Worthington v. Lindell Railway Co.

Bond, J. On the eighteenth of April, 1896, the plaintiff attempted to board defendant’s car near the intersection of King’s Highway and Chouteau avenue. According to plaintiff’s statement the car was stationary at the time. According to the statements of the other witnesses it was moving slowly. There was evidence tending to show that the conductor signaled the motorman to go ahead, in consequence of which the car started wdth such suddenness'as to cause plaintiff to fall and drag him some distance, inflicting severe and painful injuries, to recover for which this action was brought, resulting in a judgment for $1,000 from which defendant appeals. At the close of the trial plaintiff’s petition was amended by interlining the italicized words in the part of the petition alleging the negligence sued for. As [166] thus amended it sets forth the negligence causing the injury in the following language: “Plaintiff further states that on the eighteenth day of April aforesaid, he was desirous of becoming a passenger on one of said defendant’s cars going east on said Chouteau avenue. Plaintiff states that one of defendant’s said cars was standing still and motionless on the eastbound track on said Chouteau avenue at the eastern side of said King’s Highway for the purpose of receiving passengers, 11 or was moving so slotvly that plaintiff could safely have hoarded, said car hut for the negligence of defendant as hereinafter set out. ’ ’ Plaintiff states that, being desirous of becoming a passenger on said car, he caught hold of certain hand-holds upon said car, which hand-holds are placed upon said car for said purpose by defendant, and put one foot upon the lower step of the platform of said car for the purpose of entering said car; and that, at this time, while plaintiff as stated was holding said hand-holds, with his foot on said platform, the motorman of said car, said motorman being an employee and agent of said defendant, carelessly and negligently and suddenly, violently,, and with an unusual and rapid speed, started said car, thereby dragging plaintiff about twenty-five feet, and throwing and precipitating plaintiff into the street, and into the dirt thereof, and upon .the stones thereof.” Npfeadinf“viq“steion?ry This interlineation did not add another to the cause of action stated in the petition. As an attempt to state a cause of action for negligently increasing the speed of a moving car it lacked the essential allegation of knowledge or opportunity thereof by ordinary care on the part of defendant that plaintiff was in the act of mounting the car. Meriwether v. R’y, 45 Mo. App. loc. cit. 534; affirmed in Schepers v. [167] R’y, 126 Mo. loc. cit. 673. The fact that neither the conductor nor motorman sees a person who boards a moving street car is not negligence per se on the part'of the company. If, however, such knowledge is actually had by these servants, or might have been had by the exercise of ordinary care, then the duty is at once imposed upon them to exercise such care as is practicable under the exigencies of the situation to enable the person safely to complete his entrance to the car. The amendment to plaintiff’s petition omitted constitutive facts, and added nothing to plaintiff’s right to recover under the previous sufficient statement of a cause of action for the sudden starting of a standing car. As there was at least one witness (plaintiff) who testified that the car was standing still when plaintiff attempted to board it, the court did not err in submitting that issue to the jury. It is however insisted by appellant that the court erred in giving of its own motion the following instruction: “If you find from the evidence that plaintiff attempted to board the defendant’s train at a place where its cars were in the habit of stopping to receive passengers, and that he had reason to believe and did believe that said train was stopping for passengers at said place; and if you further believe from the evidence that the plaintiff stepped upon the lower step of the rear car of said train for the purpose of becoming a passenger thereon; and that the defendant’s servants in charge of said car knew, or by the exercise of ordinary care would have known, that plaintiff was attempting to board said car as a passenger; and if you further believe from the evidence that after the plaintiff had so stepped upon said lower step for such purpose, the said servants in charge of said train suddenly started the same before the plaintiff had a reasonable time to get upon said car and to a place of safety, therein, and [168] that the injury complained of was caused by such sudden starting of the cars under such circumstances, and if you further believe from the evidence that the plaintiff at the time exercised ordinary care in attempting to board the car in the manner shown by the evidence, then your verdict should be for plaintiff.” instruction. The objection to this instruction is that by the use of the words “was stopping” the court submitted to the jury the issue ineffectually attempted be raised by the amendment of the petition. This objection is well taken. If the car “was stopping” it had not stopped or was moving. This is the ordinary meaning of the terms in question, as well as their grammatical import. Moreover the jury must have understood this to be- the meaning of the instruction when, they came to examine the other instructions purporting to cover the case given for plaintiff. In each of these the right of plaintiff to recover is predicated upon a finding that the car was stationary. In one of them (instruction B.) the facts supposed were substantially the same as in the one under review, except the requirement to find that the cars were standing still at the time plaintiff attempted to board them. When it is borne in mind that the instruction under review in its last clause conditioned the right of plaintiff to recover upon a finding by the jury of his attempt “to board the car in the manner shown by the evidence,” and that the weight of the evidence indicated that the car was in motion when he attempted to board it, the presumption results that the jury made their finding in accord with the tendency of the evidónce, and therefore upon an incorrect theory (under these' pleadings) of plaintiff’s right to recover. An instruction whose natural and logical effect is to mislead a jury, is prejudicial. As this is the case with the one under review, it was reversible error to give it. There [169] is no merit in the contention oí respondent that the vice of the instruction under review in submitting a theory of recovery outside of the pleadings was cured by one given (number 3) at defendant’s instance, wherein the jury were told in substance that plaintiff could not recover unless he established by a preponderance of the evidence one or the other of the two causes of action attempted to be set forth in the amended petition. As one of these was radically and incurably defective for the reason given, it was not the subject of a waiver during the trial, hence defendant’s instruction did not have that effect, nor did it create a cause of action for plaintiff not contained in his petition. It is the office of pleadings to set forth causes of action and defense, whose legal sufficiency is not determined by admissions in instructions, but is always a question of law. It is the well settled law that essential omissions in the statement of a cause of action may be taken advantage of for the first time on appeal. Smith v. Burrus, 106 Mo. 97; Bateson v. Clark, 37 Mo. 31; R. S. 1889, sec. 2047. As this case must be reversed it is unnecessary to discuss the point made as to the difference between the negligence averred and that which the evidence tended to prove. When the cause is remanded the petition will be subject to proper amendments. The judgment is reversed and the cause remanded. Judge Bland concurs. Judge Biggs dissents.