169 Mo. App. 284 | Mo. Ct. App. | 1912
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
•Defendant owns and operates a line of street rail.way in the city of St. Louis, and plaintiff was a passenger on one of its cars at the time of his injury. The place of the injury was at the crossing of defendant’s street car line with the Oak Plill tracks of the Iron Mountain Eailway. The street car on which plaintiff was a passenger collided with an Iron Mountain Eail
The petition lays a general charge of negligence against defendant’s servants in operating the street car in such a manner as to occasion the collision. Under this general charge against all of defendant’s servants in operating the car, evidence was introduced tending to prove that the motorman ran the street car upon the Iron Mountain Railway tracks in the very face of obvious danger, notwithstanding the gates were down and the watchman at- the' crossing waved his arms and hallooed a warning thereabout.
At the instance of plaintiff, the court instructed the jury as follows:
“If the jury find from the evidence in this case that on the 11th day of September, 1909, the defendant was operating the street car mentioned in the evidence as a carrier of passengers for hire; and if the jury find from the evidence that on said day the plaintiff was a passenger on said car bound west at the places mentioned in the evidence; and if the jury believe from the evidence that whilst the plaintiff was such passenger on said car, at the crossing of the steam railroad tracks mentioned in the evidence, defendant’s servants in charge of said car negligently caused or suffered said car to be collided with by the engine mentioned in the evidence, and that thereby the plaintiff sustained injuries mentioned in the evidence ; then the plaintiff is entitled to recover and the verdict should be for the plaintiff.”
It is to be noted that this instruction submits the question of defendant’s negligence in most general terms and authorizes a recovery for plaintiff if “defendant’s servants in charge of the car negligently caused or suffered said car to be collided with by the engine mentioned.” In other words, the instruction in no manner requires the jury to find the particular facts affording a conclusion of negligence, and because
Defendant introduced no evidence whatever tending to rebut the presumption of negligence, or tending to show that it had acquitted its obligation with due care. The only witness introduced by defendant was an X-ray expert, who had skiographed plaintiff’s injury and gave evidence tending to minimize it, with the sole view of diminishing the amount of the recovery. This being true, it would seem that though
Section 1850, R. S. 1909, provides: “The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be affected by reason of .such error or defect.” Furthermore the statute provides: “The Supreme Court or courts of appeals shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.” [See Sec. 2082, R. S. 1909.] Under these statutes it is the rule of
But it is argued that the petition charges what is known as specific negligence against the defendant and for that reason the doctrine of res ipsa loquitur is not available in the case. Therefore it is said it devolved upon plaintiff to prove some negligent act on the part of defendant or its servants and it was for the jury to find the negligent act thus proved. Where one lays specific acts or negligence in his petition, they must be proved as laid, and the presumption of negligence is not available as is the case under a general charge. [See Miller v. United Rys. Co., 155 Mo. App. 528, 134 S. W. 1045.] However this may be, the presumption, is available in cases such Us this where the petition lays a general charge of negligence against the defendant. [See Price v. Met. Street Ry. Co., 220 Mo. 435, 119 S. W. 932.] With the two rules thus stated before us, it is important, then, to ascertain with precision whether or not the charge of negligence laid in the petition is specific or general in character. The petition avers that “defendant’s servants- in charge of said car negligently caused and suffered said car to be struck and collided with by an engine of said St. Louis, Iron Mountain & Southern Railway running southwest on said company’s tracks.” It is to be noted of this charge that it does not single out any one
Defendant requested and the court refused to it the two following instructions:
“If defendant exercised all the care and foresight that was reasonably practicable, then there was no negligence, and, in determining any issue as to negligence on defendant’s part, submitted to you in these instructions, you are instructed that if there was exercised all the care that was reasonably practicable, then there was no negligence.”
“The defendant was not an insurer of the safety of the plaintiff nor was it required to exercise any degree of care or foresight that was not reasonably practicable. Therefore you aré instructed that the mere fact that plaintiff was injured, if you believe he was, does not of itself entitle him to recover in this
It is argued the court erred in refusing these instructions but we are not so persuaded. These instructions seem to be well enough in the abstract, but they were beside the case, for the question of defendant’s negligence was not controverted at the trial. There was no suggestion that defendant or its servants in charge of the car exercised any care whatever in endeavoring to obviate the collision and, indeed, there was much evidence tending to prove even recklessness on the part of the motorman. It appears that when the street car was a half block distant the watchman at the railroad crossing lowered the gates which of itself is a warning not to approach upon the railroad track. Besides this, the watchman testified and so, too, did a passenger on the car that as the car neared the track the watchman threw up his arms and hallooed a warning to the motorman. Notwithstanding this, the street car rushed through the gates theretofore lowered across the street and upon the railroad track where the collision occurred.^ No witness was placed upon the stand by defendant to contradict these statements and nothing in the record suggests that any care was used by the motorman to prevent the collision. On the contrary, all of the evidence tends to show that he heedlessly ran the car forward in the face of the warning of the watchman and through the gates as though' his attention was engaged otherwise than in discharging Ms duties as a motorman in the presence of a dangerous situation. Other proper instructions were given for defendant, and this being true, there is certainly no reversible error in the refusal of the abstract propositions of law above set out
"We have examined the evidence touching the assignment that the verdict is excessive but are not inclined to disturb the finding. The judgment should be affirmed. It is so ordered.