170 Mo. App. 574 | Mo. Ct. App. | 1913
Plaintiff was a passenger on one of defendant’s street cars and alleges that on account of its negligence she was thrown upon the street in such way as to inflict permanent bodily injury.- She instituted this action and recovered judgment in the circuit court. There was evidence tending to show that on 'the night of the 1st of September, 1910, plaintiff, her niece and a friend, left the car at Forty-first street and Troost avenue. As she attempted to alight and while in the act, the car was suddenly started, whereby she was thrown to the street. She was carried to a near-by drug store. Her injuries- were specifically stated in the petition in the following words: “This plaintiff then and there suffered a most severe sprain of her left ankle, and two of the bones in the instep of this plaintiff’s left foot were thus and thereby broken and dislocated, and this plaintiff’s left ankle and right hip and the bones, nerves, tendons and muscles connected therewith were thus and thereby strained, bruised, misplaced, wrenched and injured;' and that this plaintiff received a severe injury to her back, spine and spinal cord, and to the bones, muscles, nerves and blood vessels connected therewith.”
The contest seemed to be whether plaintiff was injured by a turning of the ankle and falling after she left the car and while walking away, or while in the act
Plaintiff was allowed to prove that she had suffered from an attack of pneumonia in consequence of her injury. Such result was not pleaded in the petition and was error unless excused by the following consideration : Plaintiff insists that she was invited outside the allegations of the petition by defendant; that is, that defendant first introduced the matter of her being afflicted with pneumonia. It is true that defendant did first broach that question, but we do not think it did so in such circumstances', or under such condition of case, as justified plaintiff in afterwards using it as an injury following the fall on the street or caused thereby. The matter came up in this way: During the time plaintiff was testifying as to her stififering and how- the injury had affected her in various ways and that she had not been able to carry on any business since the injury, plaintiff asked her what was her condition “as to weight before you were hurt, compared with your weight now. ’ ’ This was allowed over defendant’s objection; and she answered that she weighed 135 pounds before the injury and only 1191 at the trial. It is.manifest that this was brought out intending to convey the impression to the jury that her injury caused the loss in weight. But it seems that pneumonia will cause a heavy loss in flesh and defendant had been advised that shortly before the trial, though fifteen months after the injury, plaintiff had suffered an attack of that disease, and so for the purpose of showing that her loss of weight was probably due to that cause and not from the injury, defendant asked about that disease and showed that it would account for plaintiff’s loss, and that “true pneumonia does not result from injury.”’
We have not overlooked the suggestion made at the trial that it was hot intended to introduce this as a substantive ground of recovery but as an examination in answer to what defendant had brought out. But it was not so confined; for afterwards it was pointedly and specifically dwelt upon in examining a physician. He was even asked if that disease was not “more apt to strike a person whose nervous condition had been depleted and whose health was run down, than a strong healthy person.” It seems to us palpably unfair to the defendant to have its proper question in defense of what plaintiff had brought out, made the foundation for a substantive- ground of complaint not pleaded. Nor have we overlooked the suggestion that, after all, the allegations in the petition justified evidence as to pneumonia. We think they did not. By reference to the part of the petition above set forth it will be seen that the matters of which she complains are specifically alleged, and that pneumonia is not one of them. A general allegation of a certain injury will justify the admission of evidence of those things which naturally or necessarily and usually flow from it, for the defendant must be presumed to be aware of the necessary consequences of an injury he inflicts. So it is proper enough to admit evidence of those things which naturally and ordinarily ensue as a consequence of the things charged. But- it would be unreasonable and unwarranted statement to say that pneumonia was a natural and usual result following a broken foot, or
We had the question in this court where the petition alleged that plaintiff’s foot was violently wrenched, the bones broken and the ligaments torn, whereby she suffered great pain and became permanently disabled in said foot and permanently deprived of the use thereof. We held evidence of a cancer subsequently developing on the foot, making its amputation necessary, was not admissible, since specific allegations of the injury were set out which did not include cancer and an amputated foot. [Arnold v. Maryville, 110 Mo. App. 254.] The same rulé is stated and decided in an opinion by Judge BlaND in Thompson v. Railroad, 111 Mo. App. 465.
This view of pleading is in keeping with that other closely related rule always recognized in this State, that when one specifically particularizes negligence, he is held to the particulars in his proof; and when one particularly specifies the damages from a nuisance, he cannot enlarge upon it in evidence. [Pinney v. Berry, 61 Mo. 359; Smith v. McConathy, 11 Mo. 517.]
The judgment is reversed and the cause remanded.
