Price v. St. Louis, Kansas City & Northern Railway Co.

Henry, J. The plaintiff sued defendant for personal injuries sustained by him while attempting, as a passenger, to get off of defendant’s train at Dalton, a station on its road, and obtained a judgment for $3,500, from which defendant has appealed. 1. Negligence: pleading: failure of proof: variance: railroad. The following, and no other, is the cause of action stated in the petition : “ That plaintiff purchased a ticket defendant authorizing plaintiff to be carried on defendant’s passenger cars from the ^y. 0p jyfoberly to the town of Dalton, under the rules and regulations of law prescribed by the laws of this State for said defendant in the transportation of passengers upon its road, and that plaintiff, with his ticket aforesaid, got upon the regular passenger train of said defendant at Moherly, and was transported on same to Dalton, and that, on the arrival of the train at Dalton the plaintiff, in leaving said train, without his fault or negligence, but by the fault of defendant in not stopping the motion of the train a reasonable time to admit of plaintiff’s leaving said cars, was thrown with great violence on the platform of the depot, at Dalton, and was greatly injured, bruised and strained.” There was a conflict of evidence in regard to the stoppage of the ti’ain, the evidence for the plaintiff’ proving that it did not, while that adduced by the defendant, that it did stop. The jury might well have found that issue for the plaintiff. The plaintiff'’s deposition was taken and read in his behalf, and in his testimony in chief, he stated : “ I was notified just before reaching Dalton that I would get off’ there; I then made an effort to reach the door of the car, and when I got to the door I saw no light, nor the depot, and the ears were still in motion.” In his cross-examination, he stated: “'I did not see the depot at all; if there was any light at the depot I did not see it.” Again : — 416 — i£It was so dark that I could not see the ground, or any ■other object outside of the train.” Mrs. Gilliam, a witness for the plaintiff, testified that she couldn’t tell whether there was a light at the depot or not; didn’t think the agent had time to strike a light. Among other instructions for plaintiff, given by the court, is the following: <£ If the jui’y believe from the ■evidence that any of the defendant’s servants or agents were negligent in failing to stop the train at Dalton station a sufficient length of time to allow plaintiff to get off, or in suddenly moving the train forward while plaintiff was in the act of getting off’, or in foiling to keep the depot platform properly lighted up, or in directing the plaintiff' to get off while the train was in motion, and that by reason of such negligence the plaintiff was injured, without any fault on his part directly contributing’ thereto, then the verdict should be for the plaintiff.” I have italicized that portion of the instruction which presents the principal question for consideration in this case. It will be observed, that if the plaintiff had failed to establish the fact that the train was not stopped, as alleged in the petition, still, under this instruction, the jury was authorized to give him a verdict, because the depot was not lighted. If the only negligence proved was the failure to have the depot lighted, would we have a case of variance, under our statute, or a failure of proof? The case of Waldhier v. The Hannibal & St. Joseph R. R. Co., 71 Mo. 514, is decisive of the question; and if we adhere to the rule there announced, we must reverse this judgment. A plaintiff must recover on the cause of action stated in his petition. This is an elementary principle of pleading .and practice, and a total departure from it, such as we are here urged to make, would lead to confusion, uncertainty .and gross injustice in the administration of the law. The petition is intended to apprise the defendant of what is alleged against him, to enable him to prepare with evidence, •to meet it, but if the plaintiff' can state one cause of action, — 417 — and come to trial prepared to prove another, of which defendant has no intimation until the ease has gone to the jury, an undue advantage would be gained by the plaintiff, and the forms of law converted into snares and pit-falls. The statute has made provision for a mere variance, which occurs “ where there is a lack of correspondence between the allegation of the cause of action and the proof, in some particular or particularsand not where the cause of action alleged is unproved, “in its entire scope and'meaning.” Waldhier v. The Hannibal & St. Joseph R. R. Co., and cases then cited. Here there was a conflict of evidence as to the facts constituting the cause of action alleged in the petition, and the jury might have found for defendant on that cause of action, and yet, under the instruction we have been considei’ing, have given plaintiff a verdict because the depot was not lighted, a cause of action which was not stated in the petition. Defendant’s witnesses testified that the train was stopped a sufficient time to enable plaintiff to get off',, and the jury might have believed them, and yet, under this instruction, they were told that their verdict should be for plaintiff if they found that the depot was not lighted. The doctrine is well and clearly expressed in Mayor v. Humphries, 1 Carr. & Payne 251. The declaration stated that defendant was the owner of a stage coach, and that plaintiff was a passenger, and that the servants of defendants so negligently and unskillfully “ drove, conducted and managed” the said coach that it was overturned and plaintiff seriously injured. The defense was, that the coach overturned, not from the negligence of the driver, but from the linch-pin coming out, and, therefore, the plaintiff could not recover for negligent driving. Gurney, in reply, contended that it was just as actionable for defendants to injure passengers by negligently sending out an insufficient coach, as a bad coachman. Littledale, J.: “I am decidedly of opinion that if the accident happened from the ipsuffi-ciency of the coach, the plaintiff cannot recover on this — 418 — declaration. If the negligence was in sending out an unsound coach, the plaintiff should have laid it so in his declaration.” 2. evidence: instruction. It is contended that, inasmuch as the defendant did not object to the evidence tending to show that there was-no light at the depot, he cannot now complain of it. If he were here asking a reversal because the court admitted such evidence, that would be-a complete answer to his demand; but here, after the evidence, irrelevant and inadmissible, as of a distinct cause of action was received, the court, against the defendant’s-objection, declared to the jury that they might find a verdict for plaintiff on that evidence. 3. Railroad: negligence : passenger alighting from moving train. Another error in that instruction is the declaration,, that if defendant’s servants or agents were negligent in t° stop the train at Dalton station a. sufficient length of time to allow plaintiff to-get off', and by reason of such negligence he was injured, he was entitled to a verdict. If there was no negligence-on the part of defendant but a failure to stop the train, and plaintiff voluntarily attempted to get off, while it was in motion, he could maintain no action for any injury sustained in consequence of such attempt. He cannot leap-from the train while in rapid motion in order to avoid being carried beyond his stopping place, but at his own risk. Nelson v. The Atlantic & Pacific R. R. Co., 68 Mo. 595, and cases there cited. Whether stepping “ from a car not yet beyond the platform, whose motion is so slight as to he almost or quite imperceptible,” is negligence or not, “ is for the jury to decide from the physical condition of the person and all the attendant circumstances.” Doss v. M., K. & T. R. R. Co., 59 Mo. 37. The instruction in question withdraws from the jury all the attendant circumstances,, and predicates the right of plaintiff to recover upon the mere failure to stop the train, and plaintiff’s injury in attempting to get off while it was in motion. It does exempt the defendant if any fault of plaintiff directly contributed — 419 — to the injury, but a construction of which it is susceptible, and which a jury would most probably place upon it is, that the negligence of plaintiff, which would exonerate the defendant, is other negligence than that of attempting to get off while the train is in motion. It is too general and indefinite on that subject. Instead of leaving, as the only guide to the jury, the general direction to find for plaintiff, if the defendant was negligent in not stopping the train, unless plaintiff was guilty of negligence contributing to the injury, they should have been required to find, whether it was prudent or not, for plaintiff', under all the circumstances, to attempt to get from the train before it came to a full stop. The speed of the train, the conduct of the conductor, the darkness of the hour, the age and activity of plaintiff — all these circumstances were for consideration in determining whether plaintiff was prudent or imprudent in his attempt to get from the train. The second instruction for plaintiff' asserts that “ if plaintiff, by the negligence of any of the servants of the-defendant, while getting off the train, without fault on his-part,” received the injuries complained of, he was entitled to a verdict. The fault of this instruction is in a failure-to confine the negligence to that which was specifically alleged in the petition. It is of the same character as that, contained in the other instruction, except that the latter is-special, and this is general. The latter authorized a verdict, if the depot was not lighted, while this instruction warranted a verdict for plaintiff if the depot was not lighted, or if any negligence of any servant, whether employed in running the train or not, occasioned the injury. 4. negligence: contributory negligence. The last instruction for plaintiff is but an abstract proposition of law, erroneous it is true, but of no application whatever in the case. It was as follows : “ Jtven should the jury believe from the evidence that the plaintiff- may have been negligent, and that such negligence on his part may have contributed to the injury, yet, if any of the defendant’s agents or servants coul cl — 420 — have prevented the injury by the use of ordinary care, skill and caution, and failed to do so, then the plaintiff is entitled to recover.” In a proper case, it would have required the qualification that defendant could have prevented the injury after becoming aware of plaintiff’s danger. Here there was no time after the discovery of the danger to exercise the care to prevent it which is required, where the doctrine is applicable. The injury occurred simultaneously with the appearance of the danger. The negligence producing the danger had occurred, on plaintiff’s theory, and the danger to plaintiff was not apparent until his attempt to get from the cars, in which the injury occurred. If he did this without compulsion or suggestion of the defendant’s agents, and they did not know of his purpose to get off; or, if they compelled, or advised him to get off while the train was in motion, the doctrine of the instruction, correctly given, could have had no application to the case. If defendant’s agents knew of his purpose to get off and made no effort to prevent it, such an instruction might have been appropriate, but there is no pretence that such was the case, and the instruction, therefore, should not have been given. The trial must be of the cause of action stated in the petition, and the instructions must relate to that and no other cause of action. The anxiety of attorneys to get a verdict not unfrequently spoils a good case by prompting them to ask for more than they are entitled to, when the case would be safe under just such instructions as should be given; and we are frequently compelled, with regret, to reverse judgments for errors occurring in the trial, believing at the same time, that in all probability the result would have been the same, if no error had been committed. Eut it is not' for us to say that an instruction which permits a recovery upon a cause of action proved, but not stated in the petition, was not that upon which, plaintiff recovered. Especially is this the case when there is a conflict of evidence as to the facts alleged as the cause of — 421 — action, and no conflict of evidence as to the cause of action mentioned in the instruction, and not statecjffn the petition. The judgment is reversed and the cause remanded. All concur, except Norton, J., who dissents.