McCaffery v. St. Louis & Meramec River Railroad Company

• Decision Date: 21 December 1905
• Citation: 90 S.W. 816,191 Mo. 144
• Parties: ROSA McCAFFERY v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

90 S.W. 816

191 Mo. 144

ROSA McCAFFERY v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Division One

December 21, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Affirmed.

Jefferson Chandler, T. M. Pierce and John Lionberger Davis for appellant.

(1) The court erred in not sustaining defendant's instruction which prayed the court to declare at the close of plaintiff's case that plaintiff cannot recover on the pleadings and evidence in the case. The reason for this assignment of error is there was a failure of proof. It was the duty of the court to take the case from the jury. R. S 1899, sec. 798. (2) The court erred in holding that plaintiff could recover by showing the injury to plaintiff in alighting from defendant's car at a different place from the place described in plaintiff's petition, to-wit, at Kraft and Manchester avenues, whereas, the entire testimony of plaintiff shows that whatever injury she sustained, if any was at Manchester sheds, a totally different place from the intersection of Kraft and Manchester avenues. Feary v. Railroad, 162 Mo. 75; Chitty v. Railroad, 148 Mo. 64. (3) The court erred in permitting plaintiff, after stating that the car from which plaintiff alighted was standing still when she got off, to change her answer in response to a leading question, objected to at the time by the defendant, and to state that the car jerked her off. The court erred in allowing said answer, which covered the whole evidence that plaintiff had to recover upon, and abused its discretion. Coats v. Lynch, 152 Mo. 116; Speckman v. Kraig, 79 Mo.App. 373. (4) The court erred in giving on its own motion instruction 2. Said instruction erroneously permitted a recovery by plaintiff on her petition without plaintiff's showing any negligence on the part of the defendant, or its agents or servants in managing the car on which plaintiff claims to have been a passenger, and from which she claims to have alighted at Manchester sheds. There was a failure of proof, and error in eliminating negligence from the instruction. Sec. 798, R. S. 1899. Plaintiff could not recover on defendant's answer or proof. (5) The court erred in not holding that the defendant was entitled to a verdict on the weight of evidence. Heinzmann v. Railroad, 182 Mo. 62. (6) The court erred in refusing to give defendant's instruction 4. Defendant was entitled to have the acts of alleged negligence set forth, and a definition made to the jury by the court of what constituted negligence, and the characterization of the acts complained of as negligently done. Gurley v. Railroad, 93 Mo. 451; Rinard v. Railroad, 164 Mo. 270; Jacquin v. Railroad, 57 Mo.App. 320; Hill v. Railroad, 49 Mo.App. 520. Defendant was entitled to have the court define to the jury the particular act of negligence complained of, and the degree of care required of the defendant. Koening v. Railroad, 173 Mo. 725; Reardon v. Railroad, 114 Mo. 384; Stanley v. Railroad, 114 Mo. 606. (7) The court erred in failing to give instruction 10, and in not holding that plaintiff was bound by her admissions. Plaintiff's admissions showed that she was not entitled to recover. Engleking v. Railroad, 187 Mo. 158. The court erred in failing to give instruction 17. The conditions of alighting at the railroad shops where plaintiff got off were not the same as the conditions of alighting at Kraft and Manchester avenues, and hence there was a failure of proof of the allegations in plaintiff's petition descriptive of the alleged negligence of defendant at Kraft and Manchester avenues. Instructions of the court and the verdict of the jury should conform to the pleadings.

George Safford and Thos. B. Harvey for respondent.

(1) Appellant could not complain of the fact that the court failed to sustain a demurrer offered at the close of plaintiff's case when it did not stand on such demurrer. Clark v. Railroad, 93 Mo.App. 455; Mirrielees v. Railroad, 163 Mo. 470. (2) (a) A variance must be material to warrant a reversal. R. S. 1899, sec. 656. (b) The alleged variance is not material. Cobb v. Railroad, 149 Mo. 145. (c) An objection on the ground of variance must be made at the trial so as to give an opportunity to amend the pleading; otherwise, the objection is waived. Fisher & Co. Real Estate Co. v. Staed R. E. Co., 159 Mo. 562; Ridenhour v. Railroad, 102 Mo. 270; Mellor v. Railroad, 105 Mo. 555; Golden v. Clinton, 54 Mo.App. 100; Hoyt v. Quinn, 20 Mo.App. 272; Choquette v. Railroad, 152 Mo. 257. (d) An affidavit setting forth the manner in which a party has been misled must be made on the trial, alleging the materiality of the discrepancy between allegations and proof; otherwise, this objection could not be considered. R. S. 1899, sec. 655; Fisher & Co. Real Estate Co. v. Staed Realty Co., 159 Mo. 562; Ridenhour v. Railroad, 102 Mo. 270; Mellor v. Railroad, 105 Mo. 555. (3) (a) Plaintiff did not change her answer. The car was standing still when plaintiff was in the act of getting off and jerked while she was in the act of getting off. (b) "Did it stand still while you got off" is not a leading question. (c) Even if the court decides that the plaintiff changed her answer, and that in response to a leading question, the defense was not injured thereby, as the plaintiff theretofore in response to the question: "What took place there," replied, "I stood in the door until it stopped. I was on the last step down. I had one foot on it when the car gave a jerk and threw me," to which no objection was, or could have been, offered by the defense. (d) Even if the court should hold that the question was leading, still the privilege to ask a leading question is addressed to the discretion of the trial judge and should not be reversed on appeal unless it appears that the discretion has been abused, especially where witness is ignorant or under nervous excitement. Speckman v. Kreig, 79 Mo.App. 376; King v. Mittalberger, 50 Mo. 182; Wilbur v. Johnson, 58 Mo. 100; Carter v. Primm, 52 Mo.App. 102; Coats v. Lynch, 152 Mo. 161. (4) Instruction 2 required the jury to find that defendant was negligent. To require the jury to find that the defendant did an act or series of acts which, as a matter of law, constitute negligence, required the jury to find that the defendant was guilty of negligence. Luckel v. Century Bldg. Co., 177 Mo. 608; Hinzeman v. Railroad, 182 Mo. 611; Taylor v. Felsing, 63 Ill.App. 624; Clark v. Dyer, 81 Tex. 339; Aurora v. Cox, 43 Neb. 727; Winnifred v. Railroad, 71 Vt. 48; Penn. Co. v. Marion, 104 Ind. 239. (5) The court did not err in permitting the case to go to the jury. There was ample evidence upon all points to sustain the verdict. Appellate courts will not reverse on the weight of the evidence. Bray v. Kremp, 113 Mo. 552; Brown v. Railroad, 50 Mo. 461; Blanton v. Dold, 109 Mo. 64. (6) The court did not err in refusing to give instruction 10 asked by appellant. Said instruction told the jury that respondent was a witness in her own behalf and that the jury were the sole judges of her credibility and that statements made by her, if any, which were against her own interest, must be taken as true. In the first place, had the instruction been so given it would have been contradictory, for the court could not instruct the jury at one and the same that they were the sole judges of the credibility of the witness and that any statements made by her against her own interest must be taken as true. Newcomb v. Jones, 37 Mo.App. 475; Shepherd v. Railroad, 189 Mo. 373. (7) The petition states that the accident occurred at or near the intersection of Kraft avenue and Manchester avenue, and it is conceded that it did occur within a few feet (beyond the mudhole) west. Such discrepancy is not material. Cobb v. Railroad, 149 Mo. 145.

OPINION

MARSHALL, J.

This is an action for $ 20,000 damages for personal injuries received by the plaintiff about half past five o'clock in the evening of December 21, 1900, in consequence of being thrown from one of defendant's cars on Manchester avenue just west of Kraft avenue, in the city of St. Louis. The plaintiff recovered a judgment for $ 5,000, and the defendant appealed.

THE ISSUES.

The substance of the petition is that the plaintiff was a passenger on the defendant's car, and when approaching Kraft avenue, she signaled for the car to stop at said avenue, as she desired to leave the car at that point; that the car stopped, and while she was in the act of alighting therefrom, and before she had time so to do, and while the agents of the defendant knew that she was in the act of so doing, and without warning to the plaintiff, the operatives of said car negligently caused the car to start forward with a sudden and unusual jerk, whereby the plaintiff was thrown violently to the pavement of the street, and "was badly cut and bruised about her body, arms, legs, spine and hips; and the femur of her left leg fractured at or near the hip joint, and her nervous system was greatly and permanently shocked and debilitated.

"Plaintiff further states that by reason of said injuries she has suffered, is suffering, and during the rest of her life will continue to suffer from great pain of body and anxiety of mind, and from great pain in and about her left leg, from the eversion of her left foot, from shortening of her left leg, from numbness of her hands and legs, from defective eyesight, from insomnia, from partial loss of the sense of touch, from vertigo and dizziness, from melancholia, from oedema or swelling of the left ankle, from paralysis of the left limb, from defective hearing, from paralysis of the bladder, from an inability to properly contain her urine, from a nervous heart and from traumatic neuraesthenia."

The answer of the...