224 Mo. 97 | Mo. | 1909
This is an action brought by the plaintiff for damages sustained by him in the city of St. Louis on the 18th day of September, 1903. In the petition it is alleged that on the said 18th day of September, 1903, about eight o ’clock p. m., and after dark, at or near the corner of Yandeventer avenue and Morgan street, the plaintiff became a passenger on one of defendant’s street cars for a trip westwardly, and paid his fare;
The damages were laid at ten thousand dollars compensatory and five thousand dollars punitive.
The answer was a general denial coupled with a plea of contributory negligence.
The reply was a traverse of the new matter in the answer.
The evidence tended to show that on the 18th day
There was no light at the Clara Avenue Station that night. The defendant offered evidence tending to show that on the night of the injury, the plaintiff stated to two different persons that he knew he was being carried past Clara Avenue Station, and when he got off the conductor told him to go back. But the plaintiff in rebuttal contradicted the evidence of Doctor Ambrose as to his alleged statements to him.
OPINION.
I:
On two grounds, the defendant insists the plaintiff did not make a ease entitling him to recover— first, because the testimony did not establish any proximate connection between the fact that the plaintiff was negligently carried past his destination and his subsequent falling into the ditch, under a mistaken idea of his surroundings, and second, because plaintiff’s contributory negligence, in failing to look about him after he alighted from the car, ought to debar his recovery. These propositions will be considered in their order.
Was the conduct of the conductor in failing to stop the ear at Clara Avenue Station as he had been requested by plaintiff and had agreed to do, and in stopping the car, in the nighttime and, at least practically, directing him to get off in close proximity to
Counsel for the defendant says it is a very reasonable requirement to say that a carrier should anticipate when it puts a passenger off in the darkness and
This court, in McGee v. Railroad; 92 Mo. 1. c. 219, adopts with approval the language of Beach on Contributory Negligence, page 71, sec. 23, as follows: “When defendant by his own negligent or wrongful acts or omissions, throws plaintiff off his guard, or when the plaintiff acts in a given instance upon a reasonable supposition of safety induced by the defendant, when there is, in reality, danger to which plaintiff is exposing himself in a way and to an extent which, but for the defendant’s inducement, might be imputed to the plaintiff as negligence, sufficient to prevent a recovery, such conduct on the part of plaintiff, so induced, will not constitute contributory negligence in law,” etc. Granting that plaintiff was confused, having just alighted from a brilliantly lighted electric car,
Nor is the defendant absolved from its negligent act in carrying plaintiff beyond his destination and putting him off in the dark by the mere fact that he was not hurt in alighting, or did not immediately fall into a culvert or ditch. The rule is by no means so restricted. As was said in Atkinson v. Railroad, 90 Mo. App. 1. c. 497: “Had the physical condition of the locality where he alighted been unsafe and dangerous by reason of ditches, embankments, bridges, cattle-guards or like things, and the plaintiff had been injured by reason thereof in making his way to the station, the defendant' would have been liable under the authorities, fox the law presumes that the defendant’s agents are familiar with the immediate physical surroundings of its tracks. The injury would have been within the reasonable expectation of the wrongful act of putting him off of the train at an unsafe place.” [Rigby v. Hewett, 5 Excheq. 243; Rearden v. Railroad, 215 Mo. 105.]
The second point has even less merit. The defendant was distinctly notified that plaintiff desired to get off at Clara Avenue Station when the conductor received his fare, and when plaintiff thought he was nearing that station he went out on the rear platform. There was no light at the station and he did not see it. He had never been west of that station on this line and consequently was necessarily unacquainted with the surroundings. The conductor, by inquiring if he wanted to get off at Clara avenue and receiving an affirmative reply and then stopping the car, plainly intended to direct the plaintiff to alight where he did and plaintiff in the absence of any and all directions how to reach the passway to Cabanne avenue or to
II.
Error is predicated on the admission of evidence on the part of the plaintiff to the effect, that one of his knees had been injured by the fall and had become stiff. The contention is that the petition was not specific enough to justify this testimony.
The allegation as to the injuries was as follows:
“Plaintiff fell off of the end of said platform down a distance of about eighteen feet to the ground and into said ditch, sewer ox culvert and was greatly and permanently injured, sustaining a double fracture of the right thigh bone between the knee and hip; three of his front teeth were driven inwardly, his face and hands cut and he sustained other cuts and wounds, and by reason of said injuries he was obliged to lie constantly on his back in bed for more than thirteen weeks continuously and was confined to a hospital for more than four months.”
Among other witnesses, Dr. Warren B. Outten testified on behalf of plaintiff. He was and is a surgeon of great experience. He took charge of plaintiff at the Baptist Hospital the night he was hurt. He found upon examination that plaintiff was suffering from a fracture of the thigh and a contused and lacerated wound on the right side of the knee. After detailing the character of splint used for the purpose of extension to prevent any shortening of the leg and the length of time plaintiff was kept in the hospital, some twenty weeks, he stated they put the limb in plas
By section 655, Revised Statutes 1899, it is provided: “No variance between the allegation in the plead
In Fisher Co. v. Realty Co., 159 Mo. 567, it is said:
‘ ‘ That a party cannot declare upon one cause of action and recover upon another, is axiomatic in our law. But it is also equally well settled in our State that timely and appropriate objection must be made to the introduction of the evidence offered on the distinct ground' of a variance between the allegata and probata, and that the objecting party must proceed in the manner provided by section 2096, Revised Statutes 1889, otherwise his objection will not be considered. [Briggs v. Munchon, 56 Mo. 467; Ely v. Porter, 58 Mo. 158.] And the affidavit setting forth in what respect a party has been misled is the sole test of the materiality of a discrepancy between the allegata and probata. [Turner v. Railroad, 51 Mo. 501; Meyer v. Chambers, 68 Mo. 626; Olmstead v. Smith, 87 Mo. 602.] If a party fails to avail himself of section 2096, supra, in the trial court, it is too late to complain in the appellate court. ’ ’
The defendant in this case pursued no such course, but independently of this statutory provision for saving the point as to a variance we think that the allegations of the petition were broad enough to cover the proof as to the stiff knee. Dr. Outten’s testimony shows that that was the result of a fracture of the thigh bone and was a natural result. In Brown v. Railroad, 99 Mo. 317 to 319, inclusive, Judge Black speaking for this court pointed out that general damages are such as the law implies or presumes to have occurred from the wrong complained of, and they need not be pleaded. In such cases, the wrong itself fixes the right of
III.
Complaint is made that the court refused the following instruction asked by the defendant:
“The court instructs the jury that if they believe from the evidence in this case that plaintiff knew he had been carried past Clara avenue at the time he alig'hted from the car in question, then it was his duty to walk back to Clara avenue, and the jury will find for the defendant.”
The court had already submitted to the jury in its first instruction the question as to plaintiff’s knowledge at the time he alighted from the car, that he had been carried past Clara Avenue Station, and there was no error in refusing this instruction.
The court also refused another instruction requested by the defendant as follows:
*114 ‘ ‘ The jury are instructed that -if plaintiff might have safely passed over defendant’s tracks from the point where he alighted to Goodfellow avenue, or might have returned in safety to so-called Clara avenue, hut instead thereof negligently elected to take his chances in the darkness and was hurt in consequence, he cannot recover in this action.”
There was no testimony in the case that defendant’s tracks were safe for a stranger to walk on in the nighttime. This instruction assumes the law to he that it was the duty of the plaintiff, let off, as he was, in the dark, between stations, to walk along the defendant’s right of way to the next station. It is absolutely certain that the plaintiff had never been past the Clara Avenue Station and knew nothing about whether the track was safe or not in that direction and having just left an electric lighted car and stepped out in the darkness his vision would naturally not be very good, and there was no light burning at Clara Avenue Station to guide him in the darkness in that direction. We think there was no error whatever in refusing this instruction, as the court in its first instruction properly laid down plaintiff’s obligation in the premises when it told the jury that if they believed from the evidence that plaintiff, in ignorance of the fact that he had been carried beyond Clara Avenue Station, upon the said car being stopped alighted from the same, and in the exercise of ordinary care for his own safety proceeded to go to his own destination and in so doing fell from the platform over defendant’s tracks, which was near the place where plaintiff alighted, and into a ditch or sewer on defendant’s right of way and was thereby injured, then they would find for the plaintiff.
The case seems to have been carefully and well tried and there is no question whatever but that the plaintiff suffered a very painful and serious injury, and there is no suggestion that the damages awarded him are excessive. Judgment is affirmed.