Jordan v. St. Louis Transit Co.

• Decision Date: 22 February 1907
• Parties: JORDAN v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

101 S.W. 11

202 Mo. 418

JORDAN v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. PLEADING—ELECTION BETWEEN CAUSES OF ACTION—ANSWER—WAIVER OF DEFECTS.

Rev. St. 1899, § 593 [Ann. St. 1906, p. 619], provides that a plaintiff may unite in the same petition several causes of action arising out of injuries to the person, and section 598 [page 624] provides that a defendant may demur to the petition on the ground that causes of action have been improperly united. Section 2864 [page 1637] provides that whenever any person shall die from any injury resulting from the negligence of any servant while running any car, the master shall forfeit a specified sum which may be recovered by the wife of the decedent, and section 2865 [page 1644] provides for an action for wrongful death, where the injured party could, if death had not ensued, have sued for the injuries. In an action for the death of plaintiff's husband, the petition stated in one count a cause of action under section 2864 for the negligence of defendant's servant in running a car over decedent, and a cause of action under section 2865 for negligence of defendant's foreman under whom decedent was working, in failing to give warning of the approach of the car. Held, that defendant having interposed a plea to the merits, waived the informality of the petition in stating the causes of action in one count, and his motion after the commencement of trial to compel plaintiff to elect upon which cause of action she would proceed was properly denied.

2. TRIAL—DEMURRER TO EVIDENCE.

In passing on an instruction in the nature of a demurrer to the evidence, ordinarily plaintiff's evidence alone should be considered, but, if defendant's evidence aids plaintiff's case, it is also to be taken into account.

3. MASTER AND SERVANT—INJURIES TO SERVANT —ACTION—QUESTION FOR JURY.

In an action for the death of a servant employed by a street railroad company, who was run over by a car while working on the track, evidence considered and held a question for the jury whether there was negligence on the part of defendant's foreman in failing to give decedent proper warning of an approaching car.

4. SAME—INSTRUCTIONS.

In an action for the death of plaintiff's husband run over by a car while working on a street car track, the petition stated a cause of action founded on the negligence of defendant's servant in charge of the car, and another cause of action founded on the negligence of defendant's foreman in failing to warn decedent of the approach of the car. Plaintiff asked no instructions except as to the negligence of the foreman, there being no evidence to sustain the other cause of action, and defendant asked an instruction to the effect that if the jury should find certain facts, which showed that defendant's servant in running the car was not negligent, the verdict should be for defendant. The instruction was refused as asked, but given after modification so as to make it state that if the jury should find such facts, they should find for defendant on that issue. Held, that the giving of such instruction as modified was error, as giving the jury to understand that the issue as to the negligence of the foreman was in the case.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by Bridget Jordan against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.

Boyle & Priest, J. C. Kiskaddon, and B. L. Matthews, for appellant. P. H. Cullen and Jos. S. McIntyre, for respondent.

VALLIANT, J.

Plaintiff's husband was struck and killed by a street car of defendant, and she brings this suit to recover damages. At the trial the evidence for the plaintiff tended to prove as follows: Michael Jordan, the plaintiff's husband, was in the service of the defendant corporation in the capacity of track repairer. Defendant was operating a double track street railroad in Delmar avenue, which is a street running east and west. The space between the north rail of the south track and the south rail of the north track is 5 feet 8 or 10 inches, the tracks are 4 feet 10 inches between rails. The south track on which east-bound cars were run was undergoing repairs by a gang of 5 or 6 men under a foreman. Plaintiff's husband was one of the gang. He was working on the north rail of the south track, standing north of that rail close to it, stooping down, shoveling sand, facing west. The cars were running over the tracks, and were passing the point where the men were at work at intervals of 6 or 7 minutes. There was evidence tending to show that under the rules of the company it was the duty of the foreman to keep a lookout for the cars and warn the men of their approach in time for them to get out of the way. On the occasion in question the foreman called out, "Lookout, boys, cars coming both ways," whereupon all the men except Jordan and another stepped off to the south side of the south track, but Jordan and the other undertook to cross over to the north side of the north track—the other did so safely, but as Jordan stepped on the north track he was struck by a west-bound car and killed. Jordan stepped on the track within 5 or 6 feet of the car that struck him. After striking the man the car stopped within a car's length. Thus far there was no material conflict in the testimony. One of plaintiff's witnesses said that she did not hear the ringing of a gong of either car and thought she would have heard it if it had been rung, but she viewed the accident from inside her store. Asked if she heard the foreman say, "Look out, cars coming both ways," she said she did not hear it as her door was shut. Her position was inside her store behind the counter, and the door was shut. The only other eyewitness for plaintiff to the accident said he heard the gongs ringing on both cars as they approached the point of the accident. This witness estimated that at the time the foreman gave the warning to the men, "Look out," the east-bound car was about 40 feet distant and the west-bound car about 100 feet away. He said that Jordan was slow about getting out of the way, and that he stepped right in on the west-bound track in front of the car that struck him. On the part of the defendant the testimony tended to prove as follows: As the west-bound car was approaching the place where the men were at work there was a wagon in the street going in the same direction, and the motorman, apprehensive that the wagon might get on the track, began ringing the gong as a warning to the driver and kept up the ringing until he came nearly up to where the men were at work, and when he got within from 6 to 10 feet of them Jordan and the other man jumped right across in front of the car, the other being a few feet further west escaped, but Jordan was struck and killed. As soon as the motorman saw the men jump towards the track he reversed his power and stopped the car within 30 feet. The car was running at the rate of 6 to 8 miles an hour. At the moment of the accident the east-bound car was still 150 or 200 feet west of the point of collision. At the time the foreman gave the warning, "Lookout, boys, cars coming both ways," the west-bound car was 120 to 150 feet, distant and the car east-bound was 250 feet away.

The plaintiff in her petition states two causes of action, one under section 2864, the other under section 2865, Rev. St. 1899 [Ann. St. 1906, pp. 1637-1644]. For the first she declares that the defendant's servants in running the cars east and west at that point negligently failed to sound the gongs to give warning of the approach of the cars, to slacken the speed, to keep the cars under control as they approached the place where her husband was at work, and to stop the cars in time to avoid the injury. For her second cause of action she declares that the foreman, representing the master, was negligent in that he failed to give the warning of the approaching cars in time to enable her husband to escape. These two causes of action were stated in one count. The defendant answered by general denial and a plea of contributory negligence. There was a verdict for the plaintiff for $5,000, and judgment accordingly, from which the defendant appeals.

1. After the jury had been impaneled, the pleadings read, and the plaintiff had called her first witness, the defendant made an oral motion to require the plaintiff to elect upon which of the two causes of action she would stand, which motion the court overruled, and defendant excepted. That ruling is assigned as error. In discussing this subject counsel in their briefs have cited several decisions of this court to support their respective views. On examining the cases cited we find that they relate to different subjects, or perhaps it would be more correct to say different phases of this subject. There is a case in which are united in one count, as constituting one cause of action, several acts of negligence of the same general character, all of which might be true, and either one of which, or all together, might have caused the injury, and another case in which are set forth in one count as constituting one cause of action two or more acts of negligence that are inconsistent and contradictory of each other, and another case where two or more causes of action are improperly united in one petition though stated in separate counts, and, again, a case where two or more causes of action that might properly be united in one petition are improperly blended in one count. What is said by the court in either of those cases is said in reference to the facts of that case, and is not applicable to the different facts in the other cases. In an action sounding in damages for an injury caused by the negligence of defendant's servants, the plaintiff may state in one count as constituting his one cause of action as many acts of negligence not inconsistent with each other as he...