Crabtree v. St. Louis & San Francisco Railroad Co.

• Decision Date: 01 July 1925
• Citation: Crabtree v. St. Louis & San Francisco Railroad Co., 273 S.W. 1104, 218 Mo.App. 306 (Mo. App. 1925)
• Parties: E. S. CRABTREE, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

273 S.W. 1104

218 Mo.App. 306

E. S. CRABTREE, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Springfield

July 1, 1925

Appeal from the Circuit Court of Crawford County.--Hon. W. E Barton, Judge.

REVERSED.

Judgment reversed.

W. F Evans, E. T. Miller, of St. Louis, Mann & Mann, of Springfield, and Frank H. Farris, of Rolla, for appellant.

(1) The plaintiff was permitted to testify that there was no felt or any other lining on the inside of the jamb of the toilet door; that there was no air service appliance attached to said door; and that the train was running forty to forty-five miles per hour. Neither the condition of the toilet door, and the failure to have thereon any kind of safety appliance, nor the speed of the train was pleaded by the plaintiff as negligence of the defendant, and as the proximate cause for his injuries. By the admission of this testimony, new issues were raised, and the proof broadened the issues beyond the limit of plaintiff's petition. The proof must be confined to the negligence raised and pleaded in the petition. And this testimony, clearly inadmissible, went to the jury over appellant's objections and exceptions. McManamee v Missouri Pacific Ry. Co., 135 Mo. 447; Hearon v. Lumber Co., 224 S.W. 69; Pate v. Dumbauld, 250 S.W. 52, and cases cited; West v. Hollady, 196 S.W. 404, and cases cited; Allen v. Transit Co., 183 Mo. 436. (2) The instruction offered by the appellant in the nature of a demurrer to plaintiff's evidence offered at the close of plaintiff's case should have been given. The facts shown did not authorize a recovery under the law. Christensen v. Oregon Short Line R. R. Co., 35 Utah 137, 99 P. 676, Negligence Compensation Cases, Vol. I, page 232; Hardwick v. Railway, 85 Ga. 507, 9 Am. Neg. Cases 193; Skinner v. Wilmington & W. R. Co., 128 N.C. 435; Murphy v. A. & W. P. Ry. Co., 190 Mass. 250; Shine v. N. Y., N. H. & H. Ry. (Mass.), 128 N.E. 713, Vol. 20, Negligence and Compensation Cases Annotated, page 280; Hunt v. Boston and Maine Elevated Ry., 201 Mass. 182, 87 N.E. 489; Creason v. Railway, 149 Mo.App. 228; Daniels v. Railway, 181 S.W. 599; Spurling v. Lumber Co., 220 S.W. 708. The evidence in this case shows that the injuries to plaintiff were an accident and therefore there was no liability on the part of the appellant. Tracey v. Boston Elevated Railroad, 217 Mass. 569, 105 N.E. 351. A railroad company is not bound to prevent the doors of its coaches, after being opened by others, from closing when its train is in motion. In such a case the rule of res ipsa loquitur does not apply. Shanghnessy v. B. & M. Railroad, 110 N.E. 962. The rules above announced are further supported in the case of Hines v. Boston Elevated Railroad, 198 Mass. 346, 84 N.E. 475. The case at bar is very much like the case of Hunt v. Boston Elevated Railroad, 201 Mass. 182, 87 N.E. 489, and to us it seems that the rules announced in that case are decisive of this one, and if so then the plaintiff's testimony did not make a case against the appellant. See, also, the case of L. Hommedieu v. Delaware, L. & W. Railway, 101 A. 933 (Supreme Court of Pennsylvania). (3) The court erred in giving instruction No. 3 on the part of the plaintiff. There was no evidence upon which to base it. The mere leaving the door of the toilet open was not negligence. The rule res ipsa loquitur does not apply. Negligence cannot be presumed from the fact that the toilet door was open. There was no evidence that the train was negligently and carelessly managed, and no evidence from which such negligence might be presumed. The instruction is erroneous from the further fact that the court, in substance, tells the jury that the defendant was guilty of negligence. Stumpf v. United Rys., 227 S.W. 854, and cases cited; Waller v. Graff, 251 S.W. 634, and cases cited; Allen v. Transit Co., 186 Mo. 433 and 434, and cases cited; Leimbach v. United Rys., 227 S.W. 848. See, also, cases under point 2.

BAILEY, J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.--

Defendant has appealed from a judgment in the sum of three hundred dollars ($ 300) obtained by plaintiff on trial before a jury for personal injuries received by plaintiff while a passenger on defendant's train. Respondent has not favored us with a brief. The petition in this case, after formal averments, charges that plaintiff, while riding in a passenger coach on defendant's train from St. Louis to Bourbon, Missouri, started to the toilet which was in the train on which plaintiff was riding, and that when he attempted to get in, he had to unfasten the coach door, put his hand on the inside of the door facing on the toilet entrance, the door to which was standing open, and that "defendant's agents and employees so negligently and carelessly handled the running of the train and managing of said train that said toilet door closed on plaintiff's hand and bruised and mutilated his hand so that blood-poison set in." It is further charged: "That defendant negligently and carelessly allowed said toilet door to stand open, which was dangerous when the train was swaying or rocking, as the door was closed on plaintiff's hand with great force and plaintiff was damaged thereby."

The answer was a general denial and a plea of contributory negligence. The evidence, which is very brief, indicates that plaintiff started for the toilet in the West end of the coach, the door to which was standing open, and that the coach door was open back over the entrance to the toilet and that he could not get in without pushing the coach door out; that he took hold of the coach door to push it out while the toilet door was swinging loose; that the train lunged around a curve and he grabbed the door jamb at the entrance to the toilet and the toilet door slammed shut, catching his fingers, causing the injury.

Plaintiff was permitted to testify over defendant's objection, that there was no felt or anything of that kind on the inside of the toilet door; also that there was no air service on that door. This is assigned as error. We believe the assignment of error well taken. No such negligence is pleaded. Plaintiff's petition charges negligence in only two particulars, namely: That defendant's agents and employees negligently and carelessly handled the running of the train and negligently and carelessly allowed the toilet door to stand open. The rule is well settled that where plaintiff chooses in his petition to base his cause of action upon certain specific acts of negligence, as in this case, the law places the burden of proving such negligence upon him and he may recover only upon the specific acts of negligence pleaded. [Pate v. Dumbauld, 250 S.W. 49; McManamee v. Mo. Pac. Ry. Co., 135 Mo. 440, 37 S.W. 119.]

Plaintiff was also permitted to testify as to the rate of speed the train was going. The testimony was competent, but plaintiff failed to prove the speed at which the train was run was negligent and under the view we take of the case, the evidence becomes immaterial.

Defendant assigned as error the refusal of the trial court to sustain defendant's demurrer to the evidence at the close of plaintiff's case. Defendant offered no evidence. We believe this question should be disposed of, although the cause might be reversed and remanded on the admission of improper evidence heretofore set out. The liability of a railroad for injury to a passenger caused by the sudden closing of car doors on such passenger's fingers has been considered in several cases. In Madden v. Mo. Pacific Railway Company, 50 Mo.App. 666, the plaintiff, while a passenger on defendant's train, arose from her seat when her station was called, but before she could get off, the train started again and then suddenly stopped on signal from a brakeman; she had at that time reached the door of the car and was standing with one foot on the threshold, the other on the platform; the sudden stoppage of the train caused her body to sway toward the door, against the jamb of which she placed her hand to steady herself; just at this time the car door closed and caught her fingers; she knew the door was not fastened and that it was open when she went through; that it was an ordinary door swung on hinges. The judgment was reversed on error in an instruction on the measure of damages. The court held, however, the sudden stoppage of the train, standing alone, was not negligence, but negligence in starting...