186 Mo. 258 | Mo. | 1905
— Plaintiff sues to recover the penalty prescribed by the statute, section 2864, Revised Statutes 1899, for the death of his minor son caused by being run over by a street car of defendant. The petition is in four counts: in the first it is stated that the boy was on the car and was forcibly ejected therefrom by the negligent act of the motorman; the second, that the boy was on the car and was ejected therefrom by the motorman striking him unlawfully, willfully and with criminal intent; the third, that the boy was on the public street, and that the motorman negligently ran the car against him and over hiña; the fourth, that the boy was run over because the motorman failed to observe the requirements of the “vigilant
Before the beginning of the trial defendant moved the court to require the plaintiff to elect upon which count he would go to trial, because they were inconsistent. The motion was overruled and defendant excepted.
I. The motion to elect should have been sustained. A plaintiff may state his cause of action in different forms in separate counts to meet any phase of the case which it is anticipated the evidence might show, but in doing so he must not in one count make statements which are so inconsistent with his statements in another count as that the proof of the case as stated in one count disproves that as stated in the other. Repugnancy is as bad in a petition as it is in an answer. [Roberts v. Railroad, 43 Mo. App. 287; Enterprise Soap Works v. Sayers, 51 Mo. App. 310; Brownell v. Railroad, 47 Mo. 243; Brady v. Connelly, 52 Mo. 19; St. Louis to use v. Allen, 53 Mo. 49; Owens v. Railroad, 58 Mo. 386, l. c. 394; Rinard v. Railroad, 164 Mo. 270, l. c. 284.] The statements in the first and second counts of the petition are so inconsistent with those of the third and fourth counts that if those in the first two are true those in the last two must be untrue.
If the accident occurred in consequence of the motorman striking the boy on the hand with a blunt instrument thereby breaking his handhold and causing hixtt to fall off the running board on which he was riding, as stated in the first and second counts, then it did not occur by running the car against him and over him while he was on the street or by the failure of the motorman to keep a vigilant watch for him as he approached the car, as stated in the third and fourth counts. Section 626, Revised Statutes 1899, authorizes a party to plead alternatively, but these contrarieties are
II. The verdict and judgment were for the plaintiff on the first count for $5,000, and that is the judgment from which defendant has prosecuted this appeal.
The first assignment of error is that the first count does not state facts sufficient to constitute a cause of action, in that it fails to state that the act of the motorman, which it is alleged caused the injury, was within the scope of his employment. This point was made at the trial in the form of an objection to any evidence under this count for that reason; the objection was overruled and exception taken.
The averments of the first count are that the plaintiff’s son was standing on the running board of the moving car holding with his hands to a bar running lengthwise along the side of the car, when the “motorman and driver” in charge of the car, “to further the business of the defendant as his employer,” ejected the hoy from the car by striking him upon the hand and arm with a blunt instrument, thereby causing him to lose his hold and to he thrown and fall from the car and he run over and killed. The words above quoted, “to further the business of the defendant as his employer, ’ ’ are the only words in the petition which it is claimed charge that the act alleged to have been •done by the servant was within the scope of his employment.
- If the pleader when he wrote those words was in-fending to make a positive declaration that the act was within the scope of the servant’s employment, he could have found other words that would have expressed the idea with more certainty. But we have frequently said that where objection is not made to a petition until the trial is about to begin, if the petition is ¡susceptible of a construction that will constitute it a
In answer to this position the counsel for respondent in his brief says: “Here in this record we find the offending motorman in this case actually on the car at his place of duty, actually controlling the movement of the car, holding, as appellant urges in his brief, the relation of driver, for he urges that he holds the same relation to the street car that an engine driver holds-to the engine and train. He has control of the brakes and stopping appliances of the car, much the same as the engine driver of the engine. The car moves by his-acts; the car stops by his act. He receives passengers; he discharges passengers; that is, he does the essential acts connected with this vital part of the business of the operation of the car. This appears in the record in connection with the duties of the motorman.”
Those facts do appear in the record or are inferable from what does appear. So far as the receiving, carrying and discharging of passengers is controlled by the running, stopping and starting of the car, the business is in the care of the motorman; but if the motorman has any authority over the passenger, other than that which necessarily arises out of his control of the-movement of the ear, there is no evidence of it in this-record, and therefore our only information on the subject must be derived from common experience with a, public contrivance in almost universal use. Drawing on. this common experience the counsel for respondent says that the motorman stops the car to receive and to-discharge a passenger, he stops at signals of persons on the street desiring to become passengers, and in
A street car, unlike an express train on a steam railroad, is designed to stop at every street crossing if there is a passenger to be received or discharged there; the motorman takes the signal from the man on the street and stops to allow him to board the car. But steam railroads also have stations at which the train stops on signal, and at such a station the signal is given to the man driving the engine and he stops his train to receive the passenger. When a stop is to be made to allow a passenger to leave the car or train, the passenger does not signal the motorman or the engine driver, but he makes his wish known by signal or otherwise to the conductor and the conductor gives the signal to stop. The duties of the man in the cab of the locomotive engine, and the man on the front platform of the street car with the electric controller in his hand, although varying to suit the respective conditions, are in many respects of quite similar nature and, therefore, the illustration suggested in the brief of counsel for appellant of an engine driver undertaking with violence to eject a passenger, or a trespasser for that matter, from the train, is worthy of consideration. In the case of a passenger whom the engine driver might assault, or forcibly eject from the train, the carrier would be liable, but on a different principle from that we are now considering; he would be liable because the passenger is in his care as carrier and is entitled to his protection even from strangers; but the liability of the carrier in that case is that of a carrier, not that of a master responding for the act of his servant committed in the line of his duty. In the case at bar it is not alleged, and it is not claimed, that the plaintiff’s son was a passenger; the ground on which the defendant is sought to be held is that this alleged wrong was done by the defendant’s servant in the line of his duty to his master. In such case the burden is on the plaintiff
This case falls within the rules of law laid down by this court in Farber v. Railway, 116 Mo. 81, wherein it was held that the railroad company was not liable for the act of a brakeman who caused the alleged injury to the plaintiff by forcing him off a moving freight train, on which he was a trespasser, in the absence of evidence showing that the act was within the scope of the brakeman’s employment.
Respondent quotes the language of the statute, section 2864, Revised Statutes 1899, under which the suit
Thq petition was drawn with that “driver” idea in mind; it declares that the “defendant’s motorman and driver in charge of said ear and whilst acting as such motorman, and undertaking to further the business of his employer, ejected the plaintiff’s son from said car by striking him, ’ ’ etc. The learned counsel in his brief says: “The single requirement of this statute is that the servant whose negligence causes the injury should be in charge of the public conveyance (the car) as a •driver. We submit that this motorman performed the precise function of a driver of a car. He drove the car; he controlled its movements as a driver. Counsel for appellant likens his position on the car to an engine driver. He then was in charge of the car as a driver. ’ ’
When we call a motorman or a man who operates a locomotive engine a driver, we are conscious of using that word in a somewhat artificial sense. The term driver is not as commonly used in this country to designate one who operates a locomotive engine on a railroad as is the term engineer, although perhaps the former is nearer the original signification than the latter. But the word ‘ ‘ driver ’ ’ was not used in this statute in that sense. In the beginning of the sentence words more aptly describing an agent or servant operating an
This statute was enacted in this State in 1855, long before electricity was used as we now use it, and long-before there was in common service what we now call a motorman. But in those early days a stage driver was a personage as well known as an inn-keeper and his authority was known. When the public stage driver was on the road with his coach, there was no one present over him in authority, he was pro hac vice the corporation or stage coach company itself. His title was driver, but driving the horses was not his only duty; he was, as driver, in charge of the coach. This clause of the statute was aimed at him, and, to prevent a company from avoiding liability by running a vehicle that was not called a stage coach, the words “or other public conveyance,” were added, the meaning of the clause being, “or of any driver of any stage coach or other public conveyance [ejusclem generis] whilst in charge of the same as driver. ’ ’ The motorman does not come under that clause, because he is not in charge of the car, and he does not occupy towards the corporation and the public the position of the driver of a stage coach or other vehicles of that kind.
We are better satisfied to leave this case resting on the failure to show the motorman’s authority from his employer to do what he is accused of doing, since we have looked into the evidence and are convinced that there is no reasonable ground to believe that the motorman was guilty of the act charged. The overwhelming evidence shows that the boy was not on the car at all, but that he tried to cross the street so close in front of the car that it was impossible for the motorman to prevent striking him with car and running over him.
