Kirkpatrick v. Metropolitan St. Ry. Co.

• Decision Date: 01 April 1908
• Citation: 109 S.W. 682,211 Mo. 68
• Parties: KIRKPATRICK et al. v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

109 S.W. 682

211 Mo. 68

KIRKPATRICK et al. v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

April 1, 1908.

1. EVIDENCE—DOCUMENTARY EVIDENCE—RELEVANCY—PRELIMINARY PROOF.

In an action by a passenger against a street car company for injuries from the overturning of a car two witnesses testified that they thought the conductor's name was "Rayborn" (as spelled by the stenographer), and one said he thought the conductor was W. B. Rayborn. The pleadings in an action by W. B. Reaburn, the conductor, against the same defendant, for injuries received in the same accident, were offered in evidence, and there was no pretense made at the trial that the plaintiff named in the pleadings in question was not the conductor of the car at the time of the accident in question, or that he was not the one mentioned in the oral testimony. Held, that admission of the pleadings was not error, on the ground of lack of evidence that the conductor of the train on which the plaintiff was injured was the same person who was plaintiff in the action in which the pleadings offered in evidence were filed.

2. SAME—MATTERS EXPLANATORY OF THINGS IN EVIDENCE.

Where, in an action against a carrier for injuries to a passenger, the answer of the carrier, in an action by another plaintiff for injuries in the same accident, was introduced in evidence to prove an admission therein, the petition in the former action was also admissible to explain the allegations of the answer, but should have been restricted to that purpose by the court in its instructions.

3. TRIAL — INSTRUCTIONS—SUFFICIENCY—LIMITING CONSIDERATION OF EVIDENCE.

An instruction that a petition in another case should be considered by the jury only as far as its allegations explain the allegations contained in the answer to said petition offered in evidence was not so insufficient as to constitute error, though it might have been more specific and less likely to be misunderstood had the court instructed that nothing stated in the petition was any evidence whatever of the facts stated therein, and that the jury should not consider it as evidence tending to prove any facts therein stated.

4. EVIDENCE—ADMISSIBILITY—PLEADINGS IN ANOTHER CASE IN A DIFFERENT STATE—ADMISSIONS AGAINST INTEREST.

Where the answer filed by the defendant as defendant in a different action contained admissions against the defendant's interest in the case at bar, the fact that it was filed, in a different case, in a different court and state, would not render it inadmissible.

5. SAME — ADMISSIONS AGAINST INTEREST — GROUNDS OF ADMISSION.

The law will presume admissions against interest to be true.

6. TRIAL — INSTRUCTIONS — NECESSITY—PURPOSE OF EVIDENCE.

The fact that the court stated that pleadings in another case were admissible to fix the date of the accident in question does not restrict the power or duty of the court to instruct as to the admissibility as admissions, if they were admissions, of any other facts involved in the issues.

7. EVIDENCE — PHOTOGRAPHS—CONDITION AT TIME OF ACCIDENT.

Photographs, showing condition of a trestle, track, and car in question, taken shortly after an accident occurred, are admissible in evidence when it is shown that they are correct representations of the conditions as they then existed.

8. CARRIERS—ACTIONS FOR INJURY TO PASSENGERS — PLEADINGS — VARIANCE — SPECIFIC ACTS OF NEGLIGENCE.

If a petition, in an action by a passenger for injuries, charges negligence in general terms, then proof of negligence either in relation to the tracks or roadbed would make out a prima facie case for plaintiff; but, when the petition alleges specific acts of negligence, there is no right to prove other acts, and the allegations of specific acts of negligence cannot be treated as surplusage.

9. TRIAL — INSTRUCTIONS—CURE OF INSTRUCTIONS.

An instruction, as to the care required of a carrier of passengers as to keeping its tracks and roadbed in proper condition, which was erroneous because the petition alleged negligence only as to the tracks, is not cured by an instruction that, even if there were certain defects in the tracks and roadbeds, and the cars were derailed, and plaintiff was thereby injured, if defendant could prove that the derailment was not caused by any neglect on its part in providing and maintaining reasonably safe tracks and roadbed, plaintiff could not recover, since there was a restatement of the matter relating to the roadbed which was not alleged, and the burden of proving defendant's negligence was placed on defendant, where it did not properly belong.

10. CARRIERS—CARE REQUIRED OF CARRIER.

It is the duty of a carrier to use the utmost care and foresight, which capable and faithful railroad men would take under like circumstances, to keep its tracks and roadbed in a reasonably safe condition for the running of cars over them.

11. SAME — DEGREE OF CARE REQUIRED OF CARRIER.

In an action by a passenger for injuries from the overturning of a car, where there was evidence that the tracks were not in a proper condition, defendant requested an instruction that a carrier of passengers is not obliged to foresee and provide against casualties which were not known to occur before, and which may not reasonably be expected, and that, if a carrier availed himself of the best known and most extensively used safeguards against danger, he has done all the law requires, and his liability is not to be ascertained by what appears, for the first time after the disaster, to be a proper precaution against these occurrences; that the defendant and its agents, etc., in the management and operation of its cars, were by the law required to exercise only such care and prudence as was reasonably practicable, and if plaintiff was injured as the result of some occurrence, which careful and prudent men in the situation of defendant's agents would not reasonably have expected, then the occurrence was an accident, and defendant was not liable; that the mere fact that an accident occurred, and plaintiff was injured, does not of itself entitle plaintiff to recover, and if defendant's servants exercised all the care and prudence that were reasonably practicable under all the circumstances, and the accident happened without negligence on their part, then plaintiff could not recover under any circumstances. Held, that the requests were properly refused, as not imposing a sufficiently high degree of care upon the carrier.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Martha E. Kirkpatrick and another against the Metropolitan Street Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

For opinion in Court of Appeals, see 107 S. W. 1025.

This suit was begun in the circuit court of Jackson county, by the respondent against the appellant, to recover the sum of $5,000 damages, as compensation for injuries sustained by her through the alleged negligence of the latter. The appellant was a common carrier, and respondent was a passenger upon one of its cars at the time the injuries were received. Plaintiff pleaded specific acts of negligence, and the allegation is as follows: "(2) That at a point just east of the intersection of Haskell avenue with Sherman street said railway is elevated upon a high trestle; that for a long time prior to said date the track west of said Sherman street and across said Sherman street was in a dangerous and defective condition, in this: That the ties upon which said track was laid were old and rotten; that the rails were not properly connected together at the joints, so that said rails did not meet at the joints and form a continuous rail; also said track was rough and uneven; that on said date said car in which plaintiff was riding was going at a high rate of speed across said Sherman street and towards said trestle, when, owing to said defects in said track, said car left said track near the west side of said Sherman street, and ran along the ties and onto said trestle for some distance, and then fell off said trestle to the ground below, a distance of about 12 feet." The answer was a general denial.

The facts disclosed by the record are substantially as follows: The defendant, Metropolitan Street Railway Company, owns and operates what is known as the "West Side Line" in Kansas City, Kan. This line runs along Haskell avenue, which is a highway running east and west. Sherman street crosses Haskell avenue at right angles, and, just east of the intersection, the street railroad runs on a trestle 20 or 25 feet high, for a considerable distance. The trestle begins within 25 feet of the east line of Sherman street, and going west from Sherman street the street railway tracks are on an ascending grade for half a block. Plaintiff lived with her husband at Third and Garfield streets, in Kansas City, Kan. On the morning of January 8, 1904, plaintiff left her home and went to visit a married son, who lived at No. 2726 North Eighth street, near the end of the West Side Line. She remained there until about five o'clock in the afternoon, when she started for her home. She took a car on the West Side Line. There were two or three passengers on the car, and W. R. Reaburn was the conductor, and Mike Gallivan was the motorman. As the car was approaching Sherman street, it was running fast downgrade, and, as it reached a point about 40 feet from the trestle, the car jumped the track at a joint in the rails, and ran along the ties onto the trestle. At a point where the trestle was about 12 feet above the ground below, the car fell off the trestle to the ground, striking on its side. Mrs. Kirkpatrick was severely injured. Her skull was fractured. Her shoulder was broken, causing a permanent disability, and obliging her to keep her arm in a harness ever since. Her coccyx bone was also broken, and she was confined to her home for months. There was abundant testimony, given by plaintiff's witnesses,...