214 Mo. 487 | Mo. | 1908
Lead Opinion
Plaintiff sued for damages for personal injuries sustained by her through, as she alleged, the negligence of defendant. At the close of the plaintiff’s testimony the court gave an instruction
Plaintiff in her petition states that she was standing in Olive street near the corner of Ninth street at the crossing in a business center of the city greatly traveled by persons on foot, waiting for a west-bound street car, “when defendant by its agents and servants violently ran a team of horses attached to a vehicle into and against plaintiff; said horses knocking plaintiff down and trampling her under their feet, thereby severely wounding and injuring plaintiff; that the injury to plaintiff was due to the carelessness and negligence of defendant’s agent in driving said horses attached to said vehicle at the time and place aforesaid and in violently running into and against plaintiff.
“Plaintiff further states that at the time of the injury aforesaid there was in full force and effect in the city of St. Louis an ordinance of said city known as section 1473 of the Municipal Code of St. Louis, Edition 1901, which provides that ‘no person who shall in this city ride or drive any animals in any highway, thoroughfare or public place quicker than or beyond a moderate gait, or shall not slacken the pace of such animal or animals in approaching any cross walk upon which any person may be ... in the act of approaching or leaving a street car, or shall ride or drive any such animals so as to cause any such animal or any vehicle attached thereto to come in collision with or strike any other object or person . . . shall be deemed guilty of a misdemeanor.’ ”
Then the petition alleges that the defendant did drive the horses “quicker than a moderate gait and did not slacken the pace,” etc., following the language of the ordinance specifically charging the doing of the acts therein forbidden and that in consequence of the
At the trial there was evidence tending to show that the defendant did negligently run the team of horses against plaintiff inflicting the injuries as stated, hut the plaintiff did not introduce the alleged ordinance in evidence and her failure to do so is relied on by defendant as the first ground which justified the court in giving the peremptory instruction. It was not on that ground, however, that the court gave the instruction. The instruction as asked was general in its terms, saying in effect that plaintiff was not entitled to recover; the court refused to give it in that form, but added as the specific reason for giving it that ‘ ‘ she having been shown by the evidence to have been guilty of contributory negligence as a matter of law.”
I. The insistence of the defendant is that what precedes the paragraph in the petition wherein the ordinance is pleaded is only a general charge of negligence, and that the ordinance and the specifications of acts in violation of it are but specifications under the general charge and that plaintiff is limited to those specifications; and in support of that contention defendant cites a number of cases, first being McManamee v. Railroad, 135 Mo. 440, wherein at page 447 this court said: ‘ ‘ The practice is well established in this State that when a general allegation of negligence, like this, is followed by an enumeration and averment of specific acts of negligence, the plaintiff will he confined to the negligence specifically assigned.”
That rule of interpretation is not a technical rule applicable only to pleading, but is a general rule of construction. A general charge of misconduct followed by specifications of particular acts is, as a general rule, merged into the specifications, or rather the specifications are deemed as explaining what the general
In a petition in which a personal injury is alleged - to have been suffered through the negligence of the defendant the pleader is not limited to one act of negligence, or to two or more acts of the same kind, hut may plead in the same count several acts, not inconsistent with each other, either of which or all of which together might have produced the result complained of. That form of pleading is not in violation of the rule that not more than one cause of action can he stated in one count, because each and all the several acts pleaded point to but one injury, one wrong or, in technical language, one injuria, for which reparation is asked. It is, therefore, competent to include in one count an act or acts constituting negligence at common law and an act or acts of negligence under a statute or ordinance all pointing to the same result. Section 629, Revised Statutes 1899, Ann. Stat., p. 652, is: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall he liberally construed, with a view to ^substantial justice between the parties. ’ ’ Keeping that mandate in mind when we come to applying the rule of construction we are now considering to a petition like the one in the McManamee case above mentioned and like the one in the case at bar, our safe course “with a view to substantial justice” is to ascertain what was the intention of the pleader, did he mean to charge two acts of negligence, one at common law and one under the ordinance, or did he mean to charge one act alone and that one under the ordinance?
But in endeavoring to give effect to the intention of the pleader we must not overlook the fact that what
So it may be said of the petition in the case now to be passed under judgment, if the facts stated in the petition, preceding those concerning the ordinance and the acts in violation thereof, are not to be understood as intended by the pleader to state a case of negligence at common láw, then, we must understand that he intended to plead but one act of negligence and that one the violation of the ordinance. The first question therefore is, what was the intention of the pleader as shown by the petition? Looking to that part of the petition which pleads the ordinance and the acts in violation of its terms we see that they are sufficient in themselves without reference to the preceding paragraph to constitute a cause of action, therefore there is no necessity for referring them back as specifications under the supposed common law'charge. The statements concerning the ordinance and the acts in violation thereof are not aided by reference to the preceding paragraph, because every fact stated in that paragraph which might be deemed necessary to complete the charge of negligence under the ordinance, is industriously repeated in the next succeeding paragraph pleading the ordinance. If therefore the first paragraph does not show an intention to state facts constituting a common law act of negligence it is a useless clause and could be stricken out of the petition without impairing its force. Then why is it in the petition? What did the pleader intend by it? What must the defendant have understood from read
But even if he did intend to plead a common law act of negligence the question still remains, did he accomplish what he intended? On this question, Thompson on Negligence, vol. 6,'page 488, says: “If the pleading fairly informs the opposite party of what he is called upon to meet, and the specific acts of negligence are followed by a general statement that they were negligently done; or if it fails, to state these facts with particularity and the opposite party nevertheless fails to claim a surprise or take the necessary steps to extricate himself from the difficulty — there ought not to be much trouble about the question. ’ ’
The petition in this case says that plaintiff was standing in the street where, under the circumstances stated, she had a right to be, “when defendant, by its agents and servants, voluntarily ran a team of horses attached to a vehicle into and against the plaintiff; said horses knocking the plaintiff down and trampling her under their feet thereby severely wounding and injuring plaintiff; that the injury to plaintiff was due to the .carelessness and negligence of defendant’s agent in driving said horses attached to said vehicle at the time and place aforesaid and in violently running into and against plaintiff. ’ ’ In what respect is that declaration wanting in specification? It describes the situation, the plaintiff’s position and the environments and then says that the defendant drove its horses against her violently, knocking her down and trampling on her, and that it was due to the driver’s negligence in driving the horses. What other act could she specify? Driving a team of horses at rapid gait into a narrow space where people are standing in plain view of the
II. Was the court justified in taking the case from the jury on the ground of the plaintiff’s supposed contributory negligence ?
The answer to that question is to be found in the evidence showing whether not the plaintiff saw the horses and carriage coming when they were so near and coming in such a manner that she had cause to apprehend that they would run against her unless she fled out of the way. The natural instinct of self-preservation is almost a conclusive answer to that question. Can we imagine a girl seventeen years old, in her right senses, seeing a team of horses coming at a rapid gait, aiming to pass through a narrow space where she was standing, threatening injury to her if she did not get out of the way, yet standing* there deliberately until she was run over and trampled under the feet of the horses? It is almost beyond belief; it is certainly beyond reasonable expectation. Yet that is the contention, and that is what the contributory negligence theory is based on.
The evidence showed that this plaintiff and her sister had stopped at the northwest corner of Ninth and Olive streets to take a west-bound street car on
That is the evidence on which it is insisted the plaintiff saw the victoria as it was coming fast all the way from near Eighth street until it was driven into the narrow space between the track and the curb where plaintiff was standing. She testified in chief that she saw the victoria over half a block away coming fast, and “before I knew, it was up by me, it came along and hit my left shoulder.” If she had been looking at it all the way it would not have been up by her and hit her before she knew it. The cross-examination was very skillful, and was aimed to bring
But having seen the team when it was a half a block or more away, was she failing in her duty to' use ordinary care for her own safety by not keeping her eye constantly on the team so as to be ready to run to the sidewalk when the danger became imminent? No, she had a right to presume that the driver would slacken his speed and either turn aside or else stop before running into the narrow space where he saw people standing. The law laid upon her no duty to anticipate that the man would behave in that way.
III. The testimony of one of the plaintiff’s witnesses, the man who jumped on the car in such haste that he knocked the plaintiff’s sister down in doing so, was read from the record of his., evidence taken at a former trial of this cause. In the course of his examination was this: “Q. What do you say about the driver? A. The driver did not seem to have good control of the horses.” On motion of defendant the answer to that question was stricken out. There was no error in that ruling, because that answer was irrelevant. There was no charge in the petition that the horses had got beyond the control of the driver, on the contrary the prevalent idea in the plaintiff’s case was that the accident occurred through the driver’s fault, not that it was from a cause beyond his control. He also testified that he saw the team coming very rapidly and 1 ‘ to avoid the team I jumped on the front end of the car instead of getting on in the usual way.” The court on motion of defendant struck out the words “to avoid the team.” This man was one of the persons standing in the street intending to board the car, he stood between the plaintiff on his left and her sister on his right. It seems that the car and the team of horses reached the place about the same time, the witness said that he saw the horses coming very fast, he jumped on the front end of the car in what he said was not the usual way, and it appears from the evidence of other witnesses that he was so hasty in his act that he struck against the plaintiff’s sister and knocked her down. Why did he behave in that unusual manner? If it was because he feared being struck by the team that would indicate that in his opinion there was a sudden danger. But
There was no error in striking out those words.
The judgment is reversed and the cause remanded to the circuit court to he re-tried according to the law as herein expressed.
SEPARATE OPINION.
Concurrence Opinion
I concur in the first and second paragraphs of the opinion, hut dissent as to the third, for the reason that the testimony of the witness as to why he jumped on the car in such haste, so as to knock plaintiff’s sister down, characterized his act and the situation as it then and there existed, which cannot speak for themselves, hut could only he shown hy oral testimony.
To illustrate, suppose at the instant of the accident the witness had exclaimed, “I jumped on the car in order to prevent being struck by the horses.” Clearly that expression would have been admissible as constituting a part of the res gestae.
