202 Mo. 418 | Mo. | 1907
Plaintiff's husband was struck and killed by4 a street car of defendant and she brings this suit to recover damages.
At the trial the evidence for the plaintiff tended to prove as follows:
Michael Jordan, the plaintiff’s husband, was in the service of the defendant corporation in the capacity of track repairer. Defendant was operating a double-track street railroad in Delmar avenue, which is a street running east and west. The space between the north rail of the south track and the south rail of the north track is five feet, eight or ten inches; the tracks
Thus far there was no material conflict in the testimony.
One of plaintiff’s witnesses said that she did not hear the ringing of a gong of either car and thought she would have heard it if it had been rung, but she viewed the accident from inside her store; asked if she heard the foreman say, “Look out, cars coming both ways,” she said she did not hear it as her door was shut. Her position was inside her store, behind the counter, and the door was shut. The only other eye-witness for plaintiff to the accident said he heard the gongs ringing on both cars as they approached the point of the accident. This witness estimated that at the time the foreman gave the warning to the men, “Look out,” the east-bound car was about forty feet distant, and the
On the part of the defendant the testimony tended to prove as follows:
As the west-bound car was approaching the place where the men were at work there was a wagon in the street going in the same direction, and the motorman, apprehensive that the wagon might get on the track, began ringing the gong as a warning to the driver and kept up the.ringing until he came nearly up to where the men were at work, and when he got within from six to ten feet of them Jordan and the other man jumped right across in front of the car, the other being a few feet further west escaped, but Jordan was struck and killed; as soon as the motorman saw the men jump towards the track he reversed his power and stopped the car within thirty feet. The car was running at the rate of six to eight miles an hour. At the moment of the accident the east-bound car was still 150 or 200 feet west of the point of collision.
At the time the foreman gave the warning, “Look out, boys, cars coming both ways, ’ ’ the west-bound car was 120 to 150 feet distant, and the car east-bound was 250 feet away.
The plaintiff in her petition states two causes of action, one under section 2864, the other under section 2865, Revised Statutes 1899. For the first she declares that the defendant’s servants in running the cars east and west at that point, negligently failed to sound the gongs to give warning of the approach of the cars, to slacken the speed, to keep the cars under control as they approached the place where her husband was at work, and to stop the cars in time to avoid the injury.
■ For her second cause of action she declares that the foreman representing the master was negligent in
These two causes of action were stated in one count. The defendant answered by general denial and a plea of contributory negligence.
There was a verdict for the plaintiff for $5,000, and judgment accordingly, from which the defendant appeals.
I. After the jury had been empaneled, the pleadings read and the plaintiff had called her first witness, the defendant made an oral motion to require the plaintiff to elect upon which of the two causes of action she would stand, which motion the court overruled and defendant excepted. That ruling is assigned as error.
In discussing this subject counsel in their briefs have cited several decisions of this court to support their respective views. On examining the cases cited we find that they relate to different subjects, or perhaps it would be more correct to say, different phases of this subject. There is a case in which are united in one count, as constituting one cause of action, several acts of negligence of the same general character, all of which might be true and either one of which, or all together, might have caused the injury, and another case in which are set forth in one count as constituting one cause of action two or more acts of negligence that are inconsistent and contradictory of each other, and another case where two or more causes of action are improperly united in one petition though stated in separate counts, and again a case where two or more causes of action that might properly be united in one petition are improperly blended in one count. What is said by the court in either of those cases is. said in reference to the facts of that case and is not applicable to the different facts in the other cases.
In an action sounding in damages for an injury caused by the negligence of defendant’s servants, the
Where "two causes of action of the kinds which the statute (sec. 593, R. S. 1899) does not authorize to be united in one petition are so united, though in separate counts, the defect is reached by demurrer. [Sec. 598, R. S. 1899.] But in Southworth Co. v. Lamb, 82 Mo. 242, in which there was an action ex contractu and one ex delicto improperly united in one petition, to which the defendant had filed answer and had gone to trial, the trial court, at the close of the plaintiff’s evidence, sustained a motion of defendant to require the plaintiff to elect on which of the two causes of action he would stand and that ruling was sustained by this court.
Where two causes of action that may by authority of the statute (sec. 593, R. S. 1899) be umted in one petition, each in a separate count, are improperly blended in one count the defect is reached by a motion to require the plaintiff to elect one and to strike out the other. [Otis v. Bank, 35 Mo. 128; State to use v. Davis, Id. 406; Christal v. Craig, 80 Mo. 367; State ex
The case at bar is a case of the kind last mentioned, that is, the plaintiff has blended in one count two causes of action which, if each had been stated in a separate count, she might properly have united in one petition, but defendant filed its answer pleading to the merits and therefore waived the irregularity of the plaintiff’s pleading. When the trial began defendant made an oral motion to require the plaintiff to elect, but the motion came too late and was properly overruled.
We have said that the petition contained two causes of action; that appears from the fact that each is created by a separate section of the statute, each founded on its own separate conditions and each calling for its own measure of damages.
In Brownell v. Railroad, 47 Mo. 239, the plaintiff sued to recover damages for the death of her husband and, like the plaintiff in the case at bar, she counted on both sections of the statute; the court said arguendo there was really but one cause of action though it was stated in two forms, in two counts. What the court meant by that language* was that there was really but one wrong for which the plaintiff was seeking redress, that was the death of her husband. Measured by the rules of pleading there were in that case, as in this, two causes of action, but as they were both founded on the same injuria there could be but one recovery, and in that sense there was but one cause of action.
The only thing the defendant waived, however, by
We hold that the court did not err in overruling the oral motion to elect, interposed, as it was, after the trial had begun.
ÍI. At the close of the plaintiff’s evidence the defendant asked an instruction looking to a nonsuit, which the court refused. That ruling is assigned as error.
The plaintiff does not now contend that there was any evidence tending to support her alleged cause of action under section 2864, founded on the alleged negligence of the motormen in charge of the cars, no1 instruction was given at her request authorizing a verdict in her favor on that issue, but she does claim that there was evidence tending to support the allegation of negligence on the part of the foreman in failing to give warning of the approach of the cars in due time.
The only witness for the plaintiff on that point said that when the foreman hallooed, “Look out, boys, cars coming both ways,” the east-bound car was forty feet west of the point of the accident, and the .westbound car one hundred feet. That is all there was in the evidence on which to found the charge of negligence on the part of the foreman.
The same witness said that the men were working on the south track, that when the foreman said, “Look out,” all the men except the plaintiff’s husband and one other stepped to the south side of the south track out of the way of the east-coming ear, but that when the plaintiff’s husband attempted to get out of the way he went north and stepped bn the north track within five or six feet of the west-bound car; the other man who
But it is probable the plaintiff’s witnesses were mistaken on that point; the woman was not in a very good position to see what occurred, and the man was by no means clear in his statements.
In passing on an instruction in the nature of a demurrer to the evidence, ordinarily the plaintiff’s evidence alone should be considered, but if the defendant’s evidence aids the plaintiff’s case it also is to be taken into account. In one respect at least the defendant’s
The only point in reference to which there was any material conflict between the testimony for the plaintiff and that for defendant was the distance of the east-bound car when the foreman gave the warning; for the plaintiff there was the testimony of only one witness who undertook to state the distance and he gave it as 40' feet, the defendant’s witnesses estimated it at 200 to 250 feet. If that car was only' forty feet distant when the foreman gave the warning then there was a question of fact for the jury as to whether the warning was given in due time, but that is all there was in the case that authorized a submission of it to the jury.
III. The petition, as we have already observed, stated a cause of action founded on the alleged negli
But during the introduction of evidence the plain- . tiff in. the examination of her own witnesses and. the cross-examination of defendant’s witnesses tried to show that the motormen were negligent, and did succeed in so far that one of her witnesses did testify that she heard no gong and thought she would have heard it if one had sounded. The defendant asked an instruction number 6 to the effect that if the jury should find certain facts, which showed that the defendant’s servants in running the ears were not negligent, the verdict should be for the defendant. The court refused the instruction as asked, but modified it so as to make it say that if the jury should find those facts they should find for the defendant on that issue, and gave it in that form. Defendant complains of that action of the court, and we think justly so.
The theory of the defendant’s refused instruction was that if the motormen were not negligent the verdict should be for the defendant. Whether that instruction was correct or not defendant was responsible for it only in the form in which it was asked; asking it in that.form was not equivalent to asking the court to submit the question of negligence of the motorman to the jury unless with the consequence stated in the instruction as requested. When modified it became the court’s instruction for which defendant was not responsible. The instruction as modified and given submitted the question of negligence of the motormen to the jury when there was no evidence to support it. True the modified instruction directed a verdict for defendant on that issue on the finding of cer
If the court had' given no instruction on that issue at all, the defendant, not having asked an instruction eliminating it from the case, would have no right to complain, but when the court undertook to instruct on the issue it was error not to have eliminated it entirely.
For the error in giving the instruction so modified the judgment is reversed and the cause remanded for trial de novo.