Sommers v. St. Louis Transit Co.

• Decision Date: 15 November 1904
• Citation: 83 S.W. 268,108 Mo. App. 319
• Court: Missouri Court of Appeals
• Parties: SOMMERS v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 268

108 Mo. App. 319

SOMMERS v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

November 15, 1904.

STREET RAILROADS — INJURY AT CROSSINGS — EVIDENCE — INSTRUCTIONS — PETITION — SUFFICIENCY.

1. A petition in an action against a street railway company for injuries sustained in a collision on the company's tracks, alleging that a car was negligently caused to run into his vehicle, is insufficient as against a motion to require the specific acts or omissions constituting the negligence complained of to be set forth.

2. Where, in an action against a street railway company for a collision with a car at a crossing, the evidence showed negligence in the running of the car at excessive speed, in the failure to sound the bell or to attempt to stop the car after discovering the danger, instructions authorizing a verdict for plaintiff on a finding that the car was negligently run against his vehicle, and stating that it was the duty of the motorman to exercise ordinary care, and any failure to do so constituted negligence warranting a recovery unless plaintiff was negligent, were erroneous, because not restricting the jury to the acts of negligence shown by the proof.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Jacob Sommers against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman and John A. Talty, for appellant. Seneca N. & S. C. Taylor, for respondent.

GOODE, J.

Respondent's person and property were injured by a collision with one of appellant's electric cars in St. Louis. This case is founded on that accident. According to the testimony of the respondent himself, he drove down the west side of Broadway until he same to its intersection with Wash street, where the route he intended to pursue turned abruptly to the east on Wash street. Parallel tracks run along Broadway, and the appellant stopped to the west of them, he said, until three cars passed, two going south on the west track and one north on the east track. When these cars had gone by, and before starting his team across the tracks, he looked to assure himself whether he could cross in safety, and saw another car coming from the south, but a block away. Thinking he had time to get over the tracks before that car would reach him, he started across, driving at the rate of 2½ miles an hour. The car struck the wagon behind the front wheels, and the injuries complained of resulted. Respondent's wagon was loaded with potatoes, and he excused the slow speed at which he drove as being required to keep the potatoes from jolting out of the wagon.

The important points in this case, in our estimation, are the indefiniteness of the petition in specifying the negligent acts of which the appellant is accused, and the like vagueness and generality of the instructions in advising the jury what negligent acts they must find the appellant guilty of in order to give a verdict against it. The petition reads as follows: "That on or about the 27th day of July, 1903, plaintiff was seated in a wagon owned by himself, and driving a team of horses hitched thereto, owned by himself, upon said Wash street, and across said Broadway, and across the tracks of said defendant at the intersection of said streets; and while so driving across said tracks one of said defendant's motor cars, run and operated by defendant's motorman, and in his charge as agent and servant of defendant, was carelessly and negligently caused to run up to and against said wagon with great force and violence as plaintiff was crossing said tracks in said wagon." Nothing specific was stated as to the alleged negligent manner in which appellant's motorman ran the car against the respondent's wagon. The petition counts generally on common-law negligence. This kind of pleading is good if no proper exception is taken to it. Edens v. R. R., 72 Mo. 212; Pope v. R. R., 99 Mo. 400, 12 S. W. 891. But in the present case appellant took the right means to have the charge of negligence made clear and definite. Before answering and before trial it moved the court to have the charge of negligence relieved of generality by requiring the respondent to specify the acts or omissions of the appellant's employés which were complained of as negligent. This motion was overruled, and an exception saved and duly preserved by bill. Afterwards the appellant answered, and the trial proceeded to a verdict against it. There can be no doubt, we think, that the motion ought to have been sustained. The suing party in a negligence case may state a case of common law, as well as of statutory or ordinance negligence; but, whichever is stated, the specific acts of negligence must be given if they are called for. Waldhier v. R. R., 71 Mo. 514; Edens v. R. R., supra. And so a general plea of contributory negligence in an answer should be corrected if a motion is filed for a more definite statement. Haynes v. City of Trenton, 123 Mo. 326, 27 S. W. 622. The decisions in this state are extremely perplexing as to whether an error like the one under advisement is waived by answering; that is to say, whether a defendant, in order to be heard to complain on appeal of the overruling of a motion to make a petition definite, must stand on his motion. It is well settled that one cannot attack...