Hoffman v. People's Motorbus Co. of St. Louis

• Decision Date: 07 December 1926
• Docket Number: No. 19561.,19561.
• Citation: 288 S.W. 948
• Parties: HOFFMAN v. PEOPLE'S MOTORBUS DO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

288 S.W. 948

HOFFMAN v. PEOPLE'S MOTORBUS DO. OF ST. LOUIS.

No. 19561.

St. Court of Appeals. Missouri.

December 7, 1926.

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

"Not to be officially published."

Action by Edward Hoffman against the People's Motorbus Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed conditionally.

Carter, Nortoni & Jones and James E. Garstang, all of St. Louis, for appellant.

Charles L. Loring, John R. Davis, and John P. Griffin, all of St. Louis, for respondent.

BECKER, J.

Plaintiff recovered a judgment for $2,500 in a suit for damages for injuries, alleged to have been sustained as the result of the collision of one of defendant's motorbusses and a city fire department motor conveyance, which plaintiff himself was driving at the time of the collision. Defendant appeals.

Plaintiff and several of his witnesses testified that one of the defendant's motorbusses, being driven west on Washington boulevard in the city of St. Louis, ran into a motor truck of the city fire department, being driven by plaintiff while responding to a fire alarm, the fire truck at the time being driven southwardly along Leonard avenue, the point of collision being the center of said Washington boulevard at its intersection with Leonard avenue.

It is conceded that plaintiff made out a case for the jury, but defendant is here complaining that the trial court erred, first, in giving plaintiff's main instructions; second, in refusing one of defendant's requested instructions on contributory negligence; third, that the verdict is excessive.

With reference to the alleged error in giving plaintiff's main instruction, defendant contends that, though plaintiff's petition pleads section 1301 of the Revised Ordinances of the city of St. Louis, 1914, which provides, in substance, that no motor vehicle shall move over and upon any public street at a greater rate of speed than is reasonable, having regard to the traffic and use of said street, and not so as to endanger the life and limb of any person or property, and shall not in any event be moved at any greater rate of speed than 10 miles per hour, yet that plaintiff must be viewed as having abandoned this portion of his pleading since plaintiff's petition, after setting out said ordinance, alleges specific acts of negligence, and in said assignment of specific acts of negligence does not specify the violation of said ordinance as one of them, and that, therefore, the mere fact of pleading such ordinance in that part of the petition in which plaintiff seeks to state the facts of his case will not suffice to aid in making a violation of said ordinance an assignment of negligence on which to predicate liability of defendant. In other words, it is defendant's contention here that the said ordinance was pleaded as a general allegation of negligence in the petition, but that the petition thereafter enumerates specific acts of negligence upon which plaintiff relies for recovery, and that, in said enumeration of specific acts, there is entirely omitted any reference to a violation of said ordinance. The point is without merit.

We readily concede that when a general allegation of negligence in a petition is followed by an enumeration of specific acts of negligence, the plaintiff will be restricted to and cannot recover, except on such specific acts. McManamee v. Ry. Co., 135 Mo. 440, 37 S. W. 119; Yall v. Gilham, 187 Mo. 408, 409, 86 S. W. 125; Roscoe v. Ry. Co., 202 Mo. 588, 101 S. W. 32; Kirkpatrick v. Ry. Co., 211 Mo. 83, 84, 109 S. W. 682; Davidson v. Transit Co., 211 Mo. 361, 362, 109 S. W. 583; Price v. Ry. Co., 220 Mo. 454, 119 S. W. 932, 132 Am. St. Rep. 588; Applegate v. Ry. Co., 252 Mo. 197, 158 S. W. 376. However, our examination of plaintiff's petition shows that the ordinance in question, together with others set up in one paragraph, is immediately followed by the allegation that:

"Plaintiff further states that defendant failed to exercise such care in the operation of said vehicle and carelessly and negligently operated the said bus or motor vehicle in a careless and negligent manner, which carelessness and negligence is as follows: * * * (3) in that defendant violated section 1301 of the ordinance hereinabove referred to by driving said bus or vehicle at a greater rate of speed than was reasonable and in excess of 10 miles per hour."

It is therefore manifest that plaintiff's petition does set out the violation of said ordinance 1301 as one of the specific acts of negligence relied on.

But defendant contends further that, even though it be held that plaintiff's petition does assign the violation of said city ordinance 1301 as one of the specific acts of neglience relied on, yet the plaintiff's main instruction is erroneous in that it is broader than plaintiff's allegations in his petition with reference thereto. To this we cannot accede.

To show the inconsistency of the contention sought to be made, it is sufficient to quote the following from the criticized instruction itself. "If you find and believe from the evidence that the...