Reisenleiter v. United Railways Co.

CAULFIELD, J. (after stating the facts).' — The only assignment of error which we need notice on this appeal is that the court erred in refusing to give at the close of the case the instruction in the nature of a demurrer to the evidence as requested by the defend-' ant. It is urged that this instruction should have been given because there was no evidence that the defendant was the owner or operator of- the car from which it is alleged the plaintiff was jerked and that therefore the [93] plaintiff’s proof was fatally insufficient. Counsel for defendant cites Frisby v. St. Louis Transit Co., 214 Mo. 567, 113 S. W. 1059. There is no doubt that that case fully sustains the legal proposition for which defendant contends. That was • a case where the suit was instituted by plaintiff to recover of the St. Louis Transit Company damages for negligence and the Supreme Court held that plaintiff’s case was fatally defective and that the demurrer to the evidence was properly sustained because there was no evidence contained in the record which tended,to show that the defendant owned or operated the car which caused the injury complained of. In effect the rule laid down there was that the evidence must support the allegations as to the ownership or operation of the car at the time of the injury or else plaintiff must fail. That is unquestionably the rule of law' in this state and we are hound to follow it in this case. It is, however, also the rule that slight evidence tending to support the inference that defendant owns or operates the road will be sufficient, where it is not combated, and, except for the general denial, there is no intimation that the defendant resists the claim on the ground that it was not the operator. [Geiser v. St. L. I. M. & S. Ry. Co., 61 Mo. App. 459; O’Keefe v. United Railways Co., 124 Mo. App. 613, 619, 620, 101 S. W. 1144.] We have most carefully examined the testimony, with a view to' ascertaining whether there is the least evidence tending to support such inference and .have been unable to find it. The record is barren in that respect. There is not the slightest intimation by any witness that the defendant owned any street car nor that it or its agents or servants operated or had anything to do with any street car. It appears merely that plaintiff was injured by the jerking forward of a car on Easton avenue. Whose car it is, or by whom it was operated is blank. So far as the evidence discloses, any company other than the defendant might have [94] owned or operated tbe street car which injured the plaintiff. Under these circumstances we are hound to follow the ruling of our Supreme Court in Frisby v. Railway, supra, and reverse and remand the cause. Plaintiff urges however, that defendant’s plea of contributory negligence admits the allegations of the petition as to its operation of the car and its negligence, notwithstanding its general denial. This idea we deem negatived by the Supreme Court in Peterson v. Met. Street Ry. Co., 211 Mo. 498, 520, 111 S. W. 37. Neither are we able to agree with plaintiff that the language of defendant’s plea is so peculiar that it may be taken to admit that defendant operated the car which injured plaintiff. It is true that it speaks of plaintiff “attempt-, ing to board the street car while it was in motion” and it undoubtedly may betaken to refer to the car which the petition alleges was operated by the defendant. In other words the answer may be taken to read as if it spoke of plaintiff “attempting to board the car which plaintiff alleges was operated by the defendant.” It could not be fairly construed to mean more than that. But such meaning is a far step from an admission that the car was owned and operated by the defendant. Plaintiff might be relieved by that language from proving that he attempted to board a car but the burden would still be on him to show his injury, and the facts necessary to place the responsibility therefor upon defendant. Plaintiff suggests that we refer to other cases which have been heard in this court with reference to the United Railways Company for information.as to whether it operated the car in question at the time of plaintiff’s injury. The same kind of a suggestion was made to the Supreme Court in the case of Little Rock Trust Co. v. S. M. & A. Ry. Co., 195 Mo. 669, 691, 93 S. W. 944 and that court answered the suggestion by saying “it is apparent that this court cannot look to any facts that appeared to the court in that case in order to help [95] out a judgment in this case, for the very simple reason that the plaintiff in this case is different from the plaintiff in that case.” We are compelled to make the same answer to this plaintiff. Neither do we. feel justified in holding that courts can take judicial notice without proof that on September 11, 1907, the defendant was the owner of the Easton avenue line or was operating the car which caused plaintiff’s injury. The judgment will be reversed and the cause remanded. Reynolds, P. J., and Nortoni, Jconcur.