Thompson v. Keyes-Marshall Bros. Livery Co.

• Decision Date: 25 November 1908
• Parties: THOMPSON v. KEYES-MARSHALL BROS. LIVERY CO.
• Court: Missouri Supreme Court

113 S.W. 1128

214 Mo. 487

THOMPSON v. KEYES-MARSHALL BROS. LIVERY CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. NEGLIGENCE (§ 119) — PLEADING — CONSTRUCTION — ISSUES.

The rule that, when a general allegation of negligence is followed by an enumeration of specific acts of negligence, plaintiff will be confined to the negligence specifically assigned, is a general rule of construction not limited to pleading.

2. TORTS (§ 26) — PLEADING — GENERAL AND SPECIFIC ALLEGATIONS.

Generally, a specification of particular misconduct is deemed to explain a preceding general charge of misconduct.

3. PLEADING (§ 52) — DECLARATION — SEPARATE CAUSES OF ACTION — SCOPE OF COUNTS.

A petition for negligent personal injury may charge in the same count several acts not inconsistent with each other, any or all of which might have produced the result complained of, without violating the rule prohibiting the stating of more than one cause of action in one count, and the same count may charge commonlaw and statutory negligence pointing to the same result.

4. PLEADING (§ 34) — CONSTRUCTION IN GENERAL.

In construing a petition for negligent injury to determine whether plaintiff intended to charge one or two acts of negligence, a court must consider not only what the pleader intended, but what defendant had reason to understand was the issue tendered.

5. MUNICIPAL CORPORATIONS (§ 706) — DRIVING IN STREETS — PRIMA FACIE NEGLIGENCE.

Driving a team of horses rapidly into a narrow space where people are standing shows prima facie negligence.

6. MUNICIPAL CORPORATIONS (§ 706) — DRIVING IN STREET — INJURY TO PEDESTRIAN — PLEADING CONSTRUED.

A petition sufficiently states negligence at common law as well as under an ordinance, where it alleges that plaintiff was standing at a street crossing waiting for a car when defendant's employés voluntarily and negligently ran a team of horses against her, thereby injuring her; that, violating a specified ordinance, they drove faster than a moderate gait, did not slacken the pace in approaching the crosswalk, and drove against plaintiff, in consequence of which violation of the ordinance the team was violently and negligently run against plaintiff, etc.

7. MUNICIPAL CORPORATIONS (§ 705) — STREETS — RIGHTS OF PEDESTRIAN.

A pedestrian has the right to stand at a street crossing in waiting for a car.

8. MUNICIPAL CORPORATIONS (§ 706) — DRIVING IN STREET — PEDESTRIAN INJURED — CONTRIBUTORY NEGLIGENCE.

Evidence held to show that a pedestrian run over by a team while waiting on a street crossing for a car was not guilty of contributory negligence.

9. MUNICIPAL CORPORATIONS (§ 706) — REGULATION OF PUBLIC PLACES — STREETS — INJURIES — EVIDENCE.

In an action for injury to a pedestrian run over by a team, testimony that the driver did not seem to have good control of the horses was irrelevant, where plaintiff counted on the driver's voluntary fast driving.

10. EVIDENCE (§ 472) — OPINIONS — MATTERS DIRECTLY IN ISSUE.

In an action for driving a team against one waiting on a street crossing for a car, it was proper to strike out of testimony of another that he saw the team coming very rapidly, and to avoid it jumped on the front end of the car instead of getting on in the usual way, the words "to avoid the team," since they constituted an opinion that the situation was dangerous, which was a question for the court or jury to decide.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Ada Thompson against the Keyes-Marshall Bros. Livery Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J. F. & R. H. Merryman, for appellant. Seddon & Holland, for respondent.

VALLIANT, P. J.

Plaintiff sued for damages for personal injuries sustained by her through, as she alleged, the negligence of defendant. At the close of the plaintiff's testimony the court gave an instruction to the jury that she could not recover because she was guilty of contributory negligence. The verdict of the jury was for the defendant, and the plaintiff appealed.

Plaintiff in her petition states that she was standing in Olive street near the corner of Ninth street at the crossing in a business center of the city greatly traveled by persons on foot waiting for a west-bound street car, "when defendant, by its agents and servants, violently ran a team of horses attached to a vehicle into and against plaintiff, said horses knocking plaintiff down and trampling her under their feet, thereby severely wounding and injuring plaintiff; that the injury to plaintiff was due to the carelessness and negligence of defendant's agent in driving said horses attached to said vehicle at the time and place aforesaid, and in violently running into and against plaintiff." Plaintiff further states that at the time of the injury aforesaid there was in full force and effect in the city of St. Louis an ordinance of said city known as section 1473 of the Municipal Code of St. Louis (edition of 1901), which provides: That "no person who shall in this city ride or drive any animals in any highway, thoroughfare or public place quicker than or beyond a moderate gait, or shall not slacken the pace of such animal or animals in approaching any cross walk upon which any person may be * * * in the act of approaching or leaving a street car, or shall ride or drive any such animals so as to cause any such animal or any vehicle attached thereto to come in collision with or strike any other object or person * * * shall be deemed guilty of a misdemeanor." Then the petition alleges that the defendant did drive the horses "quicker than a moderate gait, and did not slacken the pace," etc., following the language of the ordinance specifically charging the doing of the acts therein forbidden, and that in consequence of the violation of the ordinance the team was violently and negligently run against plaintiff, knocking her down, etc.

At the trial there was evidence tending to show that the defendant did negligently run the team of horses against plaintiff, inflicting the injuries as stated; but the plaintiff did not introduce the alleged ordinance in evidence, and her failure to do so is relied on by defendant as the first ground which justified the court in giving the peremptory instruction. It was not on that ground, however, that the court gave the instruction. The instruction as asked was general in its terms, saying in effect that plaintiff was not entitled to recover. The court refused to give it in that form, but added as the specific reason for giving it, "she having been shown by the evidence to have been guilty of contributory negligence as a matter of law."

1. The insistence of the defendant is that what precedes the paragraph in the petition wherein the ordinance is pleaded is only a general charge of negligence, and that the ordinance and the specifications of acts in violation of it are but specifications under the general charge, and that plaintiff is limited to those specifications; and in support of that contention defendant cites a number of cases, first being McManamee v. Ry., 135 Mo. 440, 37 S. W. 119, wherein at page 447 of 135 Mo., page 121 of 37 S. W., this court said: "The practice is well established in this state that when a general allegation of negligence, like this, is followed by an enumeration and averment of specific acts of negligence, the plaintiff will be confined to the negligence specifically assigned." That rule of interpretation is not a technical rule applicable only to pleading, but is a general rule of construction. A general charge of misconduct followed by specifications of particular acts is, as a general rule, merged into the specifications, or rather the specifications are deemed as explaining what the general charge is intended to mean. That is only the converse of the ejusdem generis rule of construction, which is a rule of common sense, and is aimed to ascertain the true intention of the writer of the document then being construed.

In a petition in which a personal injury is alleged to have been suffered through the negligence of the defendant, the pleader is not limited to one act of negligence, or to two or more acts of the same kind, but may plead in the same count several acts, not inconsistent with each other, either of which, or all of which together, might have produced the result complained of. That form of pleading is not in violation of the rule that not more than one cause of action can be stated in one count, because each and all the several acts pleaded point to but one injury, one wrong, or, in technical language, one injuria, for which reparation is asked. It is therefore competent to include in one count an act or acts constituting negligence at common law and an act or acts of negligence under a statute or ordinance, all pointing to the same result. Section 629, Rev. St. 1899 (Ann. St. 1906, p. 652), is: "In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties." Keeping that mandate in mind when we come to applying the rule of construction we are now considering to a petition like the one in the McManamee Case above mentioned and like the one in the case at bar, our safe course, "in view to substantial justice," is to ascertain what was the intention of the pleader; did he mean to charge two acts of negligence, one at common law and one under the ordinance, or did he mean to charge one act alone, and that one under the ordinance?

But in endeavoring to give effect to the intention of the pleader we must not overlook the fact that what he says in his pleading is the tendering of an issue to his adversary and he must say what he has to say in terms that his adversary will understand. Therefore in construing the petition the inquiry must not stop at what the pleader probably intended, as that intention may be...