93 Mo. 445 | Mo. | 1887
Plaintiff recovered a judgment against the defendant for ten thousand dollars damages for personal injuries. The grounds of the defendant’s complaint are: (1) The refusal of the court to sustain a demurrer to the plaintiff’s evidence; (2) the giving of plaintiff’s first instruction ; (3) excessive damages.
Twelve or fifteen years ago the defendant constructed a plank walk from its depot at Pleasant Hill, to the Planters’ House, at that place. The walk was then intended to accommodate passengers in going to and from the dining-room at the hotel. It has, at all times since, been used by the public in going to and
The evidence shows that these cars were in the position before described during the day, and that various persons had passed between them on the walk. About seven or eight o’clock in the evening, plaintiff started from the Planters’ House to the depot,'intending to post a letter on the mail train. He says when he got to the crossing, he stopped and looked both' ways, but could see no engine or moving train. The instant he stepped between the cars those to the north suddenly moved to the south and caught him as the cars came together. He received injuries to his leg which are serious and permanent. He states that when he approached the cars
From the foregoing statement of this case, it will be seen that the negligence charged in the petition is, that defendant’s servants and agents negligently drove and forced one or more loose cars against the stationary cars, whereby the stationary cars were driven on and against plaintiff. There is not a particle of proof of this alleged act of negligence. It is shown affirmatively by the plaintiff’s evidence that therejjwas no engine or moving train on the track at the time of the accident. It does not appear that any agent or servant was near or about the cars when they commenced to move eastward ; when plaintiff approached the crossing, all of the cars on the track were standing just as they had been for a
But it is said it was negligence for the defendant to leave the cars standing on the track without securing them, so as to prevent them from coming in contact. The decisive answer to that is, that negligence in this respect is not - charged in the petition. It is not stated that the cars were left standing without the brakes being down, so that they were liable to move on the down grade by force of gravity. The defendant had a right to store or stand its cars on the side track, and no negligence is alleged as to the mode or manner in which they were left or placed on the track. The plaintiff cannot declare upon one cause of action, upon one negligent act, and recover upon another and an entirely different act of negligence. To permit this to be done is to disregard all rules of pleading. Capital Bank v. Armstrong, 62 Mo. 59; Buffington v. Railroad, 64 Mo. 246; Price v. Railroad, 72 Mo. 414; Ely v. Railroad, 77 Mo. 34.
From the general and indefinite instructions, which were given, it would seem that the case was tried by the plaintiff and court on the theory that it was sufficient and good pleading to state generally, that plaintiff was injured by the carelessness and negligence of the defendant’s agents and servants. It is clear that the pleader never thought of resting his case on such allegations'; for while there is such a general allegation, still, by a part and parcel of it, reference is made to the subsequent specific acts of negligence. But a petition with such a general allegation only would be worthless, and a like instruction equally faulty. In cases like the present one, where the negligence is a mixed question of
So far as the instruction is concerned, it permits a recovery if the jury should find that-the plaintiff was, by reason of negligence of defendant’s employes, caught between the cars. Negligent in what respect % It does not say. Such a general and indefinite instruction would be bad on good pleadings. It is true the instruction requires the jury to find the existence of a great many things, but they are not required to find that there was any negligence on the part of defendant in respect of any of them.
With these results the question of excessive damages becomes immaterial. The judgment is reversed and the cause remanded.