. Transit Co., 121 Mo.App. 406; Stoneman v. Railroad Co., 58 Mo. 501; Rowen v. Railroad Co., 198 Mo. 654. (d) The violation of a statute as constituting negligence per se, can only be asserted where the consequences particularly or generally contemplated by its provisions have ensued to the party relying on its violation. Foster v. Swope, 41 Mo.App. 137; Latapie-Vignaux v. Askew Saddlery Co., 193 Mo. 1. (e) Where defects in appliances are so pronounced that a person of ordinary intelligence and understanding, knowing the manner and method of their use and operation must necessarily conclude that the defects have existed in such appliances for a long period of time, it is unnecessary to introduce evidence, as in this case, tending to show that the defective condition of these parts had existed long prior to the accident, as the jury themselves are capable of determining this fact. Bowen v. Railway Co., 95 Mo. 268; Edwards v. Barber, 92 Mo.App. 221; Benjamin v. Street Railway Co., 133 Mo. 274; Koenig v. Railroad, 173 Mo. 698; Gutridge v. Railroad Co., 94 Mo. 468; Lee v. Knapp, 155 Mo. 610. (3) Plaintiff's instruction number 3 on the measure of damages is not erroneous. Under a general prayer for damages in a petition, where the defendant does not object to the introduction of evidence at the trial showing damages not specifically prayed for in the petition a recovery may be had therefor. Scholl v. Grayson, 147 Mo.App. 652; Spengler v. St. Louis Transit Co., 108 Mo.App. 329; Gorham v. Railroad, 113 Mo. 408; Mellor v. Railroad Co., 105 Mo. 455.
This is a suit for damages accrued to plaintiff through the negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
Defendant manufactures and sells automobiles, and plaintiff was in its employ as a demonstrator and salesman of its automobiles at the time of his injury. It appears pla...
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