Ely v. St. Louis, Keokuk & Northwestern Ry. Co.

• Decision Date: 31 October 1882
• Citation: 77 Mo. 34
• Parties: ELY v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

77 Mo. 34

ELY

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Livingston Circuit Court.--HON E. J. BROADDUS, Judge.

REVERSED.

Chas. A. Winslow with Wells H. Blodgett and Prosser Ray for appellant.

Hale & Son for respondent.

NORTON, J.

This is an action for personal injuries to Josephine Ely, commenced in the circuit court of Carroll county, and moved by change of venue to Livingston, where upon a trial of the cause plaintiffs obtained judgment, from which defendant has appealed.

Omitting the formal parts of the petition, after alleging that said Josephine Ely was a passenger on defendant's train, it avers as the cause of action the following: That at a point in Chariton county on defendant's road near Salisbury, there had been, on the evening of September 5th, aforesaid, a flood in the water courses along the line of said road, which had undermined and weakened the road-bed, bridges and culverts on said road, whereby the same was rendered unsafe and dangerous for the passage of trains; that notwithstanding the condition of said road, defendant, by its servants, agents and employes, negligently and carelessly attempted to run the train, on which said Josephine had taken passage, over that part of said road which had been so rendered unsafe and dangerous; and when said train reached that part of said road, by reason of said injury to the track, culverts and bridges aforesaid, and the negligence and carelessness of defendant as aforesaid, and the giving away of the embankments, culverts and bridges as aforesaid, said train was thrown from the track, overturned and demolished, including the car in which said Josephine was riding; and that said Josephine was thereby, and by reason of the facts and acts aforesaid, greatly wounded, bruised and injured, and suffered severe pain in body and mind, and was made and is sick and sore and suffered severely, and has sustained lasting and permanent injury, for which damages in the sum of $20,000 is asked.

1. PRACTICE: instructions must relate to the pleadings: railroad.

Among other errors assigned by defendant is the action of the court in giving the following instruction: 4. It was the duty of the defendant to provide a road adapted to the safe passage of the trains over it; and if the jury believe from the evidence that there was any defect in the construction of the road-bed, or in the character of the ties or other material then in use on said road, which defect might have been discovered by the exercise of the care, caution, prudence, skill and foresight indicated in the first instruction, and which alleged defect contributed in whole or in part to the alleged accident, and the plaintiff was injured thereby, then they will find for the plaintiff.

This instruction is excepted to on the ground that it authorized the jury to find a verdict on a cause of action not stated in the petition, and we are of the opinion that the exception is well taken. It will be observed that after the declaration of a correct abstract principle, viz: “that it was the duty of defendant to provide a road adapted to the safe passage of trains over it,” the instruction predicates a right of recovery on a case not made by the petition, in this, that it tells the jury to find for plaintiff if they believed there was any defect in the construction of the roadbed or in the character of the ties or other materials then in use on said road, which defect contributed in whole or in part to the accident and injury to plaintiff. No such case as is made by the instruction is made in the petition. The cause of action stated in...