Gurley v. Missouri Pacific Railway Co., 93 Mo. 445

93 Mo. 445 | Mo. | 1887

Black, J.

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 from the depot. Between, the Planters’ House and the depot, the walk crosses a side or house track, which is habitually used by the defendant for standing or storing cars. On the twenty-second of January, 1885, a number of cars were standing on this track, six or seven to the north, and others to the south of the crossing. They were detached at the walk so as to leave an open space of three or four feet for persons to pass through. The petition sets out the foregoing facts, and then states that, while attempting to use the crossing, and by reason of the negligence of the defendant’s servants, plaintiff was, “suddenly,.and in a manner hereinafter stated,” caught between said cars; “that, at the time he approached said crossing as aforesaid, he attempted to pass through the opening between the cars, stationed on either hand thereof as aforesaid; that, just as he entered said opening, defendant, by its agents, servants, and employes, unskilfully, negligently, and carelessly, and with great violence, drove and forced on or against the said stationary cars, on the northeasterly end of said side track, certain loose cars, or a loose car, whereby said stationary cars were driven on and against plaintiff, and he was crushed and mangled between them and the other of said stationary cars, and received the irreparable injuries aforesaid.”

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 they appeared to be still, that it was light, and that he saw no engine or moving'train, and that the racket when hurt seemed to come from the oar that hit him. The grade of the side track at and to the north of the crossing slopes southward. The evidence of the plaintiff’s son, and that of some employes of the defendant, who were called by the plaintiff, tends to show that there was no engine at or about the side track at that time or even that afternoon. The defendant asked no instructions, and offered no evidence, save that of one or two physicians as to the character of the injuries. ■ The plaintiff’s first instruction states hypothetically the foregoing facts in detail, which the evidence shows and tends to show, and concludes as follows : “ That, at the time plaintiff so attempted to pass between said cars on said crossing, he was, by reason of the carelessness and negligence of the defendant’s agents, servants, and employes, without any negligence or carelessness on his part contributing to the injury he received, caught between the cars so standing on said side track and so separated at said crossing, and that he thereby, and by reason thereof, received the injuries complained of in his petition, then the jury will find for the plaintiff.”

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 half, if not a whole day. No agent or servant touched or set them in motion. There was, therefore, a total failure to make any proof of the negligence charged in the petition, and it is not necessary to cite authorities to show that, as to this alleged cause of action, the demurrer to the evidence should have been sustained.

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 fact and law, where the j ary must determine whether the defendant was negligent or not in the light of the surrounding circumstances, the acts, which it is intended to be shown were negligently done, should be set out with a reasonable degree of particularity, and in some appropriate form of expression charged to have been negligently done. The defendant will then be notified of what he is charged. Issues can be made and submitted to the jury. Of course the statement of the matters of inducement, the surroundings and situation of the parties, need not be coupled with an allegation of negligence. We have recently held, where the method of pleading before indicated is pursued, the plaintiff may, under his petition, show that the defendant knew, or, by the exercise of ordinary care, would have known, that the machinery or appliances were defective and out of repair. Crane v. Railroad, 87 Mo. 591. The acts done or omitted must, however, be stated with a reasonable degree of particularity.

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.

All concur.