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

• Decision Date: 06 June 1921
• Docket Number: No. 22371.,22371.
• Parties: ESSTMAN v. UNITED RYS. CC. OF ST. LOUIS.
• Court: Missouri Supreme Court

232 S.W. 725

ESSTMAN v. UNITED RYS. CC. OF ST. LOUIS.

No. 22371.

Supreme Court of Missouri, Division No. 1.

June 6, 1921.

Motion for Rehearing Denied July 11, 1921.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by Abraham Esstman, by his next friend, Fannie Esstman, against the United Railways Company of St. Louis. From a judgment for defendant, plaintiff appeals. Affirmed.

See, also, 216 S. W. 526; (App.) 220 S. W. 508.

Sterling P. Bond, of St. Louis, for appellant.

T. E. Francis and George T. Priest, both of St. Louis, for respondent.

GRAVES, J.

This is the second appearance of this case in this court. The opinion on the first hearing here will be found in 216 S. W. 526. The facts of the present appeal could well be gathered from that opinion.

Plaintiff (who sues by next friend) was a child of four years at the time of his injury. He was struck and run over by a street car belonging to defendant, and at, the time in motion on High street, in the city of St. Louis, between Biddle and Carr streets.

The petition is general in terms, and simply avers that plaintiff was struck and run over by defendant's car. It does not indicate clearly whether the pleader meant to aver that the child was on the track in front of the car or not. It charges a failure to ring the bell or gong, and invokes the vigilant watch ordinance of the city of St. Louis. The answer was a simple general denial.

Upon the first trial the verdict of the jury was for defendant, and for errors stated in our opinion the judgment on such verdict was reversed, and the cause remanded. The pleadings remained the same, and the facts in evidence are practically the same. In legal effect they are the same as upon the former hearing here.

The evidence for plaintiff and that for defendant are in hopeless conflict. Plaintiff's witnesses say that the child started from the west side of the street to go to its home on the east side of the street, and was struck by the fender of the car, knocked down, and run over by the front wheels of the car. Defendant's witnesses say that the child left the east side of the street for the west side thereof, and ran into the car abut its middle, and was run over by the rear wheels of the car. Plaintiff's first instruction was just as general as was his petition as to the position of plaintiff when he came in contact with the car. Counsel for him could well argue under the instruction that it made no difference which list of witnesses was believed, the plaintiff should recover. Again the verdict and judgment was for the defendant, and plaintiff has appealed. Further details of facts can be gathered from our former opinion, and what we shall detail in the course of this opinion, in the disposition of the points made upon the appeal.

Appellant complains first of the action of the trial court in refusing instruction No. 2 asked by him. This instruction reads:

"The court instructs the jury that if you find and believe from the evidence that plaintiff, Abraham Esstman, was at the time of the injury mentioned in the petition under four years of age, then he cannot, because of his tender years, be guilty of or charged with negligence or carelessness in respect to the injury in this case, as no negligence can be charged to so young a child."

It must be noted that no issue of contributory negligence was raised by the pleadings in this case. The only issue was the alleged negligence of the defendant, its agent, or employee, the motorman. The general rule is that instructions should be confined to the issues made by the pleadings. It was (upon the matter of contributory negligence) early so announced by Thompson, J., in Keitel v. St. Louis Cable Ry. Co., 28 Mo. App. loc. cit. 663, whereat he said:

"It may not be out of place to observe that the only error committed by the trial court touching the question of contributory negligence was the error of submitting it to the jury at all, since it was not pleaded. It is only where a conclusive inference of contributory negligence arises out of the plaintiff's own testimony or that of his witnesses, either on their direct or their cross-examination, that contributory negligence will bar his recovery, although not pleaded. Milburn v. Railroad, 86 Mo. 104; Buesching v. Gas Light Co., 73 Mo. 219, 229. In other cases contributory negligence is an affirmative defence, to be pleaded and proved by the defendant, in order to entitle him to have it submitted to the jury (Donovan v. Railroad, 89 Mo. 147, 150; Matthews v. Railroad, 26 Mo. App. 75, 83; Fell v. Coal Mining Co., 23 Mo. App. 217); and if it is not so pleaded and proved, and is nevertheless submitted to the jury, the case falls within the rule that it is error to submit to the jury an issue not made by the pleadings."

This court has especially approved the foregoing excerpt. White v. Railroad, 250 Mo. loc. cit. 483, 157 S. W. 593. The instant case was not tried upon the theory that this child was guilty of any negligence, or could be guilty of any negligence. The theory of the defense was, as disclosed by the evidence, that this child was on the east side of the street in perfect safety when he was observed by the motorman, and was not then in Motion; that there was a passing vehicle which obstructed the view of the motorman, and when he next saw the child he came out from behind this vehicle, and, before the motorman could stop the car, the child collided with the car, and was knocked down, and run over. Defendant (so far as the record shows) asked no instruction on the negligence of the child. Contributory negligence was not in the case at all, except as it was being dragged into it by this refused instruction. The evidence offered by defendant (and believed by the jury) was offered to dispute the charge of negligence against the motorman. It was not (and under defendant's answer could not have been) offered on the theory of contributory negligence. That our courts have announced the abstract doctrine that a child four years old cannot be charged with contributory negligence does not authorize the use of such abstraction in an instruction where the issues made by the pleadings do not require such an instruction. The cases relied upon by appellant are either cases where there was a plea of contributory negligence, or cases where, in the discussion of other matters, the legal abstraction is mentioned. In Holmes v. Railroad, 190 Mo. loc. cit. 107, 88 S. W. 623, cited by appellant, there was a plea of contributory negligence lodged against a child of eight years. The only case cited at all in line is Heidmann v. Kleine, 210 S. W. loc. cit. 915, from the St. Louis Court of Appeals.

The Kleine Case arose in a justice's court, and for defendant there were no formal pleadings. The defendant (appellant) complained of an instruction like the one refused here. The court held that it was not reversible error, but goes no further. It had just previously discussed the character of pleadings authorized in courts of this grade.

No case in this state can be found wherein it is ruled that an instruction upon contributory negligence should be given (and that there is error in refusing such) where the pleadings do not make an issue of contributory negligence. Mere legal abstractions have no place in instructions. It is true that we have said that a child four years old cannot be guilty of contributory negligence, but this does not mean that such holdings should be the basis for an instruction, where contributory negligence is not an issue in the case. The refused instruction raised a false issue in the case, and was properly refused.

It is true that we have ruled that, where Plaintiff's evidence shows that he was guilty of contributory negligence as a matter of law, a demurrer to the evidence is properly given, although defendant has not pleaded contributory negligence. This is upon the theory that the evidence for plaintiff has destroyed his right of recovery. His own evidence disclosed the absence of a meritorious case. Sissel v. Railroad,, 214 Mo. loc. cit. 527, 113 S. W. 1104, 15 Ann. Cas. 429, and cases therein cited. To use the language of Henry, C. J., in Milburn v. Ry. Co., 86 Mo. loc. cit. 109:

"Contributory negligence was not pleaded, but, when the plaintiff, in making out his case, clearly establishes that the injury he complains of was as much the result of his own negligence as that of the party of whose negligence he complains, can he recover? The ground of his complaint is that the injury was occasioned by the negligence of the defendant, and, if his proof shows that his own negligence directly contributes to produce the injury, he disproves the case alleged."

But this rule is bottomed upon a failure to make a case, and in no way conflicts with the well-settled rule that the instructions must be confined to the issues made by the pleadings. As said, supra, the instruction was rightfully refused.

II. No formal assignment of errors appears in appellant's brief. This, however, is not a prerequisite here, provided the errors are duly charged under the head of points and authorities in the brief. The second point made in the brief suggests that the negligence of the parents (if any) Could not be imputed to the child in this action. The question is not in the...