Joseph v. Metropolitan St. Ry. Co.

• Decision Date: 17 February 1908
• Citation: 129 Mo. App. 603,107 S.W. 1055
• Parties: JOSEPH v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

107 S.W. 1055

129 Mo. App. 603

JOSEPH v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

February 17, 1908.

Rehearing Denied March 2, 1908.

1. NEGLIGENCE — PLEADING — EVIDENCE ADMISSIBLE UNDER — GENERAL ALLEGATIONS — SPECIFIC ALLEGATIONS.

Where a complaint contains a charge of general negligence, coupled with specific acts of negligence, the complainant will be confined to the specific acts.

2. TRIAL — EVIDENCE — VARIANCE — FAILURE TO OBJECT — INSTRUCTIONS.

Where, in an action for injuries to a passenger, the complaint in which coupled a charge of general negligence with one for specific negligence, the defendant made no objection to evidence of general negligence and did not ask the court to confine complainant to the negligence specified, instructions submitting defendant's

general negligence as part of the issues were not erroneous.

3. TRIAL — RECEPTION OF EVIDENCE — ESTOPPEL TO ALLEGE ERROR.

Where, in an action for injuries to a passenger, in which the complaint coupled a charge of negligence with one for specific negligence, the complainant confined his evidence in chief to the specific negligence, until defendant introduced evidence on the question of his general negligence, the subsequent admission of evidence in behalf of complaint on such issue was not erroneous.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

An action by Mabel Joseph against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas, for appellant. C. C. Madison and A. R. White, for respondent.

ELLISON, J.

Plaintiff was injured while riding on one of defendant's street cars as a passenger, and brought this action to recover damages alleged to have resulted from the negligence of defendant. She recovered judgment in the trial court.

It appears from evidence in plaintiff's behalf that defendant's car was propelled by the power of electricity, and while she was riding therein there suddenly burst forth, at the front end, flashes of fire which enveloped that part of the car. The motorman excitedly cried out to the passengers to jump off the car. This alarmed and excited them, and plaintiff attempted to get off, and in doing so was thrown to the pavement and hurt. The petition contained a general charge of negligence; but it contained other allegations specifying the negligence as that "the agents and servants of defendant in charge of said car negligently gave terrifying exclamations, and so conducted themselves as to cause plaintiff to believe there was great danger in remaining thereon." The rule in this state is, as has been frequently announced, that, when there is a charge of general negligence coupled with specific acts of negligence, the complainant will be confined to the specific acts. McManamee v. Railway Co., 135 Mo. 440, 447, 37 S. W. 119; McCarty v. Rood Hotel Co., 144 Mo. 402, 46 S. W. 172; Chitty v. Railway Co., 148 Mo. 75, 49 S. W. 868; Gayle v. Missouri Car Co., 177 Mo. 427, 450, 76 S. W. 987. In this case, had defendant asked it, the...