Miller v. United Railways Company of St. Louis And American Storage
| Decision Date | 21 February 1911 |
| Citation | 134 S.W. 1045,155 Mo.App. 528 |
| Parties | ALBERT H. MILLER, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS and AMERICAN STORAGE AND MOVING COMPANY, Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
Judgment reversed and cause remanded.
B. O Davidson and A. R. Russell for appellant, American Storage & Moving Company.
(1) A demurrer to the plaintiff's evidence should be sustained upon his failure to prove the specific acts of negligence alleged. Davidson v. St. Louis Transit Co., 211 Mo 320; Kellogg v. Kirksville, 132 Mo.App. 519; Smith v. Railroad, 126 Mo.App. 120; McCarty v Rood Hotel Co., 144 Mo. 397; Price v. Railroad, 72 Mo. 414; Hurley v. Railroad, 57 Mo.App. 675; Bohn v. Railroad, 106 Mo. 429; Current v. Railroad, 86 Mo. 62; Kennedy v. Railroad, 128 Mo.App. 297; Debolt v. Railroad, 123 Mo. 496; Hite v. Railroad, 130 Mo. 132; Yarnell v. Railroad, 113 Mo. 570; Spiro v. St. Louis Transit Co., 102 Mo.App. 250. (2) When plaintiff chooses to allege in his petition specific of negligence, his right to recover depends upon proof of such specific acts, and he cannot recover upon other facts not alleged or upon a showing of general or presumptive negligence. Feary v. Railroad, 162 Mo. 75; Wilbur v. Railroad, 110 Mo.App. 689; Bartley v. Railroad, 148 Mo. 124; McManamee v. Railroad, 135 Mo. 440; Hite v. Railroad, 130 Mo. 132; Bunyan v. Railroad, 127 Mo. 12; Leslie v. Railroad, 113 Mo. 570; Ely v. Railroad, 77 Mo. 34; Waldhier v. Railroad, 71 Mo. 514; Hamilton v. Railroad, 114 Mo.App. 504. (3) An instruction authorizing a recovery upon the finding of facts outside the issues made by the pleadings is erroneous. McQuillin's Instructions in Civil Cases, sec. 71. (4) It is error to refuse to instruct the jury that no recovery can be had for the result of a mere accident. Henry v. Railroad, 113 Mo. 525; Feary v. Railroad, 162 Mo. 75; Maxey v. Railroad, 95 Mo.App. 308; Groom v. Kavanaugh, 97 Mo.App. 370. (5) A recovery can only be had when the negligence alleged and proven is the proximate cause of the injury. The proximate cause of an injury is the culpable or negligent act nearest to and immediately preceding the injury, 29 Cyc. 496; Foley v. McMahon, 114 Mo.App. 442; Hensler v. Stix, 113 Mo.App. 165; Lindvall v. Woods, 44 F. 857; 1 Thompson on Negligence, Sec. 55; Shearman & Redfield on Negligence (5 Ed.), sec. 36; Saxton v. Railroad, 98 Mo.App. 501; Klockenbrink v. Railroad, 81 Mo.App. 351.
Glendy B. Arnold for appellant, United Railways Company.
Boyle & Priest of counsel.
(1) Plaintiff's petition does not state a cause of action. Brown v. Railroad, 20 Mo.App. 222; Stepp v. Railroad, 85 Mo. 229; Evans v. Railroad, 222 Mo. 435; Hof v. Transit Co., 213 Mo. 445. (2) Plaintiff's second instruction is broader than the allegations of his petition. Davidson v. Railroad, 211 Mo. 320. (3) Plaintiff's second instruction is erroneous because it authorizes a verdict for plaintiff if the jury believe that the negligence of the motorman of defendant, United Railways Company, caused the collision, when there is no such allegation contained in plaintiff's petition. Heinzle v. Railroad, 182 Mo. 528.
Wm. R. Gentry for respondent.
(1) The petition conforms entirely to the requirements of our code, which requires a plain and succinct statement of the substantive facts relied on in the case by plaintiff. It does not require the use of the word "proximate," or the use of the word "direct" in such cases. O'Rourke v. Railroad, 142 Mo. 342; Taylor v. Railroad, 137 Mo. 263; Kleiber v. Railroad, 107 Mo. 240; Stotler v. Railroad, 200 Mo. 107; Hunt v. Railroad, 14 Mo.App. 160. (2) Under the decisions of this court and the Supreme Court, a prima facie case was made out by the plaintiff as soon as he showed that the running team and van collided with the side of the car in which he was riding as a passenger and inflicted injury upon him. Olson v. Railroad, 152 Mo. 432; Williamson v. Railroad, 133 Mo.App. 375; Parker v. Railroad, 69 Mo.App. 546. (3) Plaintiff's instruction No. 2 was not a departure from the language of the petition. Loftus v. Railroad, 220 Mo. 482; Price v. Railway, 220 Mo. 435. (4) It is the well established rule that leaving a horse or horses standing upon or near a street unattended and not hitched is prima facie negligence, and proof of such facts coupled with injury resulting therefrom to the plaintiff, entitles him to have his cause submitted to the jury, nor does the fact that the horses were gentle, excuse the defendant for leaving them unhitched and unattended. Zambelli v. Johnson & Co., 39 Southern 501, 115 La. 483; Hensley v. Davidson Bros., 103 Me. 975; Turner v. Page, 186 Mass. 600; Haywood v. Hamm, 58 A. 595, 77 Conn. 158; Wasmuth v. Butler, 86 Hun. 1; Transfer Co. v. Renard, 79 S.W. 838; Gorsuch v. Swan, 69 S.W. 1113; McMahon v. Kelly, 30 N.Y. 915; Matheny v. Ranenbuehler, 75 N.Y.S. 714; Kelly v. Adelman, 76 N.Y.S. 574; Hawley v. Kramer, 73 N.Y.S. 142; Wagner v. Condensed Milk Co., 46 N.Y.S. 939; Phillips v. Wald, 79 Ga. 732; Seiter v. Bischof, 63 Mo.App. 157; Hill v. Scott, 38 Mo.App. 370; Groom v. Kavanaugh, 97 Mo.App. 362; Wagner v. Goldsmith, 78 Ind. 517; Moulton v. Aldrich, 28 Kan. 300; Pierce v. Conners, 20 Colo. 178, 46 Am. St. Rep. 279; Bigelow v. Reed, 51 Me. 325; Greenwood v. Callahan, 111 Mass. 298; Courternier v. Secombe, 8 Minn. 299; Griggs v. Flenkenstein, 14 Minn. 87; McCahill v. Kipp (N. Y.), 2 E. D. Smith 413; Dougherty v. Sweester, 82 Hun. 556; Gaimon v. Wilson, 5 A. 38; Thompson on Negligence, secs. 899, 1294; Tenny v. Tuttle, 1 Allen 185. (5) The mere fact that one person or corporation does a negligent act, does not excuse another one who does another negligent act. If it did, the rule would work both ways and a plaintiff could recover of neither because both were negligent. This question is well settled in this state. Taylor v. Railroad, 137 Mo. 363; Fledderman v. Transit Co., 113 S.W. 1145; Obermeyer v. Chair Co., 120 Mo.App. 74, and cases cited; Hunt v. Railroad, 14 Mo.App. 160.
This is a suit for damages accrued to plaintiff on account of personal injuries received through the separate negligent acts of the two defendants, which concurred in inflicting his hurt. Plaintiff recovered against both defendants jointly and they each prosecute an appeal from that judgment.
Defendant, United Railways Company, incorporated, owns and operates a street railway system in the city of St. Louis, and defendant, American Storage & Moving Company, incorporated, owns and operates a storage and moving business in which it employs teams of horses and heavy moving vans in the same city. Plaintiff was a passenger on the street car of defendant, United Railways Company, operated by it on the Taylor avenue line, and at the time of his injury was going north on such line on Euclid avenue at its point of crossing with West Pine Boulevard. Plaintiff occupied the rear seat which runs lengthwise along the west side of the car, and while thus sitting reading a newspaper, a runaway team of horses drawing a moving van owned by the American Storage & Moving Company collided with the rear end of the car adjacent, with sufficient force to protrude the forward end of the wagon pole through the side of the car and inflict serious injuries upon him. The wagon pole crushed through the side of the street car and struck plaintiff in the back with sufficient force to throw him out of his seat, break several of his ribs and inflict serious and painful internal injuries. The suit is prosecuted against both the railways company, of whom he was a passenger, and the storage and moving company, who owned the team and van, jointly, on the theory that each defendant was guilty of separate negligent acts which concurred proximately to occasion plaintiff's injury and consequent damage. The specific act of negligence relied upon for a recovery against the storage and moving company is, that it left its team of horses not hitched and unattended in an open space near a public street of a great city, thus permitting them to escape and contribute to his injury, while the negligence alleged against the street car company is to the effect that its motorman so negligently managed and ran the car on which plaintiff was a passenger as to permit the collision to occur. And it is averred that these negligent omissions of duty on the part of the two defendants directly concurred and contributed to cause the injury complained of.
We will first consider the arguments advanced for a reversal of the judgment by the storage and moving company and second those by the other defendant. It is argued on the part of the storage and moving company that the court should have directed a verdict for it, for the reason plaintiff failed to sustain the burden which the law cast upon him to prove the specific act of negligence alleged against it in the petition. But on consideration of the proof made, we believe the argument to be unsound, for though the team of horses appear to have been hitched to the hounds of the van, it was for the jury to answer as to whether such hitching was reasonably secure; or, in other words, as to whether ordinary care was exercised by defendant to that end. It appears the employees of the storage and moving company had transported a piano to the Monticello Hotel, located on Kingshighway near West Pine boulevard and upon arriving there drove the team and van into an open space in the rear adjacent to the hotel building. The team is shown to have been facing west and stopped with the horses' heads fronting a stone wall and when in this position were permitted to stand unattended in the interim the...
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