Graefe v. St. Louis Transit Co.

• Citation: 123 S.W. 835,224 Mo. 232
• Parties: A. H. W. GRAEFE, Appellant, v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY
• Decision Date: 14 December 1909
• Court: United States State Supreme Court of Missouri

123 S.W. 835

224 Mo. 232

A. H. W. GRAEFE, Appellant, v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY

Supreme Court of Missouri, Second Division

December 14, 1909

Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.

Affirmed.

R. F Ralph, Geo. W. Wolff and Barclay & Fauntleroy for appellant.

(1) There was no error in the 6th instruction given for the plaintiff. Davenport v. City, 108 Mo. 478; Railroad v. Smith, 226 Ill. 178, 80 N.E. 716; McKeon v. Railroad, 43 Mo. 405; Matthews v Elevator Co., 59 Mo. 494. (2) The plaintiff's 3d and 5th instructions stated injuries for which defendants were liable if the jury found the facts as therein recited. It is entirely proper when injuries have been sustained by a plaintiff for some of which defendant in certain aspects of the facts may be liable and for others not liable, to state the law for the recovery of damages in terms such as appear in the plaintiff's 6th instruction in this case. Davenport v. City, 108 Mo. 478; Stavinow v. Ins. Co., 43 Mo.App. 513; Brown v. Railroad, 104 Mo.App. 696; Railroad v. Parker, 56 S. E. (Ga.) 618; Donk Co. v. Thil, 228 Ill. 233, 81 N.E. 857; Gibler v. Assn., 101 S.W. 40; Bailey v. Fixture Co., 54 Mo.App. 50; Railroad v. Zink, 229 Ill. 180, 82 N.E. 283. (3) On the merits of the cause of action, the instructions as to liability for the sudden start of the car (in the circumstances described in the 1st instruction) we regard as beyond danger of any attack. Jennings v. Railroad, 99 Mo. 348; Maguire v. Railroad, 103 Mo.App. 459; Dreyfus v. Railroad, 102 S.W. 53. (4) The 3d instruction for plaintiff is fully supported by the evidence. The imputation of error advanced by respondent as to plaintiff's 3d instruction is founded on the assumption that there was no evidence to show that plaintiff's injuries (or any of them) were caused by his being dragged after the motorman could have stopped the car by the exercise of reasonable care. Plaintiff was unnecessarily dragged twenty or twenty-five feet, according to the facts in evidence. This phase of the case is presented by the 3d instruction for plaintiff which is founded on a trite and familiar precept of our American and English law, namely: that where a negligent act contributes directly to produce an injury, the party responsible for that act is "liable for the whole damage." Shearman & Redf., Negligence., sec. 31, quoted with approval in Benjamin v. Railroad, 133 Mo. 291. See, also, Holmes v. Railroad, 207 Mo. 149. If the negligent and unnecessary dragging of plaintiff "directly contributed to cause the injuries" to plaintiff as the jury found under the third instruction, defendant was liable for all the damage ensuing therefrom. This rule is nowhere more positively announced and declared than by this court in Vogelgesang v. City, 139 Mo. 137. If plaintiff's leg was injured by acts of which the negligent act of dragging him formed part, that defendant cannot successfully claim a division of responsibility; it is responsible for all the damages to which its negligence directly contributed in any part. Deschner v. Railroad, 200 Mo. 334; Bragg v. Railroad, 192 Mo. 360; Brash v. St. Louis, 161 Mo. 433; Riska v. Railroad, 180 Mo. 195; Labatt, Master & Serv., sec. 813; Harrison v. Light Co., 195 Mo. 623. The third instruction when read fully will be seen to declare that if plaintiff suffered any injury by being unnecessarily dragged in consequence of defendant's neglect the latter is liable for the consequences of that neglect. This issue is entirely apart from that of the extent of the damage thereby caused. And the rule as expressed in this charge or instruction is entirely sound. Weitzman v. Railroad, 53 N.Y.S. 909; Dyche v. Railroad, 79 Miss. 361; Smithwick v. Hall Co., 59 Conn. 261; Railroad v. Hill, 86 S.W. 303; Railroad v. O'Donnell, 207 Ill. 408; Railroad v. Craft, 69 F. 124; Rapp v. Transit Co., 190 Mo. 161. (5) The third point of attack, is again aimed at our 3d instruction. It is claimed that it permits recovery for phases of negligence not pleaded, because the petition is said to aver that plaintiff was a passenger and also that he was unnecessarily dragged. These "theories" are claimed by defendant to be "repugnant." The plaintiff, we reply, was not bound to prove every fact alleged; but only enough to create a cause of action. If plaintiff was a passenger (as his evidence tended to prove) he was then entitled to receive and claim a higher degree of care from defendant than he would be entitled to demand if (as defendant claimed) he had not become a passenger. Plaintiff was entitled to submit both states of fact, and no move was even made by defendant below to suggest any election or other objection to the procedure followed by the learned trial judge on this point. Plaintiff was entitled to submit both phases of the facts, as alleged most clearly in the petition; and there was no error in so doing. Waechter v. Railroad, 113 Mo.App. 270; White v. Railroad, 202 Mo. 539; Sluder v. Railroad, 189 Mo. 107; Rapp v. Railroad, 190 Mo. 144; Hudson v. Wright, 204 Mo. 412. (6) The 3rd instruction is again challenged for using the word "contributed," as it occurs therein. The decision cited by learned counsel for defendants supposably to support that contention of respondent, is the Harper case, 187 Mo. 575, which holds that unless there is a causal connection shown between negligence alleged and the injury, no recovery of damages for the injury should be sustained. We do not deny that proposition. We point, however, to the evidence in this case to sustain the ruling of the learned trial judge whose instructions submitted to the jury the facts showing a direct connection between the negligent dragging and the injury of plaintiff. Newcomb v. Railroad, 182 Mo. 687; Harrison v. Light Co., 195 Mo. 623; Fledderman v. Transit Co., 113 S.W. 1143; Vogelgesang v. City, 139 Mo. 136.

Boyle & Priest and T. E. Francis for respondents.

(1) Plaintiff's instruction 6 defining the measure of damages, is erroneous because it allowed the jury to award plaintiff damages for nurse hire, when there was no evidence upon which to base it. Gibler v. Railroad, 203 Mo. 208; Cobb v. Railroad, 149 Mo. 609, 530; Gibney v. Transit Co., 204 Mo. 704; Robertson v. Railroad, 152 Mo. 382; Morris v. Railroad, 144 Mo. 500; Nelson v. Railroad, 113 Mo.App. 663; Duke v. Railroad, 99 Mo. 349; Smith v. Railroad, 108 Mo. 243. (2) Plaintiff's instruction 3 is erroneous because it permitted the jury to find for plaintiff, if they believed that after plaintiff lost his balance and fell, the "motorman failed to use ordinary care to stop the car and avoid further injury to plaintiff," when there was no evidence tending to show that plaintiff's alleged injuries, or any of them, were caused by his being dragged, after the motorman could have stopped the car. Oglesby v. Railroad, 177 Mo. 272; Warner v. Railroad, 178 Mo. 125; Masterson v. Transit Co., 204 Mo. 507. (3) Plaintiff's instruction 3 is erroneous because it permitted the jury to find for plaintiff on an alleged act of negligence not pleaded, and indeed repugnant to the assignments of negligence pleaded in the petition. (a) The petition counts on the theory that plaintiff was a passenger. (b) The instruction submitted the case to the jury on the theory that plaintiff was not a passenger but a trespasser. Schepers v. Railroad, 126 Mo. 665. (c) These respective theories are repugnant to each other. Raming v. Railroad, 157 Mo. 509; Behen v. Transit Co., 186 Mo. 430; Drolshagen v. Transit Co.. 186 Mo. 258. (d) It was error to submit the case to the jury on negligence not only not pleaded in the petition, but actually repugnant to the negligence therein pleaded. Yall v. Gillham, 187 Mo. 393; Chitty v. Railroad, 148 Mo. 63; Hesselbach v. St. Louis, 179 Mo. 505. (4) Instruction 3 given for plaintiff is erroneous because it permitted the jury to find for plaintiff if they believed the negligence therein defined "contributed" to cause plaintiff's injuries, instead of directing them, as it should have done that they could not find for plaintiff unless they believed the negligence was the proximate cause of the injury. Harper v. Terminal Co., 187 Mo. 575.

OPINION

FOX, J.

This action was brought in the city of St. Louis against the St. Louis Transit Company to recover for personal injuries received by plaintiff while trying to board a street car. A change of venue was awarded to St. Louis county, where, by amended petition, the United Railways Company was also made a party defendant.

The plaintiff's amended petition, in so far as is necessary to the determination of this appeal, is as follows:

"On November 15, 1901, the plaintiff wishing and intending to become a passenger for hire on one of defendants' said electric cars to be carried from the intersection of Bell and Garrison avenues in said city to another point upon defendants' said line in said city of St. Louis signalled for that purpose to the motorman upon and in charge of a south-bound car of defendants' said Easton Avenue line to stop said car on Garrison Avenue, near the southwest corner of Bell and Garrison avenues, which was then a usual place where defendants received passengers on said cars. Said signal was given by plaintiff as said car approached from the north said southwest corner of Garrison Avenue and Bell Street in ample time to permit said car to come to a full stop opposite said corner. Plaintiff was at the time standing near said car track near said corner and at a convenient distance from said car to enter the same, and was ready and willing to pay on demand the compensation required by defendants for carriage on defendants' said line; and in response to said signal of plaintiff said car was caused to...