Aston v. St. Louis Transit Co., 105 Mo. App. 226

Aston v. St. Louis Transit Co.

105 Mo. App. 226 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts as above).

—1. T!he first point made by appellant, is that the; trial court erred in admitting the opinions of witnesses, *231introduced by plaintiff as to the rate of speed attained by defendant’s car. That the velocity of a car or a train in motion, propelled by electric or steam power does not require to be established by the testimony of experts, is now fixed beyond reasonable question. No technical knowledge is essential to form an opinion upon such subject, nor does it involve any scientific question to be answered only by a skilled witness, but it relates to a matter of common observation, and any intelligent person accustomed to notice moving objects, who had opportunity of seeing a car or train, would be enabled to form some opinion; the experience and capacity of the testifying witness and tire consequent reliability and value of his testimony would affect the weight but not the competency and admissibility of the evidence. "Walsh v. Railway, 102 Mo. 582; Corell v. Railway, 82 Mo. App. 181; Lehigh, etc., Co. v. Rainey, 112 Fed. Rep. 485; Detroit, etc., Co. v. Van Steinburg, 17 Mich. 99 ; Louisville, etc., Railway v. Jones, 108 Ind. 551. The witnesses, who testified to the rate of motion of this car, were accustomed to railroad travel, many rode daily on street cars, and some of them had travelled frequently on steam railroads also, and were undoubtedly qualified to express their judgments upon the rapidity at which this car was operated, leaving the jury to give such testimony the weigh.t it merited. In the ease of Muth v. Railway, 87 Mo. App. 422, invoked by appellant, the testimony criticised appears to have emanated from non-observant, inexperienced witnesses without any opportunities for forming opinions of the speed of the moving car in question.

2. The second assignment of error presented by appellant declares that the instructions for plaintiff, directed to the merits of the case exceed and broaden the issues, and warrant the jury to return a verdict against defendant upon any cause of negligence, whether pleaded or omitted by plaintiff. The rule is *232recognized, and approved, so well settled and so frequently repeated, that a plaintiff cannot allege one cause of action and recover upon proof of another not stated; and that when a plaintiff alleges specific acts of negligence on defendant’s part, the evidence and likewise the right of recovery will be confined to the specific acts charged. Chitty v. Railway, 148 Mo. 64; Hite v. Railway, 130 Mo. 132; Feary v. Railway, 162 Mo. 75.

It is impossible, however, to find any just ground for charge of infraction of above principle in the instructions criticised; the first instruction in express terms directed the jury in passing upon the question whether the defendant was, or was not negligent, in operating its cars on the occasion in question, to take into consideration all the facts and circumstances as shown by the evidence to have existed at the time when, and the place where, the injury in question occurred, and to give to each fact and circumstance and the testimony of each witness, such weight only, as it deemed such fact, circumstance or testimony entitled to, in connection with all the evidence in the case. If further limitation was essential this instruction was qualified by the succeeding instructions, particularly those numbered two, four and five of appellant. The second particularly declared there was no issue that the gate was not properly made nor of a safe kind or the fastenings not of a safe kind; but the actual issue was that the gate was not securely fastened, but was left in a negligent condition liable to swing open and allow plaintiff to be thrown from the platform. In fact the infirmity of widening the issues beyond the range of the pleadings if yielded to by -the court, was invited by appellant-in its fourth instruction which infused, for the consideration and finding of the jury, the additional issues, whether the gate was safe and of the latest and most approved pattern manufactured for the use and construction of street cars, and the fastenings of the safest kind known to street railroad service; no evidence appeared touching the pattern of the gate or demonstrating that the fastenings were the latest' and safest kind or otherwise. The same instruction is amenable to *233.further like charge in submitting the question, whether the gate, without knowledge or consent of defendant or its employees, was unfastened by some passenger or other person, in which contingencies, the jury was instructed, defendant was not liable; the record is destitute of any testimony tending to prove that any stranger or in fact any person opened the gate.

3. Nor are the reflections upon the remaining instructions of plaintiff well founded, or sustained. No allegation was made in the statement of the cause of action, nor was any proof tendered by plaintiff of the gate breaking, and in such confined sense it may be claimed, as pressed by appellant, that it did not give away, but such language in a broader construction of those terms was appropriately used in the instruction descriptive of the occurrence, not necessarily involving the element or existence of fracture or forcible separation in itself, but of partial yielding and disconnection from its position as a barrier and safeguard on one side of the platform, and in which meaning the words were employed, adopted and applied throughout without any probability or even possibility of confusing or misunderstanding by the jury. The degree of care imposed on defendant was defined with accuracy and precision by the instructions in accordance with the rulings frequently announced in this state. High v. Railway, 130 Mo. 132; Clark v. Railroad, 127 Mo. 197; O’Connell v. Railroad, 106 Mo. 482; Chouquette v. Railway, 80 Mo. App. 515; Jackson v. Railway, 118 Mo. 199; Olsen v. Railway, 152 Mo. 426; Sullivan v. Railway, 133 Mo. 1.

The instructions also properly and in appropriate language submitted to the jury the presumption of negligence imputable from the occurrence itself; the passenger by showing the happening of the accident made out a prima facie case, and the burden shifted to the defendant to exculpate and absolve itself from presumptive and inferred negligence, and it was for the jury to say, in the light of all the testimony, whether defendant had in its defense disclosed facts exonerating it from responsibility. Chouquette v. Railway and Clark *234v. Bailroad, supra; Furnish v. Railway, 102 Mo. 438; Hipsley v. Railway, 88 Mo. 348.

4. The respondent insists that the appeal is so plainly devoid of merit and manifestly vexatious, as to demand and justify an award of damages under the plainly devoid of merit an award of damages under the statute. B. S. 1899, sec. 867. We cannot assent to this view nor are we willing to declare from full review of the record that the appeal was not taken in good faith, or that this case properly belongs to the class contemplated by above statutory provision.

The judgment is affirmed.

Bland, P. J., and Goode, J., concur.