McHugh v. St. Louis Transit Company
| Decision Date | 28 June 1905 |
| Citation | 88 S.W. 853,190 Mo. 85 |
| Parties | McHUGH v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal fro St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.
Reversed and remanded.
Boyle Priest & Lehmann and Geo. W. Easley for appellant.
(1) The court erred in overruling the several motions to elect filed by appellant. The petition being in a single count, contains two distinct causes of action. Post v. Campan, 42 Mich. 96. The primary right of the plaintiff alleged to have been neglected by the defendant was the right to have her car stop at her point of destination, and there held for a reasonable time to enable her to alight; the neglect of defendant to award her that primary right constituted the delicti, which, when followed by injury, constituted a full and complete cause of action. The primary right, alleged in the second part of the petition, was the right to have the conductor disallow her to leave the car while in motion. If the ordinance be valid and the injury followed the neglect of the duty sought to be imposed thereby, that is another complete and distinct cause of action. The second allegation claims a right to have the conductor allow or permit her to leave the car while in motion. That right, if it exists at all, was created solely by the ordinance. It did not arise from the common law. To allege in the same count, which asks but one remedy, two distinct duties not arising from the same source of power, and the neglect of each of them, must, in the very nature of things, state two distinct causes of action. Pomeroy's Remedies, secs. 452-462; Warwick v Hutchinson, 45 N.J.L. 65; Foote v. Edwards, 13 Blatchf. 310; Sumner v. Rogers, 90 Mo. 329; Kendrick v. Railroad, 81 Mo. 521; Harris v. Railroad, 51 Mo.App. 128; Linnville v. Harrison, 30 Mo. 228; Jamison v. Copher, 35 Mo. 351; Ederlin v. Judge, 36 Mo. 483; Southworth Co. v. Lamb, 82 Mo. 242; Bartley v. Trorlicht, 49 Mo.App. 216; Supperly v. Railroad, 9 How. Pr. 83; 1 Burn's Anno. Code, sec. 413. "If it be true that the petition discloses two causes of action which should have been separately stated, the remedy in such cases is by motion." Childs v. Railroad, 117 Mo. 437; Kern v. Pfaff, 44 Mo.App. 32; Lidel v. Fisher, 48 Mo.App. 454; Mooney v. Kennett, 19 Mo. 551; Otis v. Bank, 35 Mo. 128; Crystal v. Craig, 80 Mo. 367. (2) The court erred in admitting the ordinance in evidence: 1. Because the same is unreasonable and void. It imposes upon the carrier the duty of controlling the acts of passengers, when the passenger is at liberty to act as he pleases. Fortune v. Railroad, 10 Mo.App. 256; Murray v. Railroad, 176 Mo. 183; Hutchinson v. Railroad, 161 Mo. 253. 2. The ordinance requires the conductor to assault the lady, if necessary, to prevent her from getting off the moving car. 3. An ordinance that merely prescribes a penalty for its violations, does not create a liability in favor of a private individual. The only liability which attaches to its infraction is the penalty. Hartford v. Talcott, 48 Conn. 425; Keokuk v. Dist. of Keokuk, 53 Ia. 352; Kirby v. Market Co., 14 Gray 249; Flynn v. Canton Co., 40 Mo. 312. The city has no authority to create any other liability than the penalty it is authorized to impose. Van Dyke v. Cincinnati, 1 Disney 532; Moran v. Car Co., 134 Mo. 631. 4. The inhibition of the ordinance is so broad, when construed in the light of the ordinary duties of a street car conductor, as to make it unreasonable and void. Take a car with an entrance at each end; how can the conductor guard both? In such a case the conductor cannot be charged with such duty. Gebhart v. Railroad, 97 Mo.App. 383.
A. R. Taylor for respondent.
How can there be two causes of action made out of one injury? The injury is the essence of the cause of action, without which any number of negligent acts would fail to make a cause of action. Thus, in this case, if the defendant's servants negligently started the car whilst the plaintiff was getting off, but injury did not result, manifestly there would be no cause of action; and so, if the conductor violated the ordinance in allowing the plaintiff to get off while the car was in motion, but no injury ensued, there would be no cause of action. Our Code requires that the petition shall state the substantive facts constituting the cause of action concisely and without unnecessary repetition. R.S. 1899, sec. 592. This means that the petition should contain averments of all substantive facts relied on for a recovery. Hill v. Railroad, 49 Mo.App. 534; Bradley v. Railroad, 94 Mich. 38.
OPINION
In Banc.
This is an action for damages alleged to have been sustained by the plaintiff, resulting from injuries received in an accident which occurred at the intersection of Delmar and Euclid avenues, in the city of St. Louis, on the 1st day of April, 1901, by reason of one of the cars of the defendant, in which plaintiff was a passenger, being started forward with a jerk just as plaintiff was in the act of alighting therefrom.
The petition alleges that as such car approached said Euclid and Delmar avenues, defendant's conductor in charge of said car called out Euclid avenue, and said car was stopped at or near said crossing, plaintiff's destination, and plaintiff thereupon, at said invitation, proceeded to alight from said car whilst the same was so stopped, and whilst she was in the act of alighting, and before she had reasonable time or opportunity to do so, defendant's servants in charge of said car carelessly and negligently caused and suffered said car to be started, whereby the plaintiff was thrown from said car and sustained great and permanent injuries upon her body and legs, and also great and permanent internal injuries, sustaining an injury to her knee and to her side, causing a compression to her side and chest, and injury to her lungs and causing her to have pleurisy, and also injuring her head and causing a great and permanent injury to her nervous system. And the plaintiff avers that at the time of her said injury there was in force in the city of St. Louis an ordinance of said city by which it was provided that conductors of street cars should not allow women or children to enter or leave the car whilst the same was in motion, yet the plaintiff avers that defendant's conductor in charge of said car, in violation of said ordinance, caused said car to start in motion whilst plaintiff was leaving it, and allowed the plaintiff to leave said car whilst the same was in motion, which violation of said ordinance directly contributed to cause plaintiff's said injuries.
The answer was a general denial, and a plea of contributory negligence on the part of plaintiff in attempting to alight from a moving car, one hundred and fifty feet east of the eastern line of Euclid avenue.
The plaintiff's evidence tended to show that she was at the time of the accident about twenty-five years of age, and receiving fourteen dollars per month for her services as housewoman; that on the day of the accident to her she boarded defendant's west-bound car at Pendleton and Finney avenues, about eight o'clock in the evening, and that her destination was Euclid avenue, or 4900 Delmar avenue; that on the same car with her there were five other passengers, four in the front part and one in the rear part of the car; that when the conductor called for plaintiff's fare she requested him to let her off at 4900 west, or Euclid avenue; that when the car reached said avenue or number it stopped and the conductor from the platform spoke to plaintiff, saying, "this is 4900," and told her to get off, whereupon the plaintiff arose in her seat and went towards and upon the rear platform of the car and took one step, when the car was moved forward with a jerk which threw her to the ground and caused the injuries complained of; that after being thrown from the car plaintiff was taken to St. Joseph Hospital, where she remained ten days under the treatment of physicians then in the service of the St. Louis Transit Company; that upon leaving the hospital she returned to Mrs. Dunn's where she had been employed at the time of the injury, and was thereafter under the treatment of Dr. Grant. Plaintiff stated in her testimony that she was injured on the back of her head and on her side and that her knees and arms were bruised; that she was rendered unconscious by the fall and did not regain consciousness until after she reached the hospital; that after the accident and up to the time of the trial she had a pain in her side and had been subject to fainting spells and had pains in her head constantly; that she was unable to discharge her duties as servant to Mrs. Dunn until May following her injury. Plaintiff proved that she paid thirty dollars for medical services.
Mrs. Dunn, witness for plaintiff, stated that before the injury plaintiff's health was good, but that when she returned after the injury she would complain of her side hurting her and of pains in the back of her neck and head; that she would have fainting spells and at those times would fall forward on the floor, dropping anything she might have in her hands; that these spells at first occurred once or twice a week, and sometimes would be ten days apart and then several weeks or a few months apart, and then come very close together again.
Plaintiff read in evidence article 6, entitled, "Of Street Cars," and subdivision 5 of section 1246, of the Revised Ordinances of the city of St. Louis, as follows: "Conductors shall not allow ladies or children to leave or enter the cars while the same are in motion."
Adolphus Brown, witness for the defendant,...
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