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

• Citation: 114 S.W. 88,134 Mo.App. 282
• Parties: CANADAY, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Decision Date: 01 December 1908
• Court: Court of Appeal of Missouri (US)

114 S.W. 88

134 Mo.App. 282

CANADAY, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

December 1, 1908

Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.

Judgment affirmed.

Boyle & Priest, Morton Jourdan, and Edward T. Miller for appellant.

(1) The demurrer to the plaintiff's evidence, the peremptory instruction offered at the close of all the evidence, and defendant's requested instruction 1, were all improperly refused. The cause of action stated in the petition was unproven and disproven. Plaintiff was permitted to recover on a cause of action not pleaded. The relation of carrier and passenger arises out of contract and to support a recovery the contract must be established. Schepers v Railroad, 126 Mo. 665; Schaefer v. Railroad, 128 Mo. 64; Duff v. Railroad, 91 Pa. 458; 2 Shear & Redf. on Negligence (4 Ed.), p. 488; Patterson's Railway Accident Law, secs. 210, 214. Plaintiff cannot plead one cause of action and recover upon another. Weil v Posten, 77 Mo. 284; Chitty v. Railway, 148 Mo. 64; Real Estate Co. v. Hotel Co., 100 S.W. 577; Koons v. Car Co., 101 S.W. 49. Where plaintiff alleges an express contract the contract must be proven as set forth or plaintiff cannot recover. Wallrath v. Bohnenkamp, 97 Mo.App. 242; Bell v. Tobacco Co. , 103 S.W. 1014; Ingwerson v. Railway, 103 S.W. 1143; Mann v. Birchard, 40 Vt. 326; 1 Wait's Actions and Defenses, p. 90, sec. 2; Ibid, p. 399, sec. 2; 3 Ency. of Plead. and Prac., p. 849. (2) That the relation of carrier and passenger arises out of contract need not be argued. Before there can be a recovery by a plaintiff, asserting the rights of a passenger, the contract, express or implied, must be established. If the contract be express it must be relied upon, and when pleaded it must be proven. No other can be recovered upon. "A party will not be permitted on the trial to state one cause of action and recover upon another." Real Estate Co. v. Hotel Co., 100 S.W. 579. "He must stand upon the case made by the pleadings." Weil v. Posten, 77 Mo. 287.

A. R. & Howard Taylor for respondent.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

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 of alighting, before she had reasonable time or opportunity to do so, said car was by defendant's servants in charge thereof, negligently caused and suffered to start into fast motion with a jerk and shock, whereby the plaintiff was thrown from said car against the pavement and permanently injured by sustaining a fracture of her arm, etc. Of course, the general rule is a plaintiff will not be permitted to state one cause of action and recover on another, and there is no doubt of the general proposition that one pleading an express contract will not be permitted to recover on one implied. In so far as the defendant's request for the court to peremptorily direct a verdict is concerned, the argument advanced is that there was a total failure of proof to sustain the allegations of the petition for the reason the petition counted and sought a recovery on an express contract with defendant. In so far as the court's refusal of the defendant's instruction above copied is concerned, the argument is that the instruction sought to submit to the jury the express contract pleaded in the petition and the court therefore erred in refusing it. It is said the relation of passenger and carrier is contractual and the plaintiff having chosen to plead an express contract in this respect, must prove it as laid or else fail of recovery. There is no doubt of the proposition that the relation of passenger and carrier is dependent upon the existence of a contract, either express or implied; and that a failure to safely carry is a breach of the obligation imposed by the contract. [Schepers v. Union Depot Ry. Co., 126 Mo. 665, 29 S.W. 712; Schaefer v. St. L. & Sub. Ry. Co., 128 Mo. 64, 30 S.W. 331.] However this may be, the obligation of the carrier arises as much out of a public duty to safely carry, which is imposed by law, as it does out of the contract, and the rule is universal in those jurisdictions where the common law obtains that an action by a passenger against a common carrier for personal injuries may be maintained either ex contractu on the breach of the contract of carriage, or ex delicto for a breach of the public duty or obligation imposed by law to exercise a high degree of care looking to safe carriage. [Patterson v. Railway Co., 94 Ga. 140; Frink v. Potter, 17 Ill. 406; Nevin v. Pullman Car Co., 106 Ill. 222; 15 Amer. and Eng. Ency. Law (2 Ed.), 1121, 1122; 5 Amer. and Eng. Ency. Law (2 Ed.), 480; 4 Elliott on Railroads, sec. 1696; Lemon v. Chanslor, 68 Mo. 340, 353.] Although the relation of carrier and...