143 Mo. App. 653 | Mo. Ct. App. | 1910
This suit was instituted in the circuit court of Howell county, on the 28th day of August, 1909. In the plaintiff’s petition she alleges that she
The answer was a general denial, with the plea of contributory negligence.
The testimony shows that the plaintiff resided at Kansas City, Missouri, and that she went to West Plains to visit a married daughter. The defendant was engaged in running a transfer line in said city. The driver of the defendant in charge of the cab, left the team unhitched and no person had the lines. Just after the plaintiff entered the cab, the team took fright at the noise of steam escaping from a locomotive Standing at the depot, and started to run with the cab and the plaintiff in it. The testimony does not show whether the injury to plaintiff was caused by being thrown from her seat to the floor of the cab, or while trying to get out of the cab during the time the team was running away. There were no objections offered by the defendant to the testimony of the plaintiff that she attempted to get out of the cab while the team -was running, and that her injury might have been caused thereby.
The cause was tried before a jury, resulting in a verdict in favor of the defendant, and the plaintiff has appealed to this court.
The evidence in behalf of the plaintiff was sufficient to take her case to the jury, and the only error complained of is the action of the court in giving an instruction in behalf of defendant, and refusing one asked by the plaintiff. The instruction given reads: “That even should you find by the greater weight of the evidence that plaintiff was injured while the team was
The action of the court in giving the instruction complained of was based upon the idea that in as much as the petition did not allege that plaintiff received her injuries while attempting to get out of the cab, or as she was getting out of the cab, she was not- entitled to recover if the injuries were so received.
Section 656, Revised Statutes 1899, reads: “When the variance between the allegation in the pleading and the proof is not material, the court may direct the facts to be found according to the evidence, or may order an immediate amendment without costs.”
In Edge v. Electric Railway Co., 206 Mo. 471, 104 S. W. 90, the petition alleged that the plaintiff received his injuries by reason of a collision between two street cars. An amendment was offered to the effect that plaintiff received his injuries by jumping when he saw a collision was imminent. The court said: “Manifestly the amendment merely cured an immaterial variance. The gist of the cause of action alleged under both petitions was the negligence of the company giving conflicting orders; and whether the respondent was injured in the collision or by escaping from it is a matter of trivial importance.”
The testimony was admitted without objection, and, therefore, the defendant waived the proposition submitted in the instruction. [Hensler v. Stix, 113 Mo. App. 162, 88 S. W. 108; Litton v. The Railroad, 111 Mo. App. 140, 85 S. W. 978; Fisher & Co. Real Estate Co. v. Staed Realty Co., 159 Mo. 562, 62 S. W. 443.]
The respondent relies upon a class of cases holding that if a pleader alleges specific acts of negligence as
For the reasons foregoing, the judgment must be reversed and the cause remanded.