Hoeller v. St. Louis Public Service Co.
| Citation | 199 S.W.2d 7 |
| Decision Date | 21 January 1947 |
| Docket Number | 27066 |
| Parties | HOELLER v. ST. LOUIS PUBLIC SERVICE CO |
| Court | Court of Appeal of Missouri (US) |
'Not to be reported in State Reports.'
Mattingly Berthold, Jones and Richards and Lloyd E. Boas, all of St Louis, for appellant.
George W. Wellman and Miller & Landau, all of St. Louis, for respondent.
McCULLEN
This is an action to recover damages for personal injuries alleged to have been sustained by respondent while she was a passenger on a streetcar owned and operated by appellant. Respondent will be referred to hereinafter as plaintiff, and appellant as defendant. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant for the sum of $ 2500. After an unavailing motion for a new trial defendant appealed.
Plaintiff's petition, as amended, after certain formal averments in paragraph one thereof, alleges, in paragraph two, that on March 30, 1945, while plaintiff was a passenger on defendant's south-bound Grand Boulevard streetcar, and when the streetcar approached the intersection of Grand Boulevard and Utah Street at a place usually provided for the discharge of passengers, she attempted to alight therefrom, and while in the act of proceeding toward the exit door the streetcar 'was so carelessly and negligently managed, operated and controlled, that it was caused to be brought to a sudden, violent and unusual stop, and as a direct and proximate result thereof, plaintiff was caused to be thrown and to strike her head and body with great force and violence against the interior of the said streetcar, thus and thereby rendering the plaintiff unconscious and causing her to sustain the following severe and permanent injuries, to-wit:' Plaintiff's petition then sets forth, in paragraph three, numerous injuries and, in paragraph four, continues: 'Plaintiff states that all of the aforesaid injuries and conditions are permanent, and were caused as a result of the negligence and unskillfullness of the operator of the said streetcar in bringing the same to a sudden, violent and unusual stop as aforesaid.' The petition then alleges, in paragraph five, that by reason of said injuries and conditions plaintiff was caused to suffer great pain of body and anguish of mind, and was obliged to incur expenses for medical treatment, and that she will in the future be obliged to incur expenses for medical treatment, and that her ability to work, walk, move about and enjoy life in a normal manner has been seriously and permanently impaired and destroyed. In paragraph six plaintiff prays judgment against defendant in the sum of $ 5099, with costs.
The answer of defendant admits that defendant is and was a corporation with an office and place of business in the City of St. Louis, Missouri, and that it owned, operated and controlled the streetcar and street railway system as alleged in paragraph one of plaintiff's petition. The answer then specifically denies the allegations set out in paragraphs two, four, five and six of plaintiff's petition, and states that 'defendant can neither admit nor deny the allegations set out in paragraph three of said petition.' Paragraph three of the petition contains a recital of injuries alleged to have been sustained by plaintiff.
Before we discuss the points raised by defendant we will dispose of certain preliminary questions necessarily involved in the case.
The petition charges and there is substantial evidence showing that there was a sudden, violent stop of the streetcar which was the proximate cause of plaintiff's injuries. Defendant being a carrier of passengers for hire was under the duty to exercise the highest degree of care and skill which prudent men would use and exercise in a like business and under like circumstances to prevent injury to plaintiff as its passenger. Redmon v. Metropolitan Street R. Co., 185 Mo. 1, 84 S.W. 26, 105 Am.St.Rep. 558.
The evidence showing a violent stop of the streetcar, and that it was the proximate cause of plaintiff's injuries, made out a prima facie case for plaintiff. Maier v. Metropolitan Street R. Co., 176 Mo.App. 29, 162 S.W. 1041; Semler v. Kansas City Public Service Co., Mo.Sup., 196 S.W.2d 197.
Defendant contends that the trial court erred in giving and reading to the jury plaintiff's Instruction No. 1. Said instruction was divided into three paragraphs. In the first paragraph the jury were told that a common carrier of passengers is charged by law with the duty of using the highest degree of care and vigilance to safely transport those who become passengers on its cars, and that said duty continues not only during the actual transportation, but while a passenger is alighting from the streetcar. The second paragraph of the instruction told the jury that if they found and believed that plaintiff was a passenger on the streetcar in question and that as it approached the intersection of Grand Boulevard and Utah Street Plaintiff attempted to walk from her seat to the exit door for the purpose of alighting from the car at the regular stopping place, and that as she was so doing 'the defendant caused its streetcar to be brought to a sudden, violent and unusual stop, if so, and that the sudden, violent and unusual stop, if you so find, caused the plaintiff to be thrown against the interior of said streetcar and injured; and if you further find and believe that the sudden, violent and unusual stop, if you so find, was negligent under all the facts and circumstances in evidence, then your verdict will be in favor of the plaintiff and against the defendant.' The third paragraph of said Instruction No. 1 told the jury: 'In this connection you are further instructed that if you find and believe from the evidence that the defendant caused said streetcar to be brought to a sudden, violent and unusual stop, and that as a direct result thereof, plaintiff was thrown against the interior of said streetcar and she was injured, if you so find, then you are instructed that such facts, (if you believe them to be true) are sufficient circumstantial evidence upon which the jury may infer that the defendant was negligent, and you may so find, unless you find and believe from other evidence and from all the facts and circumstances in evidence that said sudden, violent and unusual stop, if any, of said streetcar was not due to the negligence of the defendant.'
Defendant, ignoring paragraph two of plaintiff's petition, points to paragraph four thereof and asserts that the petition alleged 'only specific negligence,' and that the instruction complained of erroneously submitted the case to the jury on general negligence; that there was no requirement in the instruction that the jury find that the operator in charge of the streetcar committed any act or acts which constituted negligence and directly caused plaintiff's injuries; that the instruction permitted plaintiff to have the jury presume that there was negligence without hypothesizing the acts or omissions of the operator of the car upon which plaintiff relied.
Plaintiff argues that her petition, including paragraph four, charges general negligence, and that even if it be conceded 'arguendo' that paragraph four does charge specific negligence, defendant's argument is fallacious in that it wholly ignores the averment of general negligence in paragraph two of the petition.
We are of the opinion that paragraph two of the petition, standing alone, unquestionably alleges general negligence for there is no averment therein of any specific act or omission of defendant as the cause of plaintiff's injuries. It does not even refer to the motorman or any particular servant or agent of defendant, but simply charges that the streetcar 'was so carelessly and negligently managed, operated and controlled that it was caused to be brought to a sudden, violent and unusual stop * * *.' However, we think there is no escape from the conclusion that paragraph four of the petition charges specific negligence in that it points out a particular servant of defendant, namely, the operator of the streetcar in question, and states precisely and exactly what he did that caused plaintiff's injuries. Said paragraph charges that all of plaintiff's injuries and conditions 'were caused as a result of the negligence of the operator of said streetcar in bringing the same to a violent and unusual stop, as aforesaid.'
We thus have before us a petition which clearly charges general negligence in paragraph two, and if that paragraph stood alone in the petition it would have authorized the giving of the instruction complained of. Plaintiff, however, was not content with that charge of general negligence. She went further and, in paragraph four, as shown above, made her charge specific by alleging that the operator of the car negligently brought it to a violent and unusual stop.
Plaintiff seeks to avoid the effect of the charge of specific negligence by referring to Section 42 of the new Civil Code, Laws Mo. 1943, p. 371, Mo.R.S.A. § 847.42, and argues that under said section a party may now set forth her entire claim alternately or hypothetically, either in one count or in separate counts. The pertinent part of said Section 42 provides: 'A party may set forth two or more statements of a claim * * * alternately or hypothetically, either in one count * * * or in separate counts * * *.' The provisions of Section 42, supra, were not, as we view them, ever intended to authorize a party to combine in one petition a charge of general negligence with one of specific negligence, and then have the court ignore the charge of specific negligence by submitting the case to the jury on general negligence. We are not at liberty to ignore either paragraph two or paragraph four of the...
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