Ingles v. Metropolitan Railway Company
| Decision Date | 13 June 1910 |
| Citation | 129 S.W. 493,145 Mo.App. 241 |
| Parties | JOHN B. INGLES, Respondent, v. METROPOLITAN RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Jackson Circuit Court.--Hon. Thomas J. Seehorn Judge.
Judgment reversed and cause remanded.
John H Lucas, F. G. Johnson and Charles N. Sadler for appellant.
(1) Where specific acts of negligence are pleaded, it devolves upon the plaintiff to prove the acts of negligence pleaded and, if he recover at all, it must be on the specific acts of negligence pleaded, and not otherwise: Detrich v. Railroad, ___ Mo.App. ___; Black v. Railroad, 217 Mo. 672; Beave v. Railroad, 111 S.W. 52; Kennedy v. Railroad, 128 Mo.App. 297; Kirkpatrick v. Railroad, 211 Mo. 68; McGrath v. Railroad, 197 Mo. 97, 105; Bartley v. Railroad, 148 Mo. 124; Ferry v. Railroad, 162 Mo. 75, 96; Ely v. Railroad, 77 Mo. 34; Bunyan v. Railroad, 127 Mo. 12. (2) The rule of res ipsa loquitur does not apply where the acts of negligence are specifically pleaded. (See authorities above cited.)
John I. Williamson and James T. Burney & Son for respondent.
The record shows that after the defendant's car, in charge of its conductor and motorman, had come to a full stop and plaintiff was attempting to alight therefrom, the car suddenly and without warning "lurched forward, " throwing plaintiff out of the car. This made a prima-facie case of negligence as charged in the petition; and whether defendant's witnesses successfully disproved negligence on its part was a question for the jury. Minster v. Railroad, 53 Mo.App. 276; McCarty v. Railroad, 105 Mo.App. 596; Ilges v. St. Louis Tr. Co., 102 Mo. App., 529; Raney v. Lachance, 96 Mo.App. 479; Buck v. Railroad, 108 Mo. 179; Redmon v. Railroad, 185 Mo. 1; Pratt v. Railroad, 122 S.W. 1125, 1127; Latimer v. Railroad, 126 Mo.App. 70; Heiberger v. Tel. Co., 133 Mo.App. 459.
Plaintiff alleges that he was injured by the negligence of defendant and prays judgment for the resultant damages. The answer is a general denial and a plea of contributory negligence. Verdict and judgment were for plaintiff in the sum of fifteen hundred dollars, and the case is here on the appeal of the defendant.
The injury was inflicted about 6:15 p. m., December 16, 1906. Plaintiff was a passenger on an eastbound electric street car operated by defendant on its Independence avenue line in Kansas City and intended to alight at Olive street. He did not go into the car but stood in the rear vestibule. The conductor was informed of his desire to leave the car and caused it to be stopped at Olive street at the usual stopping place. In alighting, plaintiff fell to the pavement and received the injuries of which he complains. Thus far there is no controversy over material facts. Plaintiff testified that the car came to a full stop; that he was just in the act of stepping to the pavement when the car suddenly started forward and then stopped after running eight or ten feet, that he alighted on his feet, but the sudden motion of the car destroyed his balance and caused him to fall heavily rearward of the car. In other words, the forward lurch of the car had the effect of jerking his feet from under him. There is no evidence that the conductor signalled the motorman to start, nor is there any direct evidence that the motorman did start the car. The version of the injury presented by the evidence of defendant is that the car came to a stop and that in alighting, plaintiff accidentally fell forward to his hands and knees. All of the witnesses for defendant deny that the car started forward while he was alighting.
The negligence pleaded in the petition is that while plaintiff "was in the act of alighting and was still on the lower step of said car, stepping down therefrom with due care, and before he had reasonable time or opportunity to reach the ground from said car, defendant's servants in charge thereof carelessly and negligently, and without warning, caused said car to be started with a quick movement whereby the plaintiff was thrown from said car."
The first instruction given at the request of plaintiff submitted this alleged act of negligence as an issue of fact. Counsel for defendant argue that there is no evidence to support the instruction. This contention will be answered in what we shall say in disposing of the demurrer to the evidence, which defendant insists should have been given.
The main proposition in defendant's brief is that the petition charges specific negligence and the proof fails entirely to sustain such charge. The rule is well settled that in personal injury cases where the relation of passenger and carrier existed between the plaintiff and defendant and the injury resulted either from some defect in the instrumentalities employed in the transportation or from some act of omission or commission on the part of the servants of the carrier, a general allegation of negligence is all that is required in the petition. And in such cases the plaintiff to make a primafacie case is required only to show "an accident and the resultant injury." [Roscoe v. Railway, 202 Mo. l. c. 576, 101 S.W. 32.] Judge GRAVES said in the case just cited: "The rule of the presumptive negligence and the rule allowing the pleading of negligence generally, are rules which grew up out of necessity in cases of this character and are exceptions to the general rules of pleading and proof."
But the rule fails of application in a case such as the present where the plaintiff attempts to put his finger on the precise cause of his injury by alleging in his petition the specific act or acts of negligence of which he complains. The Supreme Court has well stated the doctrine applicable to such cases in the following quotation from the opinion in Orcutt v. Century Building Co., 201 Mo. 424, 99 S.W. 1062 ...
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