Israel v. United Railways Co.

ALLEN, J. This is an action for damages alleged to have been suffered by plaintiff by reason of' the running of one of defendant’s cars into, a building in which plaintiff was operating a hotel. Plaintiff was not the owner of the building, but was conducting a hotel on the second and third floors thereof, and sues for the loss entailed by the interruption of his-business. At the close of plaintiff’s case, defendant offered an instruction in the nature of a demurrer to» [658] the evidence, which the court gave. Under this instruction of the court, the jury returned a verdict in favor of defendant, and judgment was rendered accordingly. Thereafter, on motion of plaintiff, the court set aside the verdict and granted plaintiff a new .trial, from which action of the court defendant has appealed. The hotel in question was located on' the northeast corner of Thirteenth and Market streets in the city of St. Louis, and the tracks of defendant railway company extend along Market street in front of the building. The petition charges that “defendant’s employees, agents and servants in charge of a work train of defendant (consisting of one freight car of huge dimensions and one motor or tool car) in the performance of their duties, were operating and running said work train on the eastbound track of defendant’s said street railway, and by said Thirteenth and Market streets, there is a switch owned and constructed by defendant, which connects with and extends from said eastbound track, which said switch was likely to cause cars running thereon to jump the track, unless said cars were run over and passed said switch in a slow and careful manner, all of which was known to defendant, its employees, agents, and servants in charge of said work train, but that said employees, agents and servants of defendant in charge of said work train knowing the dangerous condition of the track, and that said work train was likely to jump from said track unless operated carefully thereover, at said time negligently and carelessly operated said work train at a high and dangerous rate of speed, to-wit, thirty miles an hour over and across said switch, at said intersection of Thirteenth and Market streets; and by reason of the said high and dangerous rate of speed and the negligence and carelessness of defendant’s employees, agents and servants in the operation and running of said work train one car thereof (the huge freight car) [659] was caused to and did jump from said track and run into and through the west wall of the storeroom on the first floor of said building, under plaintiff’s hotel, etc.” The answer was a* general denial. It is unnecessary to review the evidence in detail. It was shown that the ear in question, which was a large work car, for some reason became uncoupled and broke away from the motor car which was pulling it, left the track and ran into the building in question, tearing a huge hole in it. And plaintiff adduced testimony showing that defendant had no track running into the hotel building, and tending to show that the defendant had no right to operate cars elsewhere than upon its tracks. There is much testimony in the record touching the loss claimed to have been suffered by plaintiff in his hotel business. But the record is barren of any evidence as to what caused the car to leave the track and plunge into the building. Plaintiff in his petition charges specific acts of negligence, averring that the car was being operated at a high and dangerous rate of speed, to-wit, thirty miles an hour, and that by reason of the said high and dangerous rate of speed, and the negligence of defendant’s agents and servants, in the operation and running of the car, the latter was caused to and did jump from the track and run into the building. There is however, no evidence whatsoever to sustain the specific charge of negligence. There is not a single thing in the record showing what was the speed of the car, nor' any negligence in its operation by the agents and servants of defendant. Nothing was shown as to the track, except that defendant maintained a switch at this point. This being the ease, plaintiff’s case as alleged was not proved. It is a well settled doctrine that where specific acts of negligence are alleged in a petition, plaintiff can recover only upon proof of the specific negligence660 charged. [McGrath v. Transit Co., 197 Mo. 97, 94 S. W. 872; Roscoe v. Metropolitan Street Railway Co., 202 Mo. 576, 101 S. W. 32; Orcutt v. Century Building Co., 201 Mo. 424, 99 S. W. 1062; Evans v. Railroad, 222. Mo. 435, 121 S. W. 36; Gibler v. Railroad, 148 Mo. App. 475,128 S. W. 791; Beave v. Transit Co., 212 Mo. 331, 111 S. W, 52.] In the McGrath case, supra, it is said: “But even if it were a case to which, under proper pleadings, the doctrine (res ipsa loquitur) would apply, yet in this case specific acts of negligence are charged and not general negligence. In such cases where the plaintiff chooses in the petition to allege specific acts of negligence, the rule of law places the burden of proving such specific negligence upon the plaintiff, and a recovery, if had at all, must be upon the specific negligence pleaded.” [Citing cases.] In Roscoe v. Metropolitan Street Railway, supra, the court said: ‘ ‘ General allegations of negligence are permitted because plaintiff, not being familiar with the instrumentalities used, has no knowledge of the specific negligent act or acts occasioning the injury, and for a like reason the rule of presumptive negligence is indulged. But, if plaintiff by his petition is shown to be sufficiently advised of the exact negligent acts causing, or contributing to, his injury to plead them specifically, as in this case, then the reason for the doctrine of presumptive negligence has vanished. If he knows the negligent act, and he admits that he does so know it by his petition, then he must prove it, and if he recovers it must be upon the negligent acts pleaded and not otherwise.” And to like effect are numerous other decisions of the Supreme Court and the appellate courts of this State. It is true that, had plaintiff not pleaded specifically the negligence which he avers caused the injury, he would have been entitled to avail himself of a pre [661] sumption of negligence, throwing the burden upon the defendant to explain the unusual and extraordinary-movements of this car. The doctrine of res ipsa loquitur might have been invoked, had plaintiff’s petition been drawn alleging the occurrence and negligence generally. All that it was necessary for plaintiff to allege in this regard was that the defendant negligently caused and permitted the car to leave the track, at the point in question, and plunge into the building. It would then have devolved upon defendant to explain how it happened. The ground upon which the court below sustained the motion for a new trial does not appear. But that the action of the court in the first instance, in sustaining defendant’s demurrer to.the evidence, was proper, there can be no doubt. We have searched the record in vain for anything tending to prove the specific negligence alleged in the petition. In the face of the repeated rulings of our courts, we are unable to see how the trial court could have done otherwise. Nor do we perceive any ground upon which to sustain the later action of the court in granting a new trial. Plaintiff might have taken a nonsuit, but the record discloses no effort to do so; on the contrary, plaintiff allowed the peremptory instruction to be given, and the verdict of the jury to be returned in accordance therewith. If the action of the court in granting the new trial was upon any ground within its discretion, we would not be disposed to interfere with the exercise of such discretion on its part. But from the record before us we can see nothing to justify the court’s action in so doing. It follows that the judgment of the circuit court must be reversed, and the cause remanded with directions to reinstate the motion for a new trial, overrule it, and enter judgment for defendant on the verdict. It is so ordered. Reynolds, P. J., and Nortoni, J., concur.