Waechter v. St. Louis & Meramec River Railroad, 113 Mo. App. 270

113 Mo. App. 270 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts)'. — 1. The matter stated as inducement in the first count of the petition covers over a page and one-half of the printed abstract (ordinary size). The second count begins as follows :

“For the purpose of stating a second cause of action plaintiff hereby repeats all the facts above recited (except the specifications of negligence and of the damages thereby sustained by said minor) and prays that the said facts be taken as part of this second cause of action to avoid unnecessary prolixity in this petition.”

Then follow the allegations of intentional injury. For the reason the matter of inducement is not set out in full in the second count, the defendant contends the petition contains but one count. Its position is, that a cause of action cannot be stated by reference to or by adoption of allegations in another cause of action. Section 593 of the Code provides that different causes of action joined in the same petition “must be separately stated, with the relief sought for each cause of action, in such manner that they may be intelligibly distinguished.”

In Bricker v. Railway, 83 Mo. 391, it is said: “When a pleader includes in his statement or petition several distinct causes of action, it is unnecessary for him to repeat allegations which are applicable to them all.” The statement in the case alleged the killing of plaintiff’s stock by defendant’s locomotive and engine, on three different dates, and contained but one allegation that the stock, at the three different dates, got upon defendant’s road where it was required by law to fence its right of way but had neglected to do so. The court held that it was unnecessary to repeat in every count the allegation of failure to fence as it was common to them all.

In St. Louis Gas Light Co. v. St. Louis, 86 Mo. l. c. 498, it is said:

“The petition consists of various counts, two for each month — one for the price of the gas, and one for the other services. The first count sets out the incorporation of the three parties to the contract, the ordinance directing the contract to be made, the contract and the terns thereof. These matters are not stated in the second and subsequent counts, but in them reference is made to the first by the use of such terms as fin the district aforesaid,’ ‘under said contract,’ and ‘agreed as aforesaid.’ ”

It was held that subsequent counts might be made certain by reference to preceding ones.

The rule always has been, that where matter of inducement is stated in the first count (if this count be good) a mere reference to it in subsequent counts is sufficient. [Loomis v. Swick, 3 Wend. 205.] The contention that the counts are a unit, stating two repugnant causes of action, we do not think is supported by either reason or authority. The petition contains two causes of action, separately stated in such manner as to be intelligibly distinguished. It is true, the same act-causing the injury is set forth in both counts of the petition. The difference in the counts is not in the act but in its quality. In the first its quality is described as negligence, and in the second count as willfulness. Proof of negligence necessarily disproves willfulness and vioe versa, and for this reason they could not be joined in the same count. The cause of action was the injury, and the two counts stated it in different ways to meet the evidence, Avhich might show that it occurred in the manner alleged in the first or the manner alleged in the second count. That the same cause of action' may be stated in this way, in different counts, as the various theories or phases of the case may alternate, is clearly permissible and is common practice. [R. S. 1899, sec. 629; Brownell v. Railroad, 47 Mo. 239; Owens v. Railroad, 58 Mo. 386.]

2. We do not think the court erred in refusing to compel the plaintiff to elect upon which count he would proceed. As before stated, there was but one cause of action, though stated in different ways. The evidence, it seems to us, would haver justified a verdict on either count; it shows that the motorman in charge of defendant’s car was either extremely negligent, or worse, was reckless of human life. Where there is evidence supporting two theories, upon either of which plaintiff might recover, and both are properly pleaded, the plaintiff is entitled to have both theories submitted to> the jury, and it wóuld be a denial of his legal rights to withdraw either from the jury’s consideration.

3. It is contended that plaintiff should have been nonsuited for the reason his own evidence shows he voluntarily put himself in a place of peril and was thereafter negligent (down to the time of his injury )in failing to take proper precautions to protect himself. The facts do not justify the statement that plaintiff voluntarily chose to place himself near the north bound track where he was injured. He had to go there to take passage on the Lee avenue car, and had a right to go there for that purpose. ” Plaintiff testified that as he passed • between the two Lee avenue cars, he looked east but saw no car coming on the north track. He was detained in a position of danger for two or three minutes by the bunch, of passengers preceding him, and said he lingered behind for the purpose of giving the lady passengers an opportunity to get off the first car and aboard the seeond) and during the time he was standing on the street he did not look east for a car. Plaintiff’s evidence is that his view of the north track was obstructed by the ■people ahead of him and he could not have seen east, if he had looked, without stepping back on to the north track; that he was facing’ to get on the car and did not pay attention to the north track, knowing all the while that he was in a position of danger and that prudence required him to look out for a west bound car. As applicable to this phase of the case, defendant’s counsel in his brief quotes the following from the case of Holwerson v. Railway, 157 Mo. 227, 57 S. W. 770; (quoted from Kirtley v. Railroad, 65 Fed. Rep. 391) : “Conceding that there was duty upon the defendant’s servants to anticipate that persons would be upon the track, this is set ■ oft’ by the duty on the part of the deceased to anticipate that trains would run on the track, and hence keep a lookout for them. Conceding that a careful lookout on the part of the defendant’s servants would have revealed the deceased on the track, this is set off by the fact that a diligent outlook by the deceased would have revealed the approach of the engine at his rear. Conceding that the defendant’s servants might have stopped the •engine by the exercise of ordinary care before running-on to the deceased, this concession is set off by the indisputable fact that the deceased after he might have discovered the engine, and even at a later stage in the • events which led up to the catastrophe, might have step- - ped aside and have avoided the engine.” In the same case, at page 225, we find the following:

“The whole law on the subject is so aptly expressed by Macfarlane, J., in Watson v. Railroad, 133 Mo. l. c. 250, that to attempt to improve upon it or to elucidate it would be as puerile as to try to ‘paint the lily,’ and we therefore simply quote and approve it. That learned jurist’s formulation of the rule is this:

“ ‘In order to avoid the effect of the unquestioned. negligence of the deceased, plaintiff charges that defendant’s employees failed to observe proper care after the peril to which he had exposed himself was known to them, or by reasonable care might have been known. The rule is thus invoked, which is well settled in this State, that, though .one has negligently placed himself upon a railroad track in front of a moving train, those operating it owe him the duty of care to avoid injuring him, and his previous negligence will not bar a recovery if injury results to him from neglect of such duty.

“ ‘But to carry this doctrine to the length of saying that one, who knowingly crosses the track of a railway, in such close proximity to a moving train as to be struck thereby before he could cross, would not be guilty of concurring negligence, would virtually abolish the law of contributory negligence, altogether, and render nugatory a long and uniform line of decisions of this court. (Boyd v. Railroad, 105 Mo. 371, 16 S. W. 909, and cases cited, ) ’ ” '

As held by Judge Marshall, who wrote the opinion in the Holwerson case, the doctrine of negligence and contributory negligence, in its last analysis, is the effort to determine the immediate and direct cause of the injury and to ascertain whether the plaintiff was guilty of negligence which contributed with the defendant’s negligence to produce the injury, and wherever it appears from the ultimate facts proved that plaintiff was guilty of contributory negligence it ends the case.

It clearly appears from the evidence that plaintiff’s negligence, if he was negligent in placing himself where he was hurt, was prior to that of the motorman’s. This prior negligence was remote, not a direct or proximate cause of the injury and plaintiff was entitled to go to the jury, unless his own evidence shows that his prior negligence continued down to the time of the happening of the accident; if it did tben his negligence concurred with that of the motorman and plaintiff cannot recover. We do not think that plaintiff’s evidence convicts him of continuing negligence as a matter of law. It is true, he knew he was in a place of danger and that a west bound car might run over the north track at any moment, and before he could board the Lee avenue car, but his view of the north track was obstructed and he was pressing forward to board the car which, if he had succeeded in doing, would have placed him out of danger. The plaintiff’s duty to look and listen for an approaching car on the north track should be measured by his opportunity to see and hear the car, and his environment should be taken into consideration, and if, after considing these, it appears he used such care as a reasonably prudent person would have used in the same or similar circumstances, he would not, as a matter of law, be convicted of contributory negligence because he failed to discover the car in time to get out of its way. The question was one of fact for the jury and was submitted to them by the court on apporpriate instructions.

4. Defendant insists that the verdict is excessive and evinces prejudice and passion on the part of the jury. In this character of case, the damages cannot be mathematically calculated. They should be estimated on the basis of compensation. Pain of body and mental anguish resulting from an injury are elements that enter into the estimate of the damages. The uncertainty of correctly estimating' what is a fair money compensation for pain of body and mental anguish is shown by the wide difference in the amounts, assessed by juries in similar cases. We might go further and say that the reported cases also show a like contrast in the judgment of the appellate courts as to what are excessive damages. We think this is due more to temperament than to sound, conservative judgment. The question is one which must necessarily be deferred to the jury and the trial court as they are in a much better position, from having seen and heard the plaintiff and all the other witnesses, to correctly estimate the damages than is the appellate court who neither sees nor hears any of the witnesses, and we do not think it is wise practice for appellate courts to interfere with the verdicts of juries on account of the damages assessed and take upon themselves the task of estimating them in this class of cases. The verdict of- the jury should not he disturbed, unless the ■damages assessed are so excessive as to shock the moral sense, or it clearly appears that the jury was influenced by passion' or prejudice. There is no indication in the record before us that the jury was inflamed by passion ■or was prejudiced, and we áre not prepared to say that the damages are grossly excessive.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.