Ingles v. Metropolitan St. Ry. Co.

• Decision Date: 13 June 1910
• Citation: 145 Mo. App. 241,129 S.W. 493
• Parties: INGLES v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

129 S.W. 493

145 Mo. App. 241

INGLES v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 13, 1910.

Rehearing Denied June 28, 1910.

1. CARRIERS (§ 315) — INJURIES TO PASSENGER—PLEADING AND PROOF.

Where a passenger is injured either through defective appliances or negligence of the carrier's servants, a general allegation of negligence is sufficient to support proof, but, if the negligence is specified, it should be proven as alleged.

2. CARRIERS (§ 320)—INJURY TO PASSENGER —QUESTION FOR JURY.

Evidence in an action against a carrier held sufficient to support the allegations of negligence in the complaint as against a demurrer to the evidence.

3. DAMAGES (§ 144)—PLEADING AND PROOF— LOSS OF EARNINGS.

Damages for loss of earnings must be specially pleaded.

4. DAMAGES (§ 186)—LOSS OF EARNINGS— NECESSITY OF PROOF.

Where plaintiff alleged that he had suffered by reason of his injuries and would continue to suffer, and had lost a great deal of time, and had been unable to obtain employment by reason thereof, but the evidence merely showed that plaintiff was 57 years old, and had been employed as weighmaster, there was a fatal failure of proof as to loss of earnings.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by John B. Ingles against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John H. Lucas, F. G. Johnson, and Chas. N. Sadler, for appellant. J. T. Burney & Son and John I. Williamson, for respondent.

JOHNSON, J.

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 $1,500, and the case is here on the appeal of defendant.

The injury was inflicted about 6:15 p. m. December 16, 1906. Plaintiff was a passenger on an east-bound 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 signaled 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 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 prima facie case is required only to show "an accident and the resultant injury." Roscoe v. Railway, 202 Mo., loc. cit. 582, 101 S. W. 34. Judge Graves said in the case just cited: "The rule of 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."...