Boyd v. St. Louis Transit Co., 108 Mo. App. 303

Boyd v. St. Louis Transit Co.

108 Mo. App. 303 | Mo. Ct. App. | 1904

REYBURN, J.

— 1. Plaintiff brought this action to recover for loss sustained in the destruction of his horse and wagon by a street car of the defendant near Twelfth street and Washington avenue in the city of St. Louis. In detailing his cause of action the plaintiff stated that the injury “was negligently, willfully and carelessly done and inflicted” and that the “agents, servants and employees of the defendant willfully, carelessly and intentionally ran said car upon and on the wagon and horse of the said plaintiff.” The defendant answered that the collision was caused without fault on its part by the team of plaintiff pulling into the side of defendant’s car. At the threshold of the trial, before the .introduction of any evidence, defendant moved that the plaintiff be required to elect which cause of action he intended to press, assigning that the petition contained averments of both trespass and negligence; but the court overruled the application and the trial proceeded.

The petition confused and united inconsistent and repugnant allegations, as negligence and willfulness can not concur or coexist in a single act; testimony tending to sustain the charge of negligence and carelessness would negative and disprove willfulness or intentionally and proof that the wrongdoing on the part of defendant was deliberate would exclude negligence, and contributory negligence would be no defense available to defendant for injury wantonly committed. Raming v. Railway, 157 Mo. 477, 57 S. W. 268; Holwerson v. Railway, 157 Mo. 216, 57 S. W. 770; Bindbeutel v. Railway, 43 Mo. App. 463. The defect in the petition might *306properly have been made ground of a seasonable demurrer, under the express statutory provision, that several causes of action were improperly united. Sec. 598, Revised Statutes 1899; McQuillan, Pleading, sec. 198; Blair v. Railroad, 89 Mo. 1. c. 394; Union Bank v. Dillon, 75 Mo. 380. The practice of delaying assaults upon pleadings until the moment of trial cannot be commended (Haseltine v. Smith, 154 Mo. 404), and by joining issue and proceeding to trial, the misjoinder was waived, and the motion should have been presented before the answer was filed. Murphy v. Transit Co., 96 Mo. App. 272, 70 S. W. 159; Snyder v. Parker, 75 Mo. App. 529; Walters v. Hamilton, 75 Mo. App. 237; Blair v. Railroad, 89 Mo. 383; Wilson v. Railway, 67 Mo. App. 443; Stevenson v. Judy, 49 Mo. 227; Fadley v. Smith, 23 Mo. App. 87; R. S. 1899, sec. 602.

2. The charge to the jury was made up of a series of instructions at instance, of defendant presenting its theory of defense and the following isolated instruction on behalf of the plaintiff:

“The court instructs the jury that if they find the issues herein for the plaintiff, they will take into consideration in estimating his damages, such injury as they may find him to have sustained in the striking of tiie horse mentioned in evidence, by the car of the defendant, and the injury to the said horse, the injury to the wagon in question by the striking of the same by the said car, and the expenses he was necessarily at in repairing the said wagon, if they find from the evidence that such injuries were inflicted and by the plaintiff sustained, not exceeding the sum' of $253.00.”

This instruction is defective and insufficient in not distinguishingor indicating the issues in the case, which is the -province of the court to do, nor does it specify what facts if found by the jury would warrant a verdict for plaintiff, and it remitted the jury unguided to ascertain and determine what the issues might be; nor was this infirmity cured by those given for *307defendant, for if the jury had been controlled by the latter instructions the verdict would not have been in plaintiff’s favor. Allen v. Transit Co., 81 S. W. 1142; Fleischmann v. Miller, 38 Mo. App. 177; Gessley v. Railroad, 26 Mo. App. 156.

The judgment is reversed and the cause remanded.

All concur.