Munro v. St. Louis & San Francisco Railroad

CAULFIELD, J. (after stating the facts). — I. The defendant first complains of the trial court’s action in overruling its motion made at the close of all the evidence to require plaintiff to elect upon which of the first two counts of the petition he would stand. The defendant concedes the rule to be, that a party has the right to state his cause of action in different consistent counts, and does not contend that these counts are inconsistent; but defendant asserts that no one count states a complete cause of action; that by alleging in each count that the negligence therein assigned “directly contributed to cause plaintiff’s said injury” plaintiff concedes that such negligence was not alone the proximate cause of the injury and is trying to borrow from the other counts to make its cause of action complete. This was nothing but an attack upon these two counts for the alleged reason that neither of them stated a cause of action. To permit such an attack by motion to compel election would be to make the motion perform the office of a demurrer. We are not cited to any case where such a use of the motion has been sanctioned and have concluded that it cannot properly be so used. The motion was properly overruled. II. Defendant’s next contention is, that its objection to the introduction of any testimony under the first count of the petition should have been sustained because the first count did not state a cause of action. In support of its theory that this count did not state a cause of action defendant asserts that “but one act of negligence is pleaded therein, which is not alleged to. have been the proximate cause of paintiff’s injury, but is merely alleged to have directly contributed thereto.” We may concede the correctness of defendant’s description of the first count and still not agree that it does — 727 — not state a cause of action. When the entire petition is read it is apparent that the plaintiff intended t-charge that three negligent acts contributed in producing his injury, for all of which defendant is responsible. Under these circumstances an allegation as to each act that it “directly contributed” to cause- the injury does not render the petition defective. [Deschner v. St. Louis & M. R. Ry. Co., 200 Mo. 310, 98 S. W. 737; Parker v. United Rwys. Co. of St. Louis, 133 S. W. 137, 140.] It is true that the three acts were stated in different counts as if they were different causes of action, but as a matter of fact, plaintiff had but one cause of action, viz., his injury caused by defendants ngligehce. That negligence might have consisted of one or several negligent acts, and in stating his case plaintiff was not confined, to one of them, but was privileged to plead several, if not inconsistent with each other. Pointing to but one injuria for which reparation was asked, they might all have been stated in one count. [Thompson v. Livery Co., 214 Mo. 487, 491, 113 S. W. 1128; Senn v. Southern Ry. Co., 135 Mo. 512, 519, 36 S. W. 367.] Defendant concedes this, but urges that “each count of the petition must be sufficient in itself to support a verdict upon said count” and would have us ignore the fact, made plain by reading the petition as a whole, that plaintiff intends to charge that the negligent act specified in the first “count” “directly, contributed,” with other negligent acts of the defendant, to cause the injury upon which the suit was brought. We cannot better show the inapplicability of that rule to the case, at bar than by quoting from a carefully considered opinion recently written by Judge Nortoni and delivered by this court. We refer to the case of Richard Brown & Son C. Co. v. Bambrick Bros. Const. Co., 150, Mo. App. 505, 131 S. W. 134, 135, where it was said: “It is true enough the separate counts of a petition must be complete in themselves where they proceed upon separate and distinct causes of action as they properly should in — 728 — every case. But this rule does not obtain when there is only one cause of action set forth in the petition which might properly be pleaded in one count and has been mistakenly set forth separately. In such circumstances, after judgment, the entire pleading should be construed, in aid of the verdict as setting up a single cause of action irrespective of the intended division.” We are convinced that reading the petition as a whole it is not to be construed as failing to charge that defendant’s breach of duty was the proximate cause of plaintiff’s injury, or as justifying an implication that plaintiff was guilty of contributory negligence. The trial court’s action in overruling defendant’s objection to the .introduction of any evidence was correct and is approved. III. Defendant’s next “position is, that under all the facts and circumstances in evidence, the court was not justified in submitting to the jury the question of a negligent condition of the platform.” We have examined the record carefully and are convinced that the evidence was sufficient to justify submitting that question to the jury under proper instructions. IV. Defendant next contends that the court erred in giving plaintiff’s first instruction because said instructon failed to require the jury to find that defendant knew or by the exercise of ordinary care could have known of the alleged defective condition of said platform, a sufficient time to afford it a reasonable opportunity to repair it. We find that none of the instructions treat of defendant’s knowledge or constructive, notice of the defect at all. This was error. In an action, such as this, for injuries resulting after the relation of carrier and passenger has ended, the defendant is held only for lack of ordinary care in respect of platforms and approaches. [Fillingham v. St. Louis Transit Co., 102 Mo. App. 573, 582, 77 S. W. 314; 4 Eliott on — 729 — Railroads, sec. 1590; Joyce v. Railroad, 219 Mo. 344, 373, 118 S. W. 21.] And where, as here, it does not appear that the defect was caused by the defendant or its servants, the plaintiff must prove that the defendant or its servants knew or by the exercise of ordinary care could have known of the defect in time to have reasonable opportunity to repair.it. That was the very pith of plaintiff’s case and was a fact in issue which should have been submitted to the jury by plaintiff’s instructions. [Zellars v. Missouri Water & Light Co., 92 Mo. App. 107, 122.] Nor do we find anything in defendant’s instructions supplying the omission. But plaintiff asserts that where facts are presumed as a matter of law it is not necessary to submit them to the jury and cites Hitt v. Kansas City, 110 Mo. App. 713, 716, 85 S. W. 669, where the court said, “Where the defect has existed for a long time the law presumes knowledge upon the part of the city and that it had such a reasonable time' within which to. remedy such defect.” But in its statement of facts the court said, “It is not denied that whatever its condition may have been the defendant had notice of it.” So that the question of knowledge was not involved in that case at all. If that case is to be taken as holding that mere existence of a defect for a long time without regard to its obviousness or location raises a presumption of knowledge of it, we are not prepared to agree with it. The question is, whether the defendant failed to exercise ordinary care, and is to be determined by the jury unless but one view could be entertained concerning it. What is ordinary care necessarily depends upon the facts and circumstances of each case. A failure for a very short time to discover and repair a yawning chasm in the floor of a crowded railroad depot would be gross negligence, Avhile it may be seriously doubted whether a failure to discover and repair a very slight decayed spot in the comparatively new platform of a flag station, used mostly for freight, is negligence at all. The latter must at least be suf — 730 — ficieutly obvious that it is discoverable by such an inspection as would respond to the duty of exercising ordinary care, and the railroad company is not required to make such inspection oftener than the exercise of ordinary care would require — what is ordinary care depending, as we have said, upon the facts and circumstances of the particular case. This distinction is illustrated to some extent by the cases of Fullerton v. Fordyce, 144 Mo. 519, 44 S. W. 1053, and James v. Railroad, 107 Mo. 480, 18 S. W. 31. In the first case, a hole six feet long and eight inches wide had been made in a depot platform by the defendant’s servants and the court held that to leave it unrepaired for four days was negligence as a matter of law. The court distinguished the facts before it from the facts of the James case where the hole Avas made with an auger and was from one and one-half to two inches in diameter, and the court said that it could not assume “that it is negligence to permit a hole to remain in a railroad station platform.” Plaintiff calls our attention to the fact that in the Zellers case the court, upon rehearing, repeated the rule, “that it is not reversible error to assume that as a fact which was conceded at the trial, or which was established by un contradicted and uncontroverted evidence,” and applying it to the facts of the case before it held it not to be error to omit from an instruction the question of defendant’s knowledge of the defect said to have caused the injury. But, as a foundation for that holding, the court said: “The entire evidence, including that for defendant, shoAvs that defendant’s servants to Avhom it had delegated the duty to keep the place safe knew of the defect and of its being unsafe.” In the case at bar there is no pretense of such knowledge on the part of defendant’s servants. The plaintiff must recover, if at all, upon the theory that the facts and circumstances, including the nature and location of the defect and length of time it existed, were such as to indicate that the defendant failed to exercise ordinary care in fail — 731 — iug to discover and repair it before plaintiff was injured. We do not agree that in this case the facts and circumstances were so clear, uncontroverted and conclusive that the defendant was not entitled to have the finding of the jury upon them. The defendant’s answer put in issue all those allegations of the petition as to which plaintiff had the burden of proof. When a party having the burden of proof offers testimony, the other party is entitled to have the jury determine the credibility of such testimony, even though offering nothing to contradict it. [Gannon v. Laclede Gas Light Co., 145 Mo. 502, 517, 47 S. W. 907.] Of course the other party may either expressly or impliedly concede a fact by its pleading or by offering testimony in proof of the fact, or by conduct at the trial explainable only on the theory that it concedes the fact. But the fact is not to be taken as conceded merely because of a failure to offer contrary testimony. Now the testimony before us tends to prove that witnesses had noticed some defect in the platform before plaintiff Avas hurt, but the time that they say they noticed it is not at all uniform. Plaintiff admitted going to the platform quite frequently without noticing its exact condition at all. Miss Sauerhage said that she had noticed a bad place “before the accident.” Kavanaugh said merely that he was familiar with the “platform;” Sam Henderson that he had noticed it off and on “always as we came through;” George O’Neill, that he had first noticed the hole for four or five days beforehand; Mr. Knight, that several months before he had noticed a defective place; Wierschem, that- he hauléd milk over the platform and noticed it “all the time.” Even if the credibility of all these witnesses be taken to have been established and not attacked and it be accepted that they had all noticed the defective place at approximately the same time before plaintiff was hurt, AAdiieh is not a fact, still they were not the servants of defendant and the fact that they noticed the defect beforehand was merely evidence tending to prove that if — 732 — defendant had exercised ordinary care it would have discovered the defect in time, etc. Their noticing it was merely a fact to he considered by the jury with all the other facts and circumstances shown in evidence. It was not at all conclusive. Among those other facts and circumstances may be included the facts, tended to be proven by the evidence that the defect was a comparatively slight one in an expanse of eight hundred square feet of platform; that the platform was comparatively new, of substantial planking, and primarily intended as a place to load milk cans on trains, being merely a flag station little used for passengers. For the error in this instruction the judgment is reversed and the cause remanded. Reynolds, P. J., and Nortoni, J., concur.