Gannaway v. Pitcairn

• Decision Date: 05 October 1937
• Docket Number: No. 24050.,24050.
• Citation: 109 S.W.2d 78
• Parties: GANNAWAY v. PITCAIRN et al.
• Court: Missouri Court of Appeals

109 S.W.2d 78

GANNAWAY v. PITCAIRN et al.

No. 24050.

St. Louis Court of Appeals. Missouri.

October 5, 1937.

Rehearing Denied October 19, 1937.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be reported in State Reports."

Action by Charles H. Gannaway against Norman B. Pitcairn and another, as receivers of the Wabash Railway Company. Judgment for the plaintiff, and defendants appeal.

Affirmed.

Homer Hall, of St. Louis, for appellants.

S. E. Garner, S. R. Redmond, and Henry D. Espy, all of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries alleged to have been sustained by respondent, hereinafter called plaintiff, on February 2, 1934, when plaintiff was riding on one of defendants' trains near Mexico, Mo. The cause was tried before the court and a jury and resulted in a verdict and judgment in favor of plaintiff in the sum of $1,250. Appellants, hereinafter referred to as defendants, bring the case to this court by appeal.

Plaintiff's petition alleges that on or about the 2d day of February, 1934, "while he was riding on one of defendant's trains at or near Mexico City, in the State of Missouri, and while in the exercise of due care for his own safety, he was accosted by one of defendant's brakemen on said train; that said brakeman, while acting within the scope and course of his duties as the agent, servant and employee of defendant, did with force kick, hit, strike and knock plaintiff off of said train while the said train was in motion and onto the ground and causing plaintiff to be injured as follows."

The petition then sets forth numerous injuries alleged to have been sustained by plaintiff. The answer of defendants was a general denial coupled with an allegation "that if plaintiff was upon the car, as alleged in his petition, he was a trespasser and climbed upon and took hold of said car wrongfully and in violation of law. * * *" Plaintiff's reply was a general denial.

Plaintiff testified that on the day in question he and Bennie Johnson, another colored man, left Wellsville, Mo., where they lived, and went to Mexico, Mo., to get their hair cut, there being no colored barbers in Wellsville. When they were ready to return to Wellsville, they went to the defendants' railroad station in Mexico intending to buy railroad tickets to return on defendants' train. When they arrived at the station, the train was pulling out from the station. Plaintiff and Johnson both ran to catch the train and got on the back end of it while it was running about twenty-five or thirty miles an hour. It was an eastbound train and both plaintiff and Johnson got on the lower step on the north side thereof at the rear of the last coach. The train slowed down but they could not get in the train. Plaintiff took hold of a rod or handhold with his right hand and with the other took hold of one of the pickets of a "kind of a little gate that runs around on the back end of the train." Johnson took hold of the handhold on the other side of the steps but both "couldn't stand there on the step" so Johnson "got down and got up under this trap door," plaintiff still holding on to the platform. The trap door extended from the platform of the car over the steps.

Plaintiff further testified that, while he was in the position described, he saw a man coming through the train who had on a uniform; that he read the word "Wabash" on the buttons on the man's uniform; that the man was coming out of the vestibule of the rear of the train; that it was then about half past six at night and it was dark; that the man had a stick and a lantern in his hand. The man mentioned was referred to in plaintiff's testimony as the brakeman. Plaintiff further testified that the brakeman came to the place where plaintiff was standing and said: "Get off this train"; that plaintiff said to the brakeman: "We want to pay our way," and that the brakeman at that time "just hauled off and hit me down across the head." He testified that he was knocked off the train by the brakeman; that the blow across his head knocked him senseless and he fell right straight back and broke his leg; that he was rendered unconscious and was later sent in an ambulance to the Audrain Hospital at Mexico, Mo., where he remained for a period of five weeks under the treatment of Dr. Harrison, a physician of the railroad company; that he sustained a broken leg and a fractured ankle; that his head wounds required twelve stitches to be taken in his scalp.

Plaintiff's evidence tended to show that right after he and Johnson got on the train they saw they could not both stand on the step and that Johnson got under the trap door and sat down on the step underneath it; that plaintiff was knocked off the train just as Johnson got under the trap door and sat down on the step.

Bennie Johnson testified on behalf of plaintiff that he got on the steps of the rear car of the train just ahead of plaintiff and that he had hold of just one rod. That was why, he said, he got under the trap door; that his foot was on the bottom step on which plaintiff was standing; that he did not know when plaintiff got off the train or what had happened to plaintiff; that he called to plaintiff and plaintiff did not answer, and shortly thereafter a man struck at him with a club three times and immediately thereafter the trap door was raised and the man was standing up there and told him to come out; that he came out and the man said: "`Who is that guy with you?' and I told him Gannaway. I asked him where he was. He says, `I put him off.' He said, `Don't you know I am supposed to put off guys that beat their way on this train?' and I told him we wasn't trying to beat our way—goes on and explained to him. He says, `Come on inside.' So he started on inside. He told me to take my hat off; I took my hat off."

Johnson further testified that the conductor of the train collected his fare for the trip to Wellsville after he was taken inside the train by the brakeman; that he got off the train at Wellsville and that he saw plaintiff the next day in the hospital at Mexico where he visited plaintiff several times. He further testified that, while the brakeman was talking to him, the brakeman appeared nervous and asked him who the other fellow with him was and he told the brakeman "Gannaway."

Defendants contend that plaintiff's petition fails to state facts sufficient to constitute a cause of action and that the court erred in overruling their motion in arrest of judgment.

In support of this contention, defendants argue that plaintiff's petition does not allege that he was a passenger or had any right to be riding on defendants' train and does not allege that defendants' brakeman struck plaintiff wrongfully, unlawfully, maliciously, or with unnecessary force or violence, and insist that without such allegations the petition does not state a cause of action.

We have heretofore set forth some of the allegations of plaintiff's petition and deem it unnecessary to restate them here. In the latter part of his petition plaintiff allged that his injuries were permanent and that they are "a direct result of the wilfullness of the defendant, its agent, servant and employee while acting within the scope and course of his duties as the brakeman, agent, servant and employee of the defendant."

Defendants did not file any demurrer to the petition nor did they offer any objection to the introduction of evidence on the ground that the petition was insufficient. The first time any objection was made on that ground was when they filed their motion in arrest of judgment.

It is no doubt the law in this state that a defendant has the right to object for the first time even in an appellate court that the petition of a plaintiff does not state a cause of action. McGrew v. R. Co., 230 Mo. 496, 132 S.W. 1076; Greer, Adm'r v. R. Co., 173 Mo.App. 276, 158 S.W. 740. And, also, such an objection to a petition may be raised in the trial court after trial by a motion in arrest of judgment. After a trial and verdict, such an objection will not be viewed in the same light by the courts as it is when raised by demurrer to the petition before trial. There is an important difference between a petition in which a cause of action is defectively stated and one which states no cause of action at all. If a petition wholly fails to state a cause of action, an objection to it on that ground, if found to be correct, will be sustained even though made after trial or in the appellate court. However, even though a petition be defective in its statement of a cause of action, yet, if it appears after trial and verdict that the verdict could not have been returned or the judgment rendered without proof of the matter omitted from the petition, the defect will be held to have been waived and the motion in arrest of judgment will not be sustained, nor will an objection on that ground be upheld in an appellate court. Frost v. Pryor, 7 Mo. 314; Palmer v. Hunter, 8 Mo. 512; Shaler v. Van Wormer, 33 Mo. 386; Richardson et al. v. Farmer et al., 36 Mo. 35, 88 Am.Dec. 129.

It is also well-settled law in this state that, if parties try a cause as though the petition of the plaintiff alleged facts necessary to authorize a recovery and the evidence to prove such facts is admitted without objection, the petition, on appeal, will be treated as amended to conform to the proof. Twentieth Century Machinery Co. v. Bottling Co., 273 Mo. 142, 200 S. W. 1079; Flint v. Sebastian, 317 Mo. 1344, 300 S.W. 798; Robinson v. Commonwealth Cas. Co., 224 Mo.App. 969, 27 S. W.(2d) 49; Ridenhour v. Oklahoma Contracting Co. (Mo.App.) 45 S.W.(2d) 108; Ford v. Wabash R. Co., 318 Mo. 723, 300 S.W. 769; Swift v. St. Louis-San Francisco Ry. Co. (Mo.App.) 15 S.W.(2d) 964.

In the case at bar defendants joined issue by filing a general denial, went to trial, and were permitted to introduce all the evidence they could have introduced had there been no...