Johnson v. Metropolitan Street Railway Company

• Decision Date: 04 January 1904
• Citation: 78 S.W. 275,104 Mo.App. 588
• Parties: ARTHUR W. JOHNSON, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

78 S.W. 275

104 Mo.App. 588

ARTHUR W. JOHNSON, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 4, 1904

Appeal from Jackson Circuit Court.--Hon. Andrew F. Evans, Judge.

Judgment reversed.

John H Lucas for appellant.

(1) The court erred in admitting any evidence under the pleadings. The petition does not state facts sufficient to constitute a cause of action against the defendant. Ency. Pleading and Practice, vol. 13, p. 907; Waldhier v. Railway, 71 Mo. 516. (2) The court erred in refusing to sustain the demurrer to the evidence offered by the defendant, and in refusing to give the peremptory instruction asked by the defendant at the conclusion of the whole case. There is no evidence of any negligence in this record whatever. Perse v. Railway, 51 Mo.App. 173; Stept v. Railway, 85 Mo. 236; Breen v. St. L. C. Co., 50 Mo.App. 212; Yarnall v. Railroad, 113 Mo. 579-80; Carvin v St. Louis, 151 Mo. 345; Nolan v. Shiekle, 3 Mo.App. 304-8; Schultz v. Railroad, 36 Mo. 32; McCarty v. Hotel Co., 144 Mo. 402; Sams v Railroad, 73 S.W. 686. (3) The court erred in giving instruction number one asked by plaintiff, and refusing to give instructions number one and two as asked by the defendant. a. Number one enlarges the issue tendered by the petition. Bank v. Murdock, 62 Mo. 70; Schlereth v. Railway, 96 Mo. 509. There is no evidence on which to base the same. Paddock v. Somes, 102 Mo. 226, and authorities cited and under second subdivision herein.

Joseph S. Rust for respondent.

(1) The practice in Missouri is not as appellant contends, and besides the petition does not and should not state a negative and a mere conclusion of law, by saying that the carpenters and plaintiff were not fellow-servants. It states facts showing that they were not. It states facts showing that they were not engaged in the same departments of work. (2) The petition also states that "defendant is a corporation owning and operating street and electric railways in Kansas City, Missouri, and between Kansas City, Missouri, and Argentine, Kansas, and Independence, Missouri, and between Argentine, Kansas and Independence, Missouri." It therefore states that defendant is such a railroad as to come within the fellew-servant act, and it shows that the injury was not received in connection with the street railway. The court can not presume that this power-house was used exclusively in connection with its street railway business. The petition was therefore good for that reason. (3) That this petition does not state a cause of action I desire to refer to Pattison's "Missouri Code Pleading," sec. 422, p. 227. The author there says, "While a general charge of negligence is improper pleading and if timely objection is made to it, the plea will be held bad on that account, yet if it is not objected to at proper time and before trial, it is good as a basis of proof. Generality of averment in an action of negligence is not a fatal objection to the petition after answer." In support of the point the author cites Conrad v. De Mont Court, 138 Mo. 311; Foster v. Railway, 115 Mo. 165, and Benham v. Taylor, 66 Mo.App. 308.

OPINION

ELLISON, J.

This is an action for personal injury received by plaintiff who was an employee of defendant. The judgment in the trial court was for plaintiff.

The defendant had carpenters employed in the story next above the ground floor of its power-house taking up and relaying floors. Plaintiff, a negro man, was engaged with his horse and cart in hauling out the "trash" made by the carpenters. It appears that the carpenters used, among other implements, a heavy iron bar called a "crowbar" with which they prized up the old floor. This bar fell from the floor above and struck plaintiff "on the head and glanced off." It does not appear from the evidence how it came to fall, or whether it was at the moment being used by the carpenters above. Nor does the petition charge how it happened. The pleader has rested content by simply charging, generally, that defendant's servants negligently caused it to fall.

1. Defendant objected to any evidence being received for the reason stated that the petition made only a general charge of negligence and therefore stated no cause of action. The case of Waldhier v. Railway, 71 Mo. 514, is cited to support the point. An expression is used in that case which supports defendant. But it has never been regarded as authoritative. The point decided in that case was that when a petition charges specific acts of negligence as the ground of action a recovery can not be had for acts not charged. Such was stated to be that decision in Schneider v. Railway, 75 Mo. 295, where it was held in an opinion by the same judge who wrote that in the Waldhier case, that a general charge of negligence was sufficient. And it was so held in Goodwin v. Railway, 75 Mo. 73; Mack v. Railway, 77 Mo. 232; Lemay v. Railway, 105 Mo. 361. In cases later than these, it seems to be held that if there is objection at the "proper time before trial" such petition would be held insufficient. Conrad v. De Mont Court, 138 Mo. 311, 325, 39 S.W. 805. In Foster v. Railway, 115 Mo. 165, 177, it is said that a general charge of negligence is good "after answer" (italics ours). So, therefore, if we are to regard the Supreme Court as now holding that such general charge is insufficient if objected to before the trial, defendant's point is still not tenable, since its objection was first made after the trial opened.

2. Defendant next objects to the sufficiency of the proof of plaintiff's case--that it is not shown that the fall of the bar was caused by negligence. Looking at the entire evidence, it appears that the carpenters were prying up a board or joist when the bar fell. The only evidence is that it fell and struck plaintiff on the head. There is nothing to show why, or how, it fell. We believe such evidence sufficient to cast upon defendant the necessity of explaining. Unless defendant can account for the fall of the implement in such way as to exculpate itself it will be held to have done the act negligently. We stated the rule to be in Shuler v. Railway, 87 Mo.App. 618, 623, "that when an accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, it will be presumed to be negligent." In the case of Dougherty v. Railway, 9 Mo.App. 478, Judge Thompson has gathered some cases which fully support what we have said:

"Thus a traveller is passing under a bridge, which a railway company has thrown across a highway; at the same time a train is passing over the bridge on the railway; a brick falls from the wall of the bridge upon the traveller and hurts him. There is no evidence whatever as to how the brick came to be loosened from its place. The railway company must explain that the brick came to fall from some cause consistent with its innocence, or pay damages to the traveller. Kearney v. Railway, L. R. 5 QB 411 and L. R. 6 QB 759; S. C., 2 Thomp. on Neg. 1220.

"A traveller passing along the street is struck by a barrel of flour falling from the window of an abutting warehouse. There are no other facts in evidence. The occupier of the warehouse must pay damages to the traveller, unless he can show that there was no negligence on the part of himself or his servants. Byrne v. Boadle, 2 H. & C. 722; S. C., 33 L. J. (Exch.) 13.

"An officer of customs is passing, in the discharge of his duty from one door of a warehouse to another, when some bags of sugar fall on him. There is no other evidence. The proprietor must excuse...