129 Mo. App. 613 | Mo. Ct. App. | 1908
Plaintiff was a passenger on one of defendant’s street cars and was injured. She brought this action for damages alleged to have resulted on account of such injury and recovered in the trial court. The defendant makes the point that a cause of action is not stated in the petition, in that it does not charge that the occurrence which hurt the plaintiff was brought about through defendant’s fault, or by its negligence. That part of the petition necessary to notice is as follows:
“Plaintiff states that she left the car on which she was a passenger, as aforesaid, at Ninth and Mulberry streets, at the station above mentioned, and that the doors thereof were opened in the usual manner, and plaintiff attempted to pass through the same; that as she was so passing through, said doors, without notice or warning to plaintiff, suddenly closed and plaintiff was crushed between the same; that as a result of being so crushed between said doors plaintiff was seriously bruised and injured about her back, sides and head, her spine was bruised and injured, and her whole nervous system was severely shocked and injured,” etc.
Plaintiff insists that in an action by a passenger
There are cases that sanction a pleading which omits to charge negligence in direct terms, but which state facts which, on their face disclose the negligence. Thus if it were alleged that the driver of a street car started the car at rapid speed down a street crowded with people and while thus speeding, fell asleep, or turned his back and entered into conversation with a passenger, when an injury resulted, the facts stated are an absolute recitation of negligence and have been held to excuse the formal statement. We think no more than this was meant by the St. Louis Court of Appeals in Keeton v. Railway, 116 Mo. App. 281. It is true that Judge Goode uses the word “presumption” in stating that there was “authority for the proposition that where the acts alleged warrant the presumption of a negligent breach of duty, it is unnecessary to charge formally that they were negligently done.” But the word was there used more in the sense of an inevitable or conclusive presumption, than otherwise. The case was where the allegation Avas of facts which, on their face disclosed negligence, viz: the sudden starting of a street car knowing that a woman, carrying a child, was in the act of mounting the car step in an effort to get aboard. The ruling made in that case was that the petition stated enough to be amendable by interlining the word “negligently.”
There is also a class of cases where it is said to be sufficient to allege facts from which the law will raise an inference of negligence. Thus if a railway company fails to fence its road where required and an animal is killed, the law fixes the liability. It is ruled in Dyer v.
But we have not been cited to a case holding the petition to be sufficient where the facts constituting the culpability of the carrier are pleaded without a charge of negligence and which on their face do not constitute or amount to negligence, by force of the statute or general law as just explained. An act which does not show for itself that it is a negligent act ought to be alleged to be negligent. It is, however, a part of plaintiff’s insistence that the petition, though omitting to charge negligence in terms, does state facts which on their face constitute negligence, which, it is-claimed, will suffice. Her idea is this: that the petition alleges the relation of carrier and passenger and her injury during that relation, that therefrom the law raises a presumption of negligence; that thereby she has alleged the facts which of themselves constitute negligence, and therefore negligence need not be charged in direct terms. We do not think the position is sound. Conceding that facts are alleged from which a presumption of negligence arises, yet that amounts to no more than alleging acts which may, or may not be negligence. It is an allegation by plaintiff that the act was negligent unless for some reason in the carrier’s knowledge, it may be shown not to be. It is not an affirmative allegation of a fact, but rather it is only an allegation of matter upon which one can base a presumption. The difference is wide and
As just stated, the basis of the action is negligence, and while the complaining passenger may rely upon the presumption of fact which the law brings to his aid for the purposes of evidence, he cannot stand alone on such presumption in stating what his case is. It is said in Volume 1, page 221, Chitty’s Pleadings that “When the law presumes a fact it should not be stated.” Thus, as illustrated in Bliss Code Pleading, Section 175, the law presumes every man innocent of crime or of fraud, and this need not be stated by the pleader in exculpation of himself. But that is where the presumption is what is known as a presumption of law pure and simple as distinguished from a presumption of fact or mixed presumption of law and fact, or what may perhaps be more properly termed an inference. Thus the happening of a Avreck to a carrier’s car does not directly prove negligence, but a wreck to a properly equipped and conducted car is so uncommon that when the wreck is proven the law will raise a presumption that there was negligence in its construction or operation. So it is stated, that the presumption of negligence drawn from
If the wreck ipso facto carried liability, then a mere allegation of the wreck without charging negligence would be good pleading. But the wreck is merely an evidential fact from which another fact may be inferred or presumed, and it is the latter fact (negligence) which is the gist of the action and Avhich fixes liability. It is true this presumption or inference may become conclusive by lack of explanation from the carrier, bid it does not lose its character of evidence; and while in such situation a court might, perhaps, declare it to be conclusive to the jury, yet that is no more than can be done in many instances where evidence stands uncontradicted.
The case of Gulick v. Loder, 13 N. J. L. 68, 72-75, is strongly illustrative of our view as herein expressed. The question concerned a judgment said to have been paid. The evidence of payment was lapse of time (twenty years) from which the law presumed payment. The question was whether the pleading should allege that it was paid, or would it suffice merely to allege the lapse of time from which payment is presumed. It was held that payment should be alleged and that the lapse of time was merely the evidence of payment and not the fact itself. The opinion states some distinctions as to different kinds of presumptions which we have not stopped to compare Avith the view taken in this state as to such distinctions; and that is not necessary to the force of the case in applicability to the question under discussion. The point in that case, as in this, is that it is not good pleading to allege evidence of the fact, instead of the fact itself.
While we have not been cited to a direct adjudication of the point by our supreme court yet there would seem to be no doubt of their views; for the rule is stated
Plaintiff’s petition may be amended. The judgment is reversed and cause remanded.
