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

• Decision Date: 15 December 1908
• Citation: 114 S.W. 561,134 Mo. App. 392
• Parties: DALTON v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

114 S.W. 561

134 Mo. App. 392

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

St. Louis Court of Appeals. Missouri.

December 15, 1908.

Rehearing denied December 29, 1908.

1. JUSTICES OF THE PEACE (§ 91)—PLEADINGS —COMPLAINT—STATEMENT OF CAUSE OF ACTION.

Under Rev. St. 1899, § 3852 (Ann. St. 1906, p. 2135), requiring only a statement of the facts constituting a cause of action begun in a justice's court, no formal pleadings being required, any statement of a cause of action begun in such court is sufficient, if it apprises the opposite party of the nature of the action and is sufficient to bar another action, and the fact that the statement is overcharged with details or redundant does not destroy its efficacy as a complaint, if enough is left, after rejecting the unnecessary matter, to state a cause of action and bar another action.

2. STREET RAILROADS (§ 111)—COLLISIONS WITH ANIMALS — NEGLIGENCE—PLEADING— ISSUES, PROOF, AND VARIANCE.

In an action against a street railroad for running into and injuring plaintiff's horse, plaintiff charged negligence generally, and also specific acts of negligence. Held, that evidence that by the exercise of ordinary care the motorman could have seen the horse and stopped the car in time to have avoided the collision was inadmissible under the general allegation of negligence.

3. EVIDENCE (§ 492)—OPINION EVIDENCE— WEIGHT—COMPETENCY.

That a witness did not estimate the speed of a passing car at the moment he saw it, but formed his estimate afterwards, while it might affect the weight of his evidence, did not render it incompetent.

4. APPEAL AND ERROR (§ 586)— ABSTRACTS.

Where plaintiff's abstracts, after showing that the bill of exceptions was filed, stated that the bill contained recitals of formal proceedings at the trial, that defendant pleaded a general denial, etc., following which statement the name of each witness was given, together with what purported to be his testimony in full, the bill concluding with the statement that this was all the evidence introduced by plaintiff in chief, and it appeared that at this stage of the proceedings a demurrer to plaintiff's evidence was sustained, the appellate court could not find that the abstracts did not contain all the evidence.

Bland, P. J., dissenting in part.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by Henry C. Dalton against the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Fred S. Hall and R. B. Haughton, for appellant. Boyle & Priest, for respondent.

BLAND, P. J.

The action was begun before a justice of the peace in the city of St. Louis. Plaintiff recovered a judgment before the justice, and defendant perfected its appeal to the circuit court, where on a trial anew plaintiff was forced to take a nonsuit. An amended complaint was filed in the circuit court, in which, after preliminary matters, it is stated: "That on the 23d day of March, 1907, a bay horse, about nine years old, by the name of `Jim,' belonging to plaintiff, was rightfully on said track of defendant, near said intersection, and, while so on said track, defendant carelessly and negligently caused one of its said cars going westwardly to run upon and violently strike said horse and knock him to the ground with great force and violence; that said carelessness and negligence of defendant were gross, reckless, heedless, with entire want of care, and in utter disregard of the safety of said property of plaintiff, in this, that the motorman, being the agent and servant of the defendant in charge of and running said car, caused said car, as aforesaid, to run at very great speed upon and along said Manchester avenue and up to where said horse then was, and, while said car was so running, he, the said motorman, was looking in a direction different from that in which said car was running, was not watching as to what might be then in front of said car, and was so absorbed in what he saw in said different direction that he did not notice loud shouts and violent gesticulations warning him of danger." On the trial plaintiff's evidence showed: That his horse suffered a sunstroke and fell upon defendant's railroad track, and that after the horse got on his feet he was pulled off the track, but staggered back between the rails, and before he could be pulled off the track one of defendant's cars struck and injured him. The collision took place on Manchester avenue, in the city of St. Louis, and the evidence shows that the conductor in charge of the car was not looking ahead along the track, but was looking off to one side and was apparently oblivious to the fact that the...