Israel v. United Rys. Co. of St. Louis

• Decision Date: 08 April 1913
• Citation: 155 S.W. 1092,172 Mo. App. 656
• Parties: ISRAEL v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

155 S.W. 1092

172 Mo. App. 656

ISRAEL v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

Rehearing Denied April 22, 1913.

1. STREET RAILROADS (§ 111) — PLEADINGS — ISSUES — PROOF.

Where, in a suit against a railroad company for injuries to plaintiff's property by a car running off the track and into plaintiff's building, the petition charged specific negligence in that the car was operated at a high rate of speed and that it was negligently operated over the switch and caused thereby to jump the track, but there was no proof of specific negligence alleged, plaintiff could not recover.

2. NEGLIGENCE (§ 121) — RES IPSA LOQUITUR.

The doctrine res ipsa loquitur is inapplicable where specific acts of negligence are alleged.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by David R. Israel against the United Railways Company of St. Louis. Plaintiff's motion for a new trial and to set aside a verdict for defendant having been granted, defendant appeals. Reversed and remanded.

Boyle & Priest and R. E. Blodgett, all of St. Louis, for appellant. J. Butler McCormick, of St. Louis, for respondent.

ALLEN, J.

This is an action for damages alleged to have been suffered by plaintiff by reason of the running of one of defendant's cars into a building in which plaintiff was operating a hotel. Plaintiff was not the owner of the building, but was conducting a hotel on the second and third floors thereof, and sues for the loss entailed by the interruption of his business. At the close of plaintiff's case, defendant offered an instruction in the nature of a demurrer to the evidence, which the court gave. Under this instruction of the court, the jury returned a verdict in favor of defendant, and judgment was rendered accordingly. Thereafter, on motion of plaintiff, the court set aside the verdict and granted plaintiff a new trial, from which action of the court defendant has appealed.

The hotel in question was located on the northeast corner of Thirteenth and Market streets in the city of St. Louis, and the tracks of defendant railway company extend along Market street in front of the building. The petition charges that "defendant's employés, agents, and servants in charge of a work train of defendant (consisting of one freight car of huge dimensions and one motor or tool car), in the performance of their duties, were operating and running said work train on the east-bound track of defendant's said street railway, and by said Thirteenth and Market streets there is a switch owned and constructed by defendant, which connects with and extends from said east-bound track, which said switch was likely to cause cars running thereon to jump the track, unless said cars were run over and passed said switch in a slow and careful manner, all of which was known to defendant, its employés, agents, and servants in charge of said work train, but that said employés, agents and servants of defendant in charge of said work train, knowing the dangerous condition of the track and that said work train was likely to jump from said track unless operated carefully thereover, at said time negligently and carelessly operated said work train at a high and dangerous rate of speed, to wit, 30 miles an hour over and across said switch, at said intersection of Thirteenth and Market streets, and by reason of the said high and dangerous rate of speed and the negligence and carelessness of defendant's employés, agents, and servants, in the operation and running of said work train, one car thereof (the huge freight car) was caused to and did jump from said track and run into and through the west wall of the storeroom on the first floor of said building, under plaintiff's hotel," etc. The answer was a general denial.

It is unnecessary to review the evidence in detail. It was shown that the car in question, which was a large work car, for some reason became uncoupled and broke away from the motor car which was pulling it, left the track, and ran into the building in question, tearing a huge hole in it. And plaintiff adduced testimony showing that defendant had no track running into the hotel building, and tending to show that the defendant had no right to operate cars elsewhere than upon its tracks. There is much testimony in the record touching the loss claimed to have been suffered by plai...