Magrane v. St. Louis & Suburban Ry. Co.

• Citation: 81 S.W. 1158,183 Mo. 119
• Parties: MAGRANE v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant
• Decision Date: 20 June 1904
• Court: United States State Supreme Court of Missouri

81 S.W. 1158

183 Mo. 119

MAGRANE v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

June 20, 1904

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed on condition.

McKeighan & Watts, Robert A. Holland, Jr., and Jefferson Chandler for appellant.

(1) The court erred in giving instruction 1 asked by plaintiff. Said instruction is erroneous: (a) Because it imposes upon defendant too high a degree of care in the operation of its cars. Jackson v. Railroad, 118 Mo. 224; Jacquin v. Cable Co., 57 Mo.App. 320; Hite v. Railroad, 130 Mo. 132. (b) Because it is based upon the theory that plaintiff was injured by the collision of the cars. Feary v. Railroad, 162 Mo. 75; Chitty v. Railroad, 148 Mo. 64; McManamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 314; McCarty v Hotel Co., 144 Mo. 397. (c) Because it states that when a passenger suffers injury by a collision resulting from two cars being run in opposite directions on the same track, the presumption is that it was occasioned by some negligence on the part of the defendant railroad, and the burden is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part, etc. Feary v. Railroad, 162 Mo. 75. (d) Because it utterly ignores the question of contributory negligence on the part of plaintiff. (e) Because it states that defendant is responsible for injuries to plaintiff resulting from any negligence. (2) The court erred in giving instruction 2 asked by plaintiff. Said instruction states, in effect, that if the jury believe from the evidence that the plaintiff was exercising ordinary care, he is entitled to recover, unless the defendant has proven by a preponderance of the evidence that the accident happened from causes beyond its control. The burden of proof is not upon the defendant to show by a preponderance of the evidence that the accident happened from causes beyond its control. (3) The court erred in giving instruction 6 at the instance of the plaintiff. (a) Said instruction is erroneous in that it allows plaintiff to recover for any negligence on the part of defendant, whereas under the pleadings, he is entitled to recover only in case the jury believe from the evidence that plaintiff had established the particular acts of negligence alleged. The latter part of this instruction predicates recovery if the collision in question was due to any negligence on the part of the defendant. Under the Feary case, supra, it was clearly erroneous to allow plaintiff to recover for any negligence when he had limited himself to specific allegations of negligence in his petition. Chitty v. Railroad, 148 Mo. 64; McManamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 314; McCarty v. Hotel Co., 114 Mo. 397. (b) It is also erroneous in that it is based upon the idea that plaintiff was injured by a collision of the cars. This is erroneous because there is no evidence upon which to predicate such a theory. The evidence in fact shows that he jumped or was pushed from the car prior to the collision. Chitty v. Railroad, 148 Mo. 64. (4) The court erred in giving instruction 7 at the instance of plaintiff. (a) Said instruction is erroneous because it states that plaintiff had a right to presume that defendant would so operate its cars that there would be no collision. This precise point was passed upon in the case of Culbertson v. Railroad, 140 Mo. 61. (b) It is further erroneous in that it bases a recovery on a finding that plaintiff "was injured by the collision of the defendant's cars." This is erroneous because the plaintiff in his petition states that he was injured, not by the collision, but by the efforts of persons on the car to get off. And this is also what the proof shows. Plaintiff can not recover for a cause of action different from the one he has pleaded. Stone v. Hunt, 114 Mo. 66; State v. Hope, 102 Mo. 410; Evans v. Interstate Co., 106 Mo. 594; Woods v. Campbell, 110 Mo. 572. (5) The court erred in refusing to give instruction E offered by the defendant. This instruction correctly states the law, and should have been given. The plaintiff did not, in this case, plead generally, but limited himself to certain specifications of negligence. (6) The court erred in allowing plaintiff, over the objection of defendant, to testify in regard to his inability to sleep. Plaintiff pleaded specifically what injuries he had sustained and among them did not enumerate insomnia. (7) The court erred in allowing the plaintiff, over the objection of defendant, to state that his eyesight had been affected by the accident. In his petition plaintiff made no such allegation, although he alleged several other injuries.

Thomas T. Fauntleroy and Theodoric F. McDearmon for respondent.

(1) Upon the undisputed facts, proven by the evidence of the defendant, as well as by that of the plaintiff, defendant was grossly negligent in the operation of its cars, whereby a collision was caused. And in so managing its cars (according to all the evidence) defendant was negligent as charged in the petition. Malloy v. Railroad, 173 Mo. 75; Magoffin v. Railroad, 102 Mo. 540; Clark v. Railroad, 127 Mo. 197; Robinson v. Railroad, 77 S.W. 493; Railroad v. Arms, 91 U.S. 492; Hennessy v. Railroad, 173 Mo. 86. (2) In view of the admitted facts it would have been entirely correct to instruct the jury that the running of two cars towards each other on the same track so that they collided (as shown by the evidence for defendant, and as admitted in this court by defendant's counsel in their brief for appellant), was negligence in the operation of defendant's railway, and it was wholly unnecessary to submit to the jury any issue as to such negligence of the defendant. The particulars of any instructions on that point are plainly immaterial, since the verdict for plaintiff on that issue is correct as a matter of law, and any error there might be in the instructions on that subject would be manifestly harmless. Moore v. Railroad, 176 Mo. 528; Becke v. Railroad, 102 Mo. 544. (3) It was proper to instruct the jury (as in the first instruction for plaintiff) that defendant was under obligation to its passengers to use the highest degree of care in the operation of its cars. Clark v. Railroad, 127 Mo. 197; Waller v. Railroad, 83 Mo. 608; Jackson v. Railroad, 118 Mo. 199. (4) There was no sufficient evidence tending to prove any contributory negligence of plaintiff. Goltz v. Griswold, 113 Mo. 144; Griffith v. Railroad, 98 Mo. 175. (5) The use of the words "by the collision" in the instruction (in referring to the injury to plaintiff) does not mean, and could not be understood by the jury to mean, that plaintiff sustained his injuries by the actual contact of the cars. The fair interpretation of these words is that his injury might be found to have been occasioned by the facts and circumstances attending the collision. Moreover, those words are used merely to identify the injury of plaintiff. That injury is the material fact the jury were to find. A call in an instruction for an immaterial fact in addition to the essential facts, is not error. Houx v. Batteen, 68 Mo. 84; State v. Ware, 69 Mo. 332; Wright v. McPike, 70 Mo. 175; Monson v. Rouse, 86 Mo.App. 97; Gaty v. Sack, 19 Mo.App. 477. (6) A reference (in an instruction) to the petition (in regard to the injuries of plaintiff) is not erroneous where there is no issue of law thereby submitted to the jury, and the reference to the pleading is plainly harmless, as in this instance. Britton v. City, 120 Mo. 437; State v. David, 131 Mo. 380; State v. Scott, 109 Mo. 226; Hartpence v. Rogers, 143 Mo. 623. (7) The proof of a minor condition or symptom, arising directly from a shock (or other injury) to the nervous system, is admissible in evidence under the allegation of injury to the nervous system without a more minute and particular statement, following the maxim that "the greater includes the less." Grady v. Railroad, 76 S.W. 673; Railroad v. Pina, 77 S. W, (Tex.) 979; Tyson v. Booth, 100 Mass. 258; Railroad v. Curry, 64 Tex. 258; Butts v. Bank, 99 Mo.App. 168. (8) The instructions must be considered with reference to the facts of the case, and, if the result is correct on the conceded facts, any slight deviation from technical accuracy, which has not affected the judgment which the law would pronounce, should be discarded as harmless. R. S. 1899, secs. 659, 865; Hartpence v. Rogers, 143 Mo. 623; Moore v. Railroad, 176 Mo. 528; Smiley v. Railroad, 160 Mo. 629; Berthold v. Const. Co., 165 Mo. 280; Chambers v. Chester, 172 Mo. 461.

VALLIANT, J. Robinson, J., absent.

OPINION

VALLIANT, J.

The defendant owns and operates a system of street railroads in the city of St. Louis and the county of St. Louis.

On September 7, 1900, a collision occurred between two cars of defendant that were running on the same track, each in the opposite direction to the other. The plaintiff was a passenger on one of the cars and received personal injuries in the collision; that is, he was not on the car at the instant it came in actual collision with the other, but when the danger of a collision was imminent, there was a panic rush of the people on the car to escape, and the plaintiff standing on the front platform was pushed off by the mass of the escaping people and fell to the ground an instant before the cars struck each other. He sues for damages, alleging that the collision was caused by the negligence of the defendant. The answer to the petition is a general denial, and a plea of contributory negligence.

This collision has been brought to the attention of this court in two other cases where passengers were injured in it (Malloy v. St. Louis & Suburban Ry. Co., ...