113 Mo. App. 162 | Mo. Ct. App. | 1905
(after stating the facts). — 1. Persons who operate elevators for the use of the general public
2. The petition contains an averment that the operator started the car before plaintiff’s dress was released. That averment is said to be no statement of an independent act of negligence or separate cause of action, because it is not charged that the elevator was •started negligently. Neither the word “negligently” nor any of similar import is used as descriptive of the •act of starting. Nevertheless, a cause of action might be founded on the starting of the elevator when the op•erator knew, or, by using due care, could have known, plaintiff’s dress was caught in the door. The operator : stood right by the door and had a good chance to observe that her dress was caught. It was his duty to use great ■care to have the passengers in safe positions before he moved the elevator. But the instructions authorized no verdict for the plaintiff on a finding that the elevator was carelessly started from ‘the landing; therefore, any fault in the allegation about starting is immaterial. If the negligence in that regard is to be relied on as a separate ground of recovery, the averment about it should ;be completed by the addition of the fact that the op
3. Plaintiff’s pleading does not fit the facts disclosed by the evidence in all respects. The negligent acts mentioned in the petition as the cause of the casualty are, first; closing the door on plaintiff’s dress so-that it became entangled in the wheels of the elevator; second, carelessly leaving the wheels exposed, and, third, starting while plaintiff’s dress was fastened. The petition avers that by those acts plaintiff was thrown against the top and side of the elevator and injured.' Plaintiff was not injured in that way; but, as all the evidence shows, by her leg getting caught between the floor of the elevator and the edge of the ceiling of one of the stories of the building. Neither did exposed wheels have anything to do with, thé casualty; nor was there any proof that the wheels of the machinery were exposed.
Counsel for defendants insist the accident was due proximately to reversing the elevator, thereby causing it to ascend again; and not to its descent, or exposed wheels, or closing the door on plaintiff’s dress; further; that the petition says nothing about ’the reversal of the movement of the elevator and, therefore, plaintiff could not recover on her pleading, which specified only acts of negligence that in no way contributed to the accident. The conclusion is deduced that the court should have directed a verdict for the defendants. When analyzed the above argument is found to resolve itself into the proposition that there was a variance between the petition and the proof, though the point is not presented in that form. All the evidence regarding the accident went in without objection and the question of' variance was never raised during the trial in the way provided by the statutes. [R. S. 1899, -sec. 655.] The theory of defendants’ counsel is that the court had no right to instruct for a verdict for the plaintiff on a finding of the jury that the downward movement of the
4. Granting there was evidence that starting the elevator upward was the proximate cause of the accident, an inquiry arises as to whether the court properly submitted it as a ground for a verdict for' the plaintiff when there was no allegation in the petition regarding the fact, but evidence about it had been received without objection. We discussed this question recently and held the statutes prescribed several lines of procedure in such a contingency, and that which line ought to be followed in a given case depends on the extent of the variance presented between the pleading and the proof. [Litton v. R. R., 111 Mo. App. 140, 85 S. W. Rep. 978.] The provisions of the code on this subject are clear and ample. If there is a total failure to sustain an allegation stating a distinct and independent ground of recovery, as where the fact proved negatives the one alleged, a failure of proof occurs instead of a variance, and the plaintiff’s case, in so far as it rests on the unproved allegation, must fail. [R. S. 1899, sec. 798.] A party cannot sue on one cause of action and recover on another. [Chitty v. R. R., 148 Mo. 64, 75, 49 S. W. 868.] If a variance occurs it may be either material or
5. Our main difficulty has been to decide whether there was any room for the inference that changing the direction of the elevator caused the injury. No doubt ■plaintiff would not have been hurt in the manner she was if the course of the machine had not been changed. But that is a very different proposition from saying that ■changing the course was, legally speaking, the proximate cause. If the car had been simply stopped at the point Avhere it was turned upAvard, the mischief would have been averted. The operator swore it was impossible for him to stop it there without reversing the power— that is, throwing the lever back as far as it would go. No •expert opinion on the subject Avas introduced; and 'though the evidence is very impressive that nothing
6. Though defendants’ counsel insist the reversal of the elevator was the proximate cause of the accident, they by no means concede that this action was a negligent one. Their position seems to be that, whether negligent or not, it was the sole cause of the injury and plaintiff could not go behind it for a ground of recovery. In our judgment this position involves a misconception of what is meant in the law of negligence by the proximate cause of an accident. The expression “proximate cause” frequently signifies, not that act in a chain of causation nearest to the injury complained of, but the culpable act nearest to the injury. [Wharton, Negligence, sec. 88, 138; Shearman & Redfield, Negligence (5 Ed.), sec. 36; Emporia v. Schmilding, 33 Kan. 485; Chacey v. Fargo, 5 N. D. 173; Pastene v. Adams, 49 Cal. 87; Scott v. Shepard, 2 W. Blacks. 892; s. c., 3 Wils. 403.] When a person’s conduct is negligent and brings another person into a position where damage is the natural outcome, the introduction of a non-culpable act between the original negligence and its mischievous result, will not prevent the original negligence from being treated as the proximate cause of the mischief, if it contributed to produce it, even though the intervening-act was the immediate cause. This principle is illustrated by the cases we have cited. The incidents in one or more of them were the culpable acts of a municipality in letting a board in a sidewalk be loose, whereby injury resulted to a pedestrian by his companion stepping on one end of the board and causing it to rise. Stepping on the end of the board was the immediate, but not the proximate, cause of the accident. Now, in the present case it is palpable that someone, by catching plaintiff’s dress in the door, or starting the elevator
7. Plaintiff herself could have been to blame for her injury in one particular only — that is, in not exercising ordinary care to keep her dress from catching in the door. Even if she was to blame for that circumstance, it was the duty of the operator to use care to see that she and the other passengers were safely placed before he started the elevator; and the defendants are responsible if he was remiss in the performance of that duty. Our conclusion regarding the possible causes of the accident is that the plaintif alone may have caused it by catching her dress; that the operator may have caused it either by closing the door on plaintiff’s dress or starting the elevator when he knew, or ought to have known, her dress was caught; and that possibly he caused it by handling the elevator carelessly after discovering plaintiff’s danger. As indicated above, we think the latter a weak theory; for though absolutely perfect management of the elevator might have averted the accident, it was hardly possible to manage it. perfectly in the excitement and urgency of the moment.
8. The seventh instruction given for the plaintiff correctly says that by the term “contributory negligence” is meant, in this case, “any negligence on the part of the plaintiff directly contributing to her injury.” Immediately after that definition, the instruction declares that- “such negligence on her part” (that is to say, negligence on her part which directly contributed to the injury) “will not bar her right to recover, if defendants’ agent or servant, after discovering the danger in which plaintiff was placed by her negligence, might have, by the exercise of ordinary care, prevented the injury to plaintiff.” Taken as a whole that instruction was apt to impart an erroneous opinion about the effect on plaintiff’s right to a verdict of a finding that she had been guilty of contributory negligence. It was misleading. • The last'clause was erroneous in requiring no more of the operator than ordinary care to save plaintiff after he discovered her peril. He was bound to fise high care. Besides, in the circumstances shown, he might have been remiss, so as to lay his employers liable, by not discovering plaintiff’s peril. As she could have put herself in peril in no way except by catching her dress, the instruction on this branch of the case will instruct the jury best by telling them that although they find plaintiff herself was to blame for her dress catching
9. The first instruction given for the plaintiff held the defendants responsible if plaintiff’s injury was caused by any failure on their part to exercise care and precaution in managing the elevator — an erroneous view. Not any failure of duty by the defendants, but only such as there was proof of, should have been submitted to the jury as ground for a verdict in plaintiff’s favor. Different acts of negligence were alleged in the petition and some of these were supported by evidence. Plaintiff’s right to recover depends on satisfying the jury that defendants were guilty of one or more of those acts. [Allen v. Transit Co., 81 S. W. 1142; Lesser v. R. R., 85 Mo. App. 326.]
10. Error is assigned because of the exclusion of the letter defendants wrote plaintiff while she was in the hospital. . The defendants received no1 reply to the. letter in question and did not seek one or pursue the
The judgment is reversed and the cause remanded..