273 S.W. 1104 | Mo. Ct. App. | 1925
The answer was a general denial and a plea of contributory negligence. The evidence, which is very brief, indicates that plaintiff started for the toilet in the West end of the coach, the door to which was standing open, and that the coach door was open back over the entrance to the toilet and that he could not get in without pushing the coach door out; that he took hold of the coach door to push it out while the toilet door was swinging loose; that the train lunged around a curve and he grabbed the door jamb at the entrance to the toilet and the toilet *310 door slammed shut, catching his fingers, causing the injury.
Plaintiff was permitted to testify over defendant's objection, that there was no felt or anything of that kind on the inside of the toilet door; also that there was no air service on that door. This is assigned as error. We believe the assignment of error well taken. No such negligence is pleaded. Plaintiff's petition charges negligence in only two particulars, namely: That defendant's agents and employees negligently and carelessly handled the running of the train and negligently and carelessly allowed the toilet door to stand open. The rule is well settled that where plaintiff chooses in his petition to base his cause of action upon certain specific acts of negligence, as in this case, the law places the burden of proving such negligence upon him and he may recover only upon the specific acts of negligence pleaded. [Pate v. Dumbauld, 250 S.W. 52; McManamee v. Mo. Pac. Ry. Co.,
Plaintiff was also permitted to testify as to the rate of speed the train was going. The testimony was competent, but plaintiff failed to prove the speed at which the train was run was negligent and under the view we take of the case, the evidence becomes immaterial.
Defendant assigned as error the refusal of the trial court to sustain defendant's demurrer to the evidence at the close of plaintiff's case. Defendant offered no evidence. We believe this question should be disposed of, although the cause might be reversed and remanded on the admission of improper evidence heretofore set out. The liability of a railroad for injury to a passenger caused by the sudden closing of car doors on such passenger's fingers has been considered in several cases. In Madden v. Mo. Pacific Railway Company,
In Daniels v. St. Louis, I.M. S.R. Co., 181 S.W. 599, recovery was had for injuries sustained by reason of the car door suddenly shutting on a passenger's fingers. The door was fastened back, but the sudden checking in the speed of the train, which was the negligence charged, caused the door to become released from the catch used to hold it open and close on plaintiff's hand.
In Creason v. St. Louis, I.M. S.R. Co.,
In the case of Anderson v. Kansas City Railway Company,
In support of its demurrer appellant's counsel cites the case of Christensen v. Oregon Short Line R.R. Co., 35 Utah, 137, 99 P. 676. The facts in the Christensen case were somewhat similar to those in the Anderson case (supra). The latter case, in commenting on the Christensen case and another similar case uses this language: "In both cases there was no positive evidence that the door was pushed back where it would be securely fastened by the catch, if a good one. There was evidence in this case, already stated, that the defendant kept the door opened and caught back, all the time the car was in use. The conductor's station was in the vestibule. He stood practically at the door itself and it must have been under his eye practically all the time. It was held under the evidence in those cases that the inference of negligence, if any, arising from the closing of the door, was overcome as a matter of law by defendant's evidence. This is not the rule in this State. Under our decisions it is within the exclusive province of the jury to pass upon the credibility of the witnesses, and it may refuse to believe any witness or witnesses."
We do not believe, however, that any of the Missouri cases cited can be said to contain the same situation as developed in the case at bar. The doctrine of res ipsa *313 loquitur is not applicable, for the reason plaintiff's petition charges two specific acts of negligence and moreover, the proof leaves nothing for the application of that doctrine. The cause of the slamming of the toilet door was definitely settled. There was no catch or stop that might be considered out of repair. We have here the undisputed facts that the toilet door was open, and that the speed of the train, in rounding a curve, caused it to close on plaintiff's hand. No charge is made that it was defendant's duty to provide a check or air service on the toilet door. Can it be said that the simple fact a toilet door on a passenger coach happens to be left open is an act of negligence of the railroad company, where an able-bodied adult passenger is injured by the sudden closing thereof as in this case?
It has been held that a carrier is not guilty of negligence in simply leaving a car door open whereby injury results to a passenger, as it is a matter of common knowledge that car doors are used, not only by the servants of the carrier, but by passengers, and that doors may be left open without exposing passengers to unusual dangers. [Hardwick v. Georgia, R. B. Kg. Co., 11 S.E. 832; Weinschenk v. N.Y., N.H. H.R. Co., 76 N.E. 632; Brehm v. Atchison, T. S.F.R. Co., 206 P. 868, 25 A.L.R. 1056; Merton v. Michigan C.R. Co., 137 N.W. 767.]
The Madden case (supra), decided by the St. Louis Court of Appeals, seems to hold to the view that the fact that the outside car door was left swinging open could be made the basis of negligence on the part of the railroad, but that point was not directly before the court in that case, and if it were, we think there is a distinction between the outside door to a car and the toilet door. The toilet is placed there under a mandatory law for the benefit and convenience of passengers. It is used by them continually while the train is in motion, and as a matter of common knowledge, such toilets are not permitted to be used except when the train is moving. *314 If a railroad company is responsible for the door of a toilet being left open under such circumstances, then, as has been well said, it would require the presence of a man at each toilet door to see that passengers were not injured by the door being left ajar. This is manifestly absurd, and we do not think negligence can be predicated on such a hypothesis.
The judgment should be reversed. It is so ordered.
Cox, P.J., and Bradley, J., concur.