Dutro v. Metropolitan Street Railway Company

• Citation: 86 S.W. 915,111 Mo.App. 258
• Parties: C. E. DUTRO, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 06 March 1905
• Court: Court of Appeals of Kansas

86 S.W. 915

111 Mo.App. 258

C. E. DUTRO, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 6, 1905

Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas for appellant.

(1) The court erred in the admission of evidence offered by plaintiff. (a) The allegations in the petition were specific and the evidence was not confined to the same. Ravenscroft v. Railway, 27 Mo.App. 617; McManamee v. Railway, 135 Mo. 447; Chitty v Railway, 148 Mo. 75; Bartley v. Railway, 148 Mo. 139; Oglesby v. Railway, 150 Mo. 177; Raming v. Railway, 157 Mo. 506; Feary v. Railway, 162 Mo. 96; Hesselbach v. St. Louis, 179 Mo. 524. (b) It was error to admit Cazzell's statement of what he told Barnes. Winters v. Railroad, 39 Mo. 476; Koons v. Railway, 65 Mo. 597; King v. Railway, 98 Mo 240; Smart v. Kansas City, 91 Mo.App. 594; Edwards v. Paving Co., 92 Mo.App. 225-6; Goble v. Kansas City, 148 Mo. 475. Likewise in permitting Cazzell and Glasgow to describe what they saw on other occasions. Nash v. Dowling, 93 Mo.App. 164, and authorities above cited. (2) The court erred in overruling the demurrer offered by defendant at the close of the plaintiff's evidence, and in overruling its peremptory instruction at the conclusion of the whole case. There was no evidence to sustain the issues tendered by the pleadings. McManamee v. Railway, 135 Mo. 447; Raming v. Railway, 157 Mo. 505; Chitty v. Railway, 148 Mo. 74-75; Feeback v. Railway, 167 Mo. 214-15; Gurley v. Railway, 93 Mo. 445; Obrien v. Steel Co., 100 Mo. 182; McCarty v. Hotel Co., 144 Mo. 397, 402; Conrad v. Railway, 89 Mo.App. 534; Waldhier v. Railroad, 71 Mo. 516; Schneider v. Railroad, 75 Mo. 295; Watson v. Railroad, 133 Mo. 246. (3) The court erred in giving and refusing instructions. Price v. Railway, 72 Mo. 414; Chitty v. Railway, 148 Mo. 75; Fitzgerald v. Hayward, 50 Mo. 523; Evans v. Railway, 106 Mo. 594; Price v. Railway, 72 Mo. 414; Waldhier v. Railway, 71 Mo. 514; Clarke v. Hammerle, 27 Mo. 70; Currier v. Downs, 7 Mo.App. 329; Bank v. Wilson, 29 Mo.App. 384; Land and Lumber v. Tie Co., 87 Mo.App. 167; Hite v. Railroad, 130 Mo. 141; Hook v. Railway, 162 Mo. 569; Sams v. Railway, 174 Mo. 53; Johnson v. Railway, 104 Mo.App. 588; McCarty v. Hotel Co., 144 Mo. 402. (4) The court erred in overruling the motion for a new trial. Foley v. Alkire, 52 Mo. 317; Spohn v. Railway, 87 Mo. 74; Brown v. Railroad, 101 Mo. 484; Hook v. Railway, 162 Mo. 569; Hite v. Railway, 130 Mo. 140; Stoetzele v. Swearingen, 90 Mo.App. 588; Haynes v. Trenton, 108 Mo. 123.

Rust & Campbell for respondent.

(1) The petition in case at bar states two distinct and separate grounds of recovery, and the one as to the out of repair condition of the turntable was fully proved. (2) The excluded evidence complained of was all afterwards admitted. (3) The evidence as to having had to hold the turntable with a crowbar, prior to the time of the accident, was introduced for the purpose of proving the allegations in the petition that defendant knew of its out of repair condition, and for this purpose was certainly competent, and besides on page 23 of the abstract it was admitted without objection. (4) The court's instruction 1 and defendant's 4 certainly sufficiently limit the issues. (5) If plaintiff's arm eighteen months after the accident was almost entirely useless, as both he and Dr. Miller testified, then certainly $ 2,500 cannot shock the conscience of the court, especially when we consider the evidence of the pain and suffering, and that five months after the accident it was still badly swollen, sore and tender, discolored and boggy.

OPINION

JOHNSON, J.

This is a suit for damages resulting from personal injuries alleged to have been sustained by plaintiff as the result of negligence of defendant. Plaintiff was a gripman employed by defendant and at the time of injury, August 20, 1901, was engaged in the discharge of the duties of such service upon a train of cable cars in operation upon the Fifteenth street line of defendant's street railway system in Kansas City. On arriving at the eastern terminus of the line he was directed by defendant to run his train upon a certain track called the emergency track which necessitated the crossing of a turntable in operation there in the handling of defendant's cars. The acts of negligence complained of are contained in the following averments in the petition ". . . that the defendant had negligently and carelessly for a long time allowed the turntable to be in such a dangerous condition and so out of repair that the gripslot on the turntable and the gripslot of said emergency track would not, when operated in the usual manner so fit or come together as to make the slot on one side exactly correspond with and be opposite to the slot on the other, as they should do. That an agent and servant of defendant, to-wit, Sidney Freeman, turned and set said turntable for the purpose of allowing plaintiff to take his car on to the emergency track as above set out, and that he so negligently and carelessly turned and set said turntable that the slot on the turntable did not fit and come opposite to the slot on the emergency track, and that by reason of such negligence on the part of Freeman, and by reason of the said dangerous and out-of-repair condition of the turntable, of which defendant knew, or by the exercise of reasonable care might have known for a time reasonably sufficient to have repaired the same, the slot in the turntable when the latter was turned and set by Freeman to allow plaintiff to take his car on to the emergency track, as aforesaid, did not fit, correspond with and come opposite to the slot on the emergency track as it should have done, by reason of all of which the grip on the car of which plaintiff was in charge was when plaintiff was so attempting to take said car across said turntable on to said emergency track caused to strike the slot rails of said emergency track thereby causing said gripcar to be stopped, " etc.

The answer was a general denial and a plea of contributory negligence. The trial resulted in a judgment for plaintiff and the case is here on defendant's appeal.

It will be observed the injury as alleged was the sudden stopping of the car caused by the appliance called the grip striking against the end of the slot rail of the emergency track instead of passing into the slot therein from the one between the rails on the moveable table. The reason assigned for the failure of proper operation upon this occasion was that the slot in the table track was not in line with that in the emergency track when the moving car reached the latter, which condition, as charged, was the direct result of the cooperation of two separate and distinct acts of negligence--the worn, defective and out-of-repair condition of the turntable and the negligent manner in which the operator thereof performed his duty. Plaintiff now concedes the operator was free from negligence. That issue was in fact abandoned by him at the trial and no evidence was offered in support thereof. The contest there was waged over the issue of negligence involved in maintaining the turntable in such a defective and out-of-repair condition that it was a dangerous appliance for the use to which it was devoted.

Practically all of the numerous points made by defendant here derive their plausibility from the construction placed by its counsel upon the petition, particularly the deductions drawn from the presence therein of the averment of two specific concurrent acts of negligence, one of which--the defective appliance--supports a cause of action; and the other--the negligence of a fellow servant of plaintiff--does not, for as to the latter the law imposing liability upon the master for the negligent acts of fellow servants has been held not to apply to street railways. Sams v. Railway, 174 Mo. 53.

A cause of action may be founded upon two separate acts of negligence which concurring in operation produce a joint result--the injury. The fact of concurrence precludes the supposition of any repugnancy between them, for acts which co-operate are necessarily in harmony else they would not work together. This somewhat trite observation is called forth by the assumption of defendant that under the allegations of the petition proof of one of the negligent acts would tend to disprove the other. This is not true either under the language of the averment which expressly charges that the acts were concurrent or from a consideration of the acts themselves, for it is inconceivable that the fact of the operator's negligence in operating the table, had such negligence existed, was necessarily inconsistent with the existence of such defects in that appliance as to render the placing and maintaining thereof in proper position more difficult and unstable than would have been the case had it been in proper repair. Both of these facts could have existed as alleged and might have joined in producing the injury. When two or more proximate causes contribute to produce an injury, each is sufficient within itself to support a cause of action for the recovery of the entire damage resulting and it logically follows that a plaintiff who pleads in his petition all of such claimed acts of negligence is entitled to recover upon proof of any one of them. Waller v. Railway, 59 Mo.App. 410; Banks v. Railway, 40 Mo.App. 458; McDermott v Railway, 87 Mo. 285. We therefore cannot give our assent to the proposition advanced by defendant that evidence showing the condition of the turntable "was inadmissible unless it was further shown that the carelessness and negligence of the operator of the turntable in setting his table both concurred in the...