Leimbach v. United Railways Company of St. Louis
| Decision Date | 08 February 1921 |
| Citation | 227 S.W. 847,206 Mo.App. 179 |
| Parties | LOUISA LEIMBACH, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Kent K. Koerner, Judge.
AFFIRMED.
Judgment affirmed.
Chas W. Bates and T. E. Francis for appellant.
The court erred in giving, of its own motion, instruction No. 5 for the reason that it did not submit the specific act of negligence set out in the petition, but was merely a "roving commission" to the jury to find for plaintiff "on any theory of negligence they might evolve out of their own minds." Beave v. St. Louis Trans Co., 212 Mo. 331; Allen v. St. Louis Trans. Co., 183 Mo. 411; Miller v. U. R. Co., 155 Mo.App. 528; Mulderig v. U. R. Co., 116 Mo.App. 655; Sommers v. Transit Co., 108 Mo.App. 319; Dalton v. Refining Co., 188 Mo.App. 529; Feldwerth v. Railroad, 181 Mo.App. 630; Eastridge v. Lumber Co., 188 Mo.App. 438; Casey v. Bridge Co., 114 Mo.App. 47.
Charles P. Comer for respondent.
This is an action for personal injuries sustained by plaintiff while attempting to alight from a street car operated by defendant, and alleged to have been occasioned by defendant's negligence. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $ 1500, and the defendant appeals.
The petition alleges that while plaintiff was a passenger upon defendant's street car she signalled for the car to stop, and that as she was leaving the car, defendant's servants operating it "negligently and carelessly caused her to be thrown with great force and violence to the street," whereby she was injured. The specific negligence charged is that "while plaintiff was alighting from said car defendant's agents and servants caused said car to jerk and throw plaintiff to the street with great force and violence."
The answer is a general denial.
Plaintiff's testimony is that when the car stopped, in response to a signal given by her, she stepped on the car step, whereupon the car moved and she fell to the street. When asked to describe the movement of the car, she said: "The car was stopped and I stepped on the step coming down, and when I was on the step, the car gave a jerk and throwed me out on the street." On cross-examination, she said: "The car was standing perfectly still when I started to alight."
The only other testimony in plaintiff's behalf pertains to a written statement that was shown to plaintiff during her cross-examination, purporting to be a statement signed by her at the instance of a claim agent of the defendant. Plaintiff denied that she signed the instrument.
In behalf of defendant the motorman of the car testified that after having received a signal to stop, he began to slacken the speed of the car, and when within "about four or five or six feet" of the usual stopping place he opened the front door of the car and plaintiff "got out and stepped off," while the car was still running, but running very slowly. And he stated that there was no unusual movement of the car while plaintiff was alighting. On cross-examination he said that the car was "barely moving" when plaintiff got off.
The motorman's version of what occurred is corroborated by the testimony of a witness who was a passenger on the car, and by the written statement of an absent witness--it being admitted by respondent that the witness, if present, would testify to the facts contained in this statement.
Plaintiff requested no instructions. At the request of the defendant the court gave the two following instructions, viz.:
1. "The court instructs the jury that if you find and believe from the evidence that at the time and place in question plaintiff attempted to alight from a street car while the same was in motion and before it had come to a stop, and that the street car suffered no movements other than those usual and customary to a moving street car, and that whatever injuries plaintiff sustained were caused by her act in so alighting from a street car while the same was in motion and without any unusual or extraordinary movements, then plaintiff is not entitled to recover and your verdict should be for the defendant."
2. "The court instructs the jury that the fact, if it be a fact, that the door on the front platform of the street car mentioned in the evidence was open while the street car was in motion and when plaintiff attempted to alight from the same, does not of itself under the pleadings and evidence justify you in finding in favor of the plaintiff."
Of its own motion the court instructed the jury as to the burden of proof and preponderance of the evidence; and also that nine jurors might return a verdict. The court then, of its own motion, gave the following instruction on the measure of damages (instruction No. 5):
"If your verdict is for plaintiff you will assess her damages at such sum as you believe and find from the evidence will be a fair and reasonable compensation to her for any injuries, if any, she may have sustained and from which she will suffer in the future, if any, as a direct result of the negligence, if any, of the defendant, and for such reasonable sum, if any, she has become obligated to pay for medical attention because of such injuries, if any, but you cannot allow for this last item more than $ 100." (Italics ours).
Appellant makes but one assignment of error, and that is to the action of the court in giving instruction No. 5, supra. This instruction is assailed on the ground that "it did not submit the specific act of negligence set out in the petition, but was merely a roving commission to the jury to find for plaintiff on any theory of negligence they might evolve out of their own minds."
There can be no doubt as to the correctness of the general principle upon which appellant's assignment of error proceeds, namely, that, in a case of this character where the petition pleads a specific act or specific acts of negligence, and the evidence for the plaintiff tends to show one or more of the specific acts charged, the instructions should submit only the specific act or acts of negligence charged and shown by the evidence. Otherwise stated, instructions must keep within the purview-of both the pleadings and the evidence, and not be broader than either. As to this the authorities in this State are numerous. In support of its assignment of error appellant cites the following cases: Beave v. Transit Co., 212 Mo. 331, 111 S.W. 52; Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S.W. 1142; Miller v. United Railway Co., 155 Mo.App. 528, 134 S.W. 1045; Mulderig v. United Railways Co., 116 Mo.App. 655, 94 S.W. 801; Sommers v. Transit Co., 108 Mo.App. 319, 83 S.W. 268; Dalton v. Refining Co., 188 Mo.App. 529, 174 S.W. 468; Feldewerth v. Railroad, 181 Mo.App. 630, 164 S.W. 711; Eastridge v. Lumber Co., 188 Mo.App. 438, 174 S.W. 462; Casey v. Bridge Co., 114 Mo.App. 47, 89 S.W. 330. In each of these cases, with the exception of that last cited. viz., Casey v. Bridge Co., supra, the court had under consideration an instruction or instructions purporting to cover the case on the question of liability, and directing or authorizing a verdict upon a finding of the facts hypothesized.
In Casey v. Bridge Co., supra, the plaintiff sued to recover for injuries sustained by reason of the collapsing of a bridge alleged to have been negligently constructed by the defendant. The instruction under review was one on the measure of damages--i. e., one by which it was sought to tell the jury what elements of damage were recoverable in the event the...
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