Landers v. Quincy, Omaha & Kansas City Railroad, 114 Mo. App. 655

114 Mo. App. 655 | Mo. Ct. App. | 1905

BROADDUS, P. J.

While plaintiff and other employees of defendant engaged in repairing its tracks were riding on one of its said tracks in a handcar near Coffeysburg in Daviess county, at the rate of from five to eight miles per hour, said handcar became derailed and plaintiff received severe injuries. The plaintiff’s case was set out in two counts in his petition. The first count in substance alleges negligence on the part of defendant in furnishing for plaintiff’s use an old, worn, dilapidated, and out of repair handcar, wholly unsuitable and unfit for the purposes for which it was provided, and by reason thereof the same became derailed, causing plaintiff’s injuries.

The second count alleges that by reason of the defective condition of said car, its unnecessary shaking and wabbling, one of certain lining bars carried upon said car was shaken therefrom, the end thereof catching under the end of a tie, the other striking the wheel on the other end of the car, thus derailing the same. That said lining bars and other tools were negligently and carelessly placed upon said car, and that the carrying of said lining bars in the loose and unfastened manner was the cause of one of them falling in front of said car, thereby causing its derailment, which resulted in injuring plaintiff.

At the close of plaintiff’s evidence, the defendant moved the court to compel plaintiff to elect on which count he would proceed. The plaintiff insisted that he was not compelled to so elect. And the court said: “Motion overruled at this time.”

At the close of all the evidence plaintiff was permitted to amend the second count of his petition by inserting the word “aforesaid,” which had been omitted, and inserting the following: “And by reason of the unsafe condition of said handcar, the jostling and wabbling thereof.” Defendant objected to said amendment and insists that it was error to permit the same at that stage of the proceedings. But as there was no affidavit of surprise as required by the statute, and as the evidence justified the amendment, we do not think the court committed any error in that respect.

The plaintiff then on his own motion elected to stand on the second count of his petition.

We gather from the record that it was the opinion of the court and both parties to the suit that plaintiff was required, under the law, to make an election between the two counts of his petition. However, that was a mistake, as the allegations of the first count are entirely consistent with those of the second. “A plaintiff may plead a single cause of action in as many different counts as he chooses,, to meet any possible state of the proofs, and this will not make his counts repugnant.” [Rinard v. Railroad, 164 Mo. 270; Shuler v. Railroad, 87 Mo. App. 618.]

The plaintiff’s third instruction related not only to the second count of his petition, but also to the allegations in the dismissed count. Plaintiff claims that when he dismissed his first count he was acting under the impression that the allegations therein were also contained in the second count. And this we take to be true as it is not reasonable to suppose that plaintiff would invite reversible error. He therefore asks leave to amend his petition so as to restore the allegations of the first count, and for an affirmance of the cause. Had plaintiff been compelled to elect as between his two counts, the court would have the power to restore the one abandoned, as it is our province to correct errors of the trial court. But we are not asked to correct an error of the court but, on the contrary, to relieve the plaintiff from the consequences of his own mistake. Such a course would be setting a dangerous precedent. It would tend to breed looseness, confusion, and uncertainty in practice. However, the court need not reverse the case unless the error materially affected the merits.

The preponderance of the evidence was to the effect that the handcar was in a bad condition. One witness testified that the wheels were loose, and that they had too much play back and forth and sideways. Another said it was in bad condition; that the boxing was loose, had a good inch play; and some of the taps were gone, and that some of the cogs were worn and that some were loose. Some of the witnesses testified that the car was bad in every way except as to the platform, and that its condition caused it to wabble while running. Defendant’s evidence was to the effect that the handcar was in a reasonably safe condition. At the time in question, the handcar had been loaded with the tools of the working men, among which was a line bar, which was a heavy bar of iron, four feet and six inches long. The tools and the bar were placed lengthwise on the platform with the handle or light end of the bar forward. One end of the bar was much heavier than the other. There had been a rain and the top of the platform of the handcar was wet. While the car was going down grade, it left the rails and threw the workmen, including plaintiff, to the ground. It was shown that just at or just prior to the derailing of the car, the line bar went off in front. The small end was found imbedded in the earth under a tie, and there was a fresh indentation on one of the front wheels indicating that the heavy end of the bar had struck that wheel. The bar was bent into the shape of an angle. The inference is almost conclusive that the bar falling in front of the car was the cause of its derailment.

It is contended by tbe appellant that the inference is also conclusive that the bar was not jostled off the car by reason of its wabbling movement, but because it was shoved off by the foot of some of the workmen; and one of the witnesses testified that he thought it occurred in that manner. In other words, that, in order for the small end of the bar four feet and a half long to have struck the earth that distance ahead of the moving car, it would have been necessary for it to have been projected with great force, such as it could not have had, if it had been merely shaken off. There is no evidence that any one on the car shoved the bar off with his foot. It was shown that the bars at times do slide off the platform while a handcar is going down grade, and that it required attention to prevent them from so sliding. The foreman of the workmen testified that the bar shot quickly by him when it went off. That may be true and still the impetus of its movement may have been caused by the shaking and jostling of the car. It might have moved slowly or rapidly; its speed would be measured by the extent of the force that set it in motion, and the friction it would have to overcome upon the surface of the platform. If the surface was dry and rough, the speed would be less, if smooth, greater. The density of the iron and the character of its surface would also have to be considered. We are not satisfied with the conclusiveness of defendant’s inference.

As the evidence does not indicate that the car would have left the track in any manner other than that caused by the falling of the bar, notwithstanding its unsafe condition, we are of the opinion that the instruction not only went outside of the issues raised on the second count, but also outside of the evidence. It, therefore, was materia 1 error affecting the merits of the case. All other questions as to the admission of evidence and other matters raised by defendant are held to be unimportant and without merit. Cause reversed and remanded.

All concur.