80 Mo. App. 515 | Mo. Ct. App. | 1899
On the thirtieth day of May, 1896, plaintiff who is a young lady and school teacher, was a passenger on one of the cars of defendant which was attached t'o a motor propelled by electricity over certain streets in this city. -At a certain point in the progress of the train its overhead wire broke and fell upon the cars, emitting hissing sounds, sparks of fire, and producing a shock among the passengers, besides releasing the train from the control of the motorman and causing it to descend rapidly a downward grade which it had reached at the time of the accident. After reciting the foregoing facts, the petition of plaintiff further alleges, “that in consequence of the freight so engendered, the passengers both upon said motor and trailer cars became generally frightened, and screamed and cried out, and rushed and crowded and pushed each other to get out of said trailer car and escape from the danger which surrounded them; that in the attempt of
The answer was a general denial and a plea of contributory negligence on the part of the plaintiff in negligently jumping off defendant’s car while it was in motion. No formal reply was filed. There was a verdict for plaintiff for $2,500. Defendant appealed.
The first error assigned is the refusal of the court to direct a verdict for the defendant. It is argued in support of this assignment that the proof wholly failed to support the particular cause of action alleged in the petition, hence under the rule restricting the right of recovery to the issues made by the pleadings the defendant was entitled to a verdict. There is no question as to the correctness of this rule of law. Mason v. Railway, 75 Mo. App. 2; Worthington v. Railway, 72 Mo. App. 162; Christian v. Ins. Co., 143 Mo. 460. In the latter case it is said: “Hitherto it has been supposed that the issues to be raised in a cause had to be raised alone by the pleadings, and could not be enlarged by the evidence, or the instructions, nor indeed by both combined.” The questions, therefore, are, what were the issues joined? And does the record show a total failure of proof of the ground of recovery set forth in the petition? That pleading by its terms hereinbefore set forth, charges plaintiff’s injuries to her having been thrown on the ground in the attempt of the passengers by-rushing, crowding and pushing each other, to escape from the car, which they were impelled to do by the negligence of the defendant. Assuming for the argument that this averment constituted the sole ground of plaintiff’s right to recover, and leaving out of view whether the answer of defendant did not tender a broader issue, -the question is, how was it met by the proof in the record? After graphically describing the accident and fright occasioned to the passengers by the electrical effects of the falling wire when it touched the cars, plaintiff states, that she
It is next insisted that the court erred in instruction number 4, given for plaintiff, wherein the court presented to the jury the facts and circumstances tending to show that the plaintiff was not guilty of the contributory negligence charged in the answer averring that she jumped off the car in disregard of “ordinary .care, or reasonable care for her personal safety.” •The instruction in question did not direct a verdict for plaintiff upon the facts assumed. It merely told the jury that if they found these facts to be true, plaintiff was not guilty of the contributory negligence pleaded in the answer. If the instruction had directed a verdict for plaintiff it would have
Lastly it is insisted that the verdict is excessive. It was all the plaintiff claimed, and was certainly full compensation for the injuries sustained by her, but we are not prepared to say that it was wholly unsupported by the evidence, for the testimony of plaintiff on her own behalf indicates such suffering and ill-results to her nervous system and general health, as would entitle her to the amount awarded. Finding no reversible error in the record, the judgment' is affirmed.