Raybourn v. Phillips
| Decision Date | 07 November 1911 |
| Citation | 140 S.W. 977,160 Mo.App. 534 |
| Parties | GEORGE RAYBOURN, Respondent, v. J. W. PHILLIPS, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted October 11, 1911.
Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Ely Kelso & Miller for appellant.
(1) The court was in error in trying this case throughout, for it was submitted to the jury, over the objections and exceptions of the defendant, both as to the testimony and the instructions given at the instance of plaintiff without regard to the allegation of negligence relied upon by plaintiff in his petition, and wholly disregarding the plea of contributory negligence set up by the defendant. Ellis v Railroad, 17 Mo.App. 126; Grocery Co. v. Railroad, 89 Mo.App. 534; Aston v. Transit Co., 105 Mo.App. 226; McCarty v. Hotel Co., 144 Mo. 397; Chitty v. Railroad, 148 Mo. 75. (2) The court erred in giving instruction numbered five at the instance and request of plaintiff, over the objection and exception of defendant. This instruction told the jury that if the defendant failed to keep a vigilant watch or lookout while operating his car upon one of the public highways of the county, then their verdict should be for the plaintiff. The instruction also authorized the jury to find for plaintiff if they believed the injury was caused by the "negligent acts" of defendant. The expression "negligent acts" is not defined in this nor any other instruction given in the case. This should have been defined or explained and limited to the negligence specifically complained of in the petition, and there is no testimony whatever to warrant the instruction clear outside of the pleadings as to a vigilant watch or lookout. See authorities cited under point 1. Magrane v. Railroad, 183 Mo. 132.
Orren Wilson, for respondent, filed argument.
This action was commenced in the circuit court of Cape Girardeau county by plaintiff against defendant, to recover damages for injury to a mule. From a judgment for $ 145 in favor of plaintiff, defendant appealed to this court, from which the cause was transferred to the Springfield Court of Appeals under the provisions of the Act of the General Assembly of the state (Laws 1909, p. 396, now section 3939, R. S. 1909, but before submission to that court was transferred back to this court in consequence of a decision of the Supreme Court in State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon et al., 232 Mo. 496, 134 S.W. 538, and was argued and submitted to us by counsel for the respective parties.
Along with his brief on the merits, counsel for respondent files a motion to dismiss the appeal, claiming that it does not appear by the abstract of the record, either that motions for new trial and in arrest had been filed or when they were filed in the circuit court. That motion is disposed of by saying that the printed abstract of the record before us shows these facts with sufficient accuracy to render the point untenable.
Turning to the case itself, the petition upon which it was tried, after stating with great prolixity the fact that defendant was a common carrier of passengers and was running an automobile owned by him along a public road, at the time going from Jackson to Cape Girardeau, and that plaintiff was driving his wagon and team of mules along the same road from Cape Girardeau to Jackson, avers that when about half way between the two cities the automobile and the team met and in passing the automobile ran against one of the mules plaintiff was driving and broke its leg. We will give plaintiff the benefit of his petition, so far as it contains the averment of negligence, word for word and exactly as printed in the abstract. It is as follows: That "the defendant, his agents, servants, and the owner of said automobile, and in charge of same, automobile car driven by motor power, so carelessly, negligently, maliciously, wantonly, and refused to use ordinary, care and diligence, prudence, in the premises, and with impunity, conducted themselves, and the speed, and movements of said engine, propelling, said motor car, and the movements, and speed of said automobile car, in the operation of said car, then and there in charge of the defendant, his agents, servants, employee, and owner.
"And that by the reason wanton, negligent, unskillfulness and want of ordinary care prudence, and diligence, did with great force, violence, while the defendant was operating his system of automobiles, line of cars, at a great and dangerous rate of speed, far in excess of the speed limit prescribed by law, under the circumstances, and premises run said automobile, then in charge of the defendant upon against, over, and come in direct contact with, with great force, and hit, bruise, wound, lacerate, one of the mules of plaintiff, while being drove, upon the aforesaid public road highway thoroughfare, aforesaid, and circumstances, and premises as aforesaid, thereby, with sufficient force, and power to break, the leg of his mule, whereby said animal was deprived of the use of, one leg, and felled, and knocked down, and permanently wounded, and injured, rendering same unfit for service, as a sales animal, and totally unfitting said animal for service, to its owner, this plaintiff, as a work animal, and thereby this plaintiff has lost the use of and the value of said animal, as its usefulness has been totally destroyed." Actual damages are laid at $ 200 and punitive damages asked for in the sum of $ 200.
The answer, after a general denial, charges contributory negligence on the part of plaintiff. A general denial was filed to this new matter by way of a reply.
At the trial, which was before the court and a jury, counsel for plaintiff asked one of his witnesses if there were lights on the machine. This was objected to on the ground that there was no allegation in the petition that defendant was running without lights. The objection was overruled, defendant duly excepting, and the witness answered that there was a light system but that something was not in working order and the lamp started to burn and was thrown out in the street. This witness was also asked if defendant had sounded a gong or bell before the accident occurred. This was objected to on the ground that there were no allegations of that in the petition, and the witness answered, "No."
The two vehicles appear to have met about the summit of the hill plaintiff coming up over the summit and starting down, defendant going up and not yet having reached or passed the summit. Each kept to the right. The only evidence in the case as to the rate of speed at which the automobile was going at the time was this: One of the witnesses for plaintiff, a passenger in the automobile driven by defendant, testified that when they started up the hill, the automobile was going at the rate of twenty miles an hour. This same witness, however, when asked at what rate of speed the automobile was going at the time it collided with the wagon, answered, "It was at least ten miles an hour;" could not say how fast the wagon was going. He further said, when asked how long it was from the time that the machine was within ten feet of the team until those in the machine were passing the wagon, that it was ...
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