Monday v. St. Joseph Ry., Light, Heat & Power Co.

• Decision Date: 03 May 1909
• Citation: 119 S.W. 24,136 Mo. App. 692
• Parties: MONDAY v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.
• Court: Missouri Court of Appeals

119 S.W. 24

136 Mo. App. 692

MONDAY v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.

Kansas City Court of Appeals, Missouri.

May 3, 1909.

Rehearing Denied May 17, 1909.

1. CARRIERS (§ 314)—INJURY TO PASSENGER —PLEADING—GENERAL NEGLIGENCE.

A petition, alleging in general terms that defendant's servants negligently operated the street car on which plaintiff was a passenger, and as a result of such negligence it ran against a wagon in the street and plaintiff was thereby injured, charges general negligence and is sufficient.

2. CARRIERS (§ 320)—INJURY TO PASSENGER —NEGLIGENCE—QUESTION FOR JURY.

Where the evidence shows that plaintiff was a passenger on an open street car, and that the conductor while on the running board on the side of the car, in attempting to swing around a passenger in collecting fares, struck a wagon near the track causing it to swerve so as to throw the pole of the wagon into the car and against plaintiff, and that the car was running at the rate of 14 or 15 miles an hour, the question of defendant's negligence was for the jury.

3. NEGLIGENCE (§ 60)—LIABILITY FOR NEGLIGENT ACT.

No liability is incurred by negligent acts, the results of which are beyond any reasonable expectation.

4. TRIAL (§ 143)—QUESTION FOR JURY.

Where reasonable persons might come to different conclusions on the facts presented by the evidence, the case should be submitted to a jury.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by J. M. Monday against the St. Joseph Railway, Light, Heat & Power Company. From a judgment for plaintiff, defendant appeals. Reversed.

R. A. Brown, for appellant. Mytton & Parkinson, for respondent.

ELLISON, J.

Plaintiff's action was brought to recover damages for injuries received while a passenger on one of defendant's street cars in the city of St. Joseph. He recovered judgment in the circuit court.

One of the chief objections urged for reversal is that the court erred, as shown by its action in giving certain of plaintiff's instructions, in taking the view that the petition charged negligence generally. Defendant claims that specific negligence is charged, and that the order of proof and the instructions based thereon ought to have been as is proper in cases of specific negligence, instead of general negligence. That part of the petition bearing upon the question is as follows: "Plaintiff further states: That on or about the 16th day of October, 1907, he became a passenger for hire on one of the cars of the defendant railway company, on what is commonly known as the `Union Line'; that while a passenger on said car, which was proceeding in a northerly direction on Sixth street over and in the immediate proximity of the viaduct just south of Atchison street, the agents, servants, and employés of defendant railway company, operating said car at said time, negligently, carelessly, and recklessly operated said car so that they ran said car into a wagon which was near said track then and there, and thereby negligently, carelessly, and recklessly throwing plaintiff with great violence from his seat and causing him to come in contact with said wagon, on account of which he received and sustained great bodily injuries." In our opinion the...