Kennedy v. Metropolitan St. Ry. Co.

• Decision Date: 02 December 1907
• Citation: 128 Mo. App. 297,107 S.W. 16
• Court: Missouri Court of Appeals
• Parties: KENNEDY v. METROPOLITAN ST. RY. CO.<SMALL><SUP>*</SUP></SMALL>

107 S.W. 16

128 Mo. App. 297

KENNEDY v. METROPOLITAN ST. RY. CO.^*

Kansas City Court of Appeals. Missouri.

December 2, 1907.

1. CARRIERS — INJURY TO PASSENGER — COMPLAINT — NEGLIGENCE — ALLEGATIONS.

A petition alleging that defendant allowed the car, controller, motor, and electrical appliances "to become out of order, and allowed the controller * * * to burn out, causing an explosion, setting said car on fire and causing a panic among the passengers, and plaintiff was thrown, pushed, and knocked from the car by the persons frightened * * * striking upon his head," etc., specifically charges negligence.

2. SAME — PLEADING — VARIANCE.

A petition in an action against a street railroad company for injuries to a passenger charged that defendant negligently allowed the car and appliances to become out of order, so as to cause such an explosion as caused a panic among the passengers, whereby they threw, pushed, or knocked plaintiff off the car. Plaintiff testified: "This flash struck me in the face, and I don't know, the current or something must have carried me off the car. I don't know how I got off, whether I jumped off or that knocked me off; didn't know anything," etc. Held, that plaintiff's evidence failed to show that the explosion caused the panic, and the knocking him off the car by the other passengers, and amounted to a failure to sustain the petition.

3. TRIAL — QUESTIONS FOR JURY — ELEMENTS OF CAUSE OF ACTION — ISSUES NOT SUSTAINED BY THE EVIDENCE.

Where there is a failure of proof to sustain a petition and defendant demurs to the evidence, it is error to submit the case to the jury.

4. NEGLIGENCE — ACTIONS — PRESUMPTIONS — RES IPSA LOQUITUR.

Where a plaintiff states a case of specific negligence, he abandons his right to the presumption arising from the rule of res ipsa loquitur and assumes the burden of proving the specific negligence charged.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action my John W. Kennedy, by administrator, against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

John H. Lucas, Frank G. Johnson, and Ben F. White, for appellant. E. W. Shannon and J. D. Clough, for respondent.

ELLISON, J.

This is an action for personal injuries received by plaintiff while a passenger on one of defendant's electric street cars in Kansas City. He recovered judgment in the trial court.

The negligence complained of is specifically charged. It is alleged that, for some reason unknown to plaintiff, defendant allowed the car, the controller, the motor, and the electrical appliances "to become out of order, and allowed the controller and the apparatus connected therewith to burn out, causing an explosion, setting said car on fire, and causing a panic among the passengers, and plaintiff was thrown, pushed, and knocked from the car by the persons frightened by said explosion and...