Hamilton v. Metropolitan St. Ry. Co.

• Decision Date: 02 October 1905
• Citation: 89 S.W. 893,114 Mo. App. 504
• Parties: HAMILTON v. METROPOLITAN ST. RY. CO. et al.
• Court: Missouri Court of Appeals

89 S.W. 893

114 Mo. App. 504

HAMILTON v. METROPOLITAN ST. RY. CO. et al.

Kansas City Court of Appeals. Missouri.

October 2, 1905.

1. CARRIERS—DUTY TOWARDS PASSENGERS.

A common carrier, though not an insurer of the safety of its passengers, is held to the exercise of the highest degree of care in protecting them from injury.

2. SAME—NEGLIGENCE—PRESUMPTIONS.

The right of action which accrues to a passenger injured while being served by the carrier is founded in negligence, but from the character of the relation a presumption of negligence arises from the fact of injury, and throws the burden upon the carrier to establish the exercise of requisite care on its part.

3. SAME—ACTIONS FOR INJURIES—PLEADING.

A petition against a carrier for injuries to a passenger need not specify the negligent acts which caused the injury, but it is sufficient that it charge in general terms that plaintiff was injured while being carried as a passenger as the result of the negligence of the carrier.

4. SAME — ALLEGATIONS OF NEGLIGENCE — NECESSITY OF PROOF.

Where a petition against a carrier for injuries to a passenger unnecessarily alleges the specific acts of negligence complained of, plaintiff assumes the burden of proving the acts alleged, and must recover, if at all, on the negligence pleaded.

5. RAILROADS — ACCIDENTS AT CROSSINGS — PLEADING—ISSUES.

A petition against a street railway and a railroad for injury sustained by a passenger on a street car as the result of a collision between the street car and a railroad car, which alleged that defendants failed to keep a reasonable and necessary lookout and to observe the approach of the railroad car, authorized proof of the negligence of a watchman employed to warn street cars of the approach of railroad cars, as well as that of the servants in charge of the street car in failing to take proper precautions to apprise themselves of danger before sending the car across the railroad tracks.

6. SAME—NEGLIGENCE—SUFFICIENCY OF EVIDENCE.

In an action against a street railway and railroad for injuries sustained by a passenger on a street car as the result of a collision between the street car and a railroad car, there was evidence that the watchman employed by both the street railway and railroad had had an altercation with a switchman employed by the railroad as to their respective duties in the matter of giving crossing signals, and that on the occasion of the accident the watchman refused to heed signals of the switchman, and the switchman refused to notify the watchman of the approach of the railroad car and gave signals direct to the motorman. Held, that there was sufficient evidence of negligence to take the case to the jury as against both defendants.

7. SAME — INSTRUCTIONS — ENLARGEMENT OF PLEADINGS.

A petition against a street railway and railroad for injuries to a passenger in a street car, resulting from a collision between the street car and a railroad car, alleged that defendants were guilty of negligence in failing to keep a necessary lookout and observe the approach of the railroad car. The court charged generally to find for plaintiff, if the defendant street railway failed to use the highest degree of care toward plaintiff, or if the defendant railroad failed to observe ordinary care, and such failure resulted in or contributed to plaintiff's injury. Held, that the charge was erroneous, in that it failed to condition the right of recovery on the establishment of the negligence charged in the petition.

8. TRIAL—INSTRUCTIONS—CURE BY CONFLICTING INSTRUCTIONS.

In an action against a carrier for injuries to a passenger, a charge erroneously permitting a recovery on the establishment of negligence of any kind on defendant's part, regardless of the issues raised by the pleadings, was not cured by another charge requiring a finding for defendant unless it was negligent in some manner charged in the petition.

Appeal from Circuit Court, Jackson County; Jno. W. Henry, Judge.

Action by Isaac W. Hamilton against the Metropolitan Street Railway Company and another. From a judgment for plaintiff, defendants appeal. Reversed.

Rehearing denied November 6, 1905.

John H. Lucas and Scarritt, Griffith & Jones, for appellants. T. A. Witten and Roland Hughes, for respondent.

JOHNSON, J.

Action to recover damages for personal injuries sustained by plaintiff in a collision. On August 31, 1901, plaintiff was a passenger upon a car in service for the carriage of passengers on one of the lines of street railroad operated by the defendant street railway company in Kansas City. At the time of the injury the car was north bound on Lydia avenue, and was crossing the yards of the defendant railroad company. The street car line, at this place, crosses at a right angle some 15 railroad tracks, 14 of which belong to the defendant railroad company, and one to the Missouri Pacific Railway Company. When the street car approached the crossing several freight cars were standing upon one of the Chicago & Alton tracks; the east end of the string being immediately west of the sidewalk line. West of these cars, on the same track, a number of freight cars were being slowly moved eastward by an engine, to couple with the stationary cars mentioned. A watchman, jointly employed by both defendants and the Missouri Pacific company, was on duty to control the passage of cars and other vehicles over the crossing. The street car, propelled by electricity, was in charge of a motorman and conductor. One of the switchmen, employed by the defendant railroad company, was assisting in the switching then in progress, and was standing in the street near the east end of the cars. The motorman stopped his car at the entrance to the crossing. Receiving a signal to proceed from the watchman, he started forward, but before reaching the track upon which the freight cars stood stopped in obedience to a signal from the switchman. Thereupon the watchman again signaled to him to cross, which he proceeded to do. In going over the railroad tracks in question the rear end of his car was struck and derailed by the freight cars, which in the meantime had been set in motion in the process of being coupled with the moving train. The street car was not damaged, and was carried out of danger by its own forward motion. Plaintiff, who was seated at the time, claims that the jar caused by the collision pitched him forward against a seat with enough force to rupture him. He recovered judgment against both companies in the sum of $1,400. Specific acts of negligence are charged in the petition against each defendant. The street railway company is alleged to have "carelessly and negligently operated and conducted said car across the tracks * * * without then and there having a watchman, and without keeping a necessary and reasonable lookout, and * * * failing to observe the approach of the freight car, and * * * failed to notify the agents and servants of its co-defendant of its approach," etc. And the defendant railroad company is alleged, in substance, to have negligently failed in these particulars: To maintain a watchman, and to warn the street car company of the...