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

• Decision Date: 01 December 1908
• Citation: 134 Mo. App. 282,114 S.W. 88
• Parties: CANADAY v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

114 S.W. 88

134 Mo. App. 282

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

St. Louis Court of Appeals. Missouri.

December 1, 1908.

1. PLEADING (§ 387)—ISSUES AND PROOF—VARIANCE.

Plaintiff will not be permitted to state one cause of action and recover on another.

2. CONTRACTS (§ 346)—ACTIONS—PLEADING.

One pleading an express contract will not be permitted to recover on one implied.

3. CARRIERS (§ 238)—CARRIAGE OF PASSENGERS—RELATION.

The relation of passenger and carrier is dependent on the existence of a contract, either express or implied.

4. CARRIERS (§ 262)—CARRIAGE OF PASSENGERS—PERSONAL INJURIES.

Failure to carry safely is a breach of the obligation imposed by the contract creating the relation of passenger and carrier.

5. CARRIERS (§ 310)—CARRIAGE OF PASSENGERS—PERSONAL INJURIES—ACTIONS FOR INJURIES—NATURE AND FORM.

In those jurisdictions where the common law obtains, an action by a passenger against a common carrier for personal injuries may be maintained either for the breach of the contract of carriage or for the breach of the public duty to exercise a high degree of care.

6. CARRIERS (§ 108)—CARRIAGE OF GOODS—LOSS OR INJURY TO GOODS—CARE REQUIRED OF CARRIER.

A common carrier of goods is an insurer against injury to the goods.

7. CARRIERS (§ 280)—CARRIERS OF PASSENGERS—PERSONAL INJURIES—CARE REQUIRED OF CARRIER.

A common carrier of passengers is not an insurer against personal injuries, but is only liable on a breach of its public duty to exercise a high degree of care.

8. CARRIERS (§ 310)—CARRIAGE OF PASSENGERS — PERSONAL INJURIES—ACTIONS—NATURE AND FORM.

As a general rule, where a passenger is injured by a breach of the carrier's public duty, the remedy is in tort; the wrong done to the passenger and the violation of the public duty being the gravamen of the action.

9. CARRIERS (§ 315) — CARRIAGE OF PASSENGERS — PERSONAL INJURIES — ACTIONS — PLEADING.

When the action against a carrier for injuries to a passenger sounds in tort, the allegation of the contract of carriage is regarded as a mere inducement to the action to show the right to sue as passenger.

10. CARRIERS (§ 315)—CARRIAGE OF PASSENGERS — PERSONAL INJURIES — ACTIONS — ISSUES AND PROOF.

A petition stating a contract of carriage, and showing that plaintiff was injured by the negligence of defendant's servants in starting its street car as she was alighting, when liberally construed in the interests of justice as required by Rev. St. 1899, § 629 (Ann. St. 1906, p. 652), states a cause of action sounding in tort rather than contract, although it alleges an express contract as an inducement, the gist of the action being defendant's breach of its public duty, and therefore evidence of an express contract is not material to the issue, and proof of an implied contract creating the relation of carrier and passenger is sufficient to sustain it.

11. APPEAL AND ERROR (§ 1053)—REVIEW—HARMLESS ERROR—ADMISSSION OF EVIDENCE.

Error in admitting over defendant's objection evidence of permanent injuries not pleaded is cured by an instruction which withdraws all such evidence from the jury.

Appeal from St. Louis Circuit Court; Matt. G. Reynolds, Judge.

Action by Ella E. Canaday against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest, Morton Jourdan, and E. T. Miller, for appellant. A. R. & Howard Taylor, for respondent.

NORTONI, J.

This is an action for damages alleged to have accrued through personal injuries inflicted upon the plaintiff while alighting from one of defendant's street cars. Plaintiff recovered, and the defendant appeals. The evidence on the part of plaintiff tended to prove that she was a passenger on one of defendant's street cars destined for Taylor and Page avenues, in the city of St. Louis. Upon arriving at Taylor avenue, in compliance with a signal from the plaintiff, the car stopped to permit her to alight therefrom. While she was in the act of alighting, the car suddenly started forward with a jerk, precipitating her to the street, whereby her arm was broken and other painful injuries inflicted. At the conclusion of the evidence for the plaintiff, and again at the conclusion of all the evidence, the defendant requested the court to direct a verdict for it on the pleadings and the evidence. These instructions the court refused over defendant's exceptions. The court submitted the issue of defendant's negligence to the jury in appropriate instructions, to all of which the defendant excepted. The defendant requested and the court refused to instruct the jury as follows: "The court instructs the jury that the plaintiff seeks to recover in this action for an alleged failure on defendant's part to keep and perform an express contract entered into between plaintiff and the defendant, by which defendant agreed with plaintiff to safely carry her as a passenger on its car to her point of destination, and there allow her a reasonable time and opportunity to safely alight from said car while the same was stopped. You are, therefore, instructed that, unless you find from the evidence that plaintiff made such express contract with defendant at the time she paid her fare on said car, the plaintiff is not entitled to recover herein, even though you may further find that plaintiff did pay a fare for riding upon said car to said destination and was injured while proceeding to alight therefrom." It will be observed that, by the instruction quoted, the defendant sought to submit the issue of an express contract of carriage between plaintiff and defendant to the jury as one material to her right of recovery. The purport of the instruction is to direct the jury that the plaintiff could not recover even if she were injured as stated, unless she had proved an express contract for her transportation. The argument advanced here is to the effect that the petition pleaded an express contract on the part of the plaintiff, and therefore she must recover thereon or not at all. When on the witness stand, plaintiff gave evidence to the effect that she paid her fare to the conductor, but that she had no express contract as to the point of her destination nor otherwise touching the matter. So far as this feature of the case is concerned, the petition charges substantially that the defendant received the plaintiff as a passenger on its car for a valuable consideration paid by her, and undertook and agreed with plaintiff to safely carry her to her point of destination, at the crossing of Taylor and Page avenues, and there stop the car and allow her an opportunity to safely alight therefrom. After other appropriate recitals, the petition continues to charge, in substance, that while said car was stopped at Taylor and Page avenues, and the plaintiff was, at the invitation of defendant's servants, proceeding to alight therefrom, and while she was in the act...