Cramer v. Springfield Traction Co. , 112 Mo. App. 350 ( 1905 )

BLAND, P. J.

(after stating the facts). —1. Defendant malíes the point, that the facts stated in the petition are repugnant and if the word ‘willfully’ is to' be rejected, in passing upon the sufficiency of the petition to support the judgment, then there is no issue of negligence pleaded. A petition alleging both willfulness and negligence as grounds for recovery, in Raming v. Railway, 157 Mo. l. c. 508, 57 S. W. 268, was characterized by Judge Sherwood as a felá de se. An act cannot be both careless and willful. Negligence is an unintentional act or omission. Willfulness is intentional, an act purposely done, not negligently or carelessly done or left undone, hence, as held by Judge Sherwood in the Raining case, evidence to prove negligence would negative willfullness and vice versa. But there was no evidence offered on the trial proving or tending to prove willfulness and the case was tried by both parties on the theory that plaintiffs injuries were caused by the negligence of the motorman in starting the car while she was in the act of alighting therefrom, therefore, we must do as the parties did on the trial, ignore the charge of willfulness, treat it as mere surplusage and look to the petition, with the word “willfully” eliminated, allegations to support the theory of negligence. [Knox County v. Goggin, 105 Mo. 183, 16 S. W. 684.] The rule of practice in such circumstances is thus stated by Robinson, J., in Gannon v. Gas Co., 145 Mo. l. c. 511: “It must be borne in mind, that it has likewise been a rule of long practice, and frequently asserted in this court, based upon the plainest principle of propriety and fairness, that a party will not be driven out of court merely from the fact that he or she has alleged more than has been proven, when the unproven allegations are shown to be unnecessary averments to authorize a recovery; nor will plaintiff’s action be denied merely because the testimony offered does not support certain averments in his or her petition when it does support other averments which are sufficient to authorize a recovery.” The same ruling is announced in Koopman v. Cahoon, 47 Mo. App. 357; Walker Bros. v. Railway, 68 Mo. App. 465, and in numerous other cases to be found in the Missouri reports.

Another salutary rule of practice, applicable here, is that parties are bound by the theory which they adopt on the trial of the case, and when they treat an issue as properly before the court, an objection, that such issue was not within the allegations of the petition, is waived. [Thorp v. Railway, 89 Mo. 650, 2 S. W. 3; Hilz v. Railway, 101 Mo. 36, 13 S. W. 946; Johnson-Brinkman Co. v. Bank, 116 Mo. l. c. 567, 22 S. W. 813; Barnard State Bank v. Fesler, 89 Mo. App. 216; Stalzer v. Dold Packing Co., 84 Mo. App. 573; Hackett v. Philadelphia Underwriters, 79 Mo. App. 16.] Bnt if the word “willfully” is eliminated from the petition, then there would be left this allegation of negligence: “That as she (plaintiff) was just alighting from said car, the motorman negligently and carelessly turned on the current of electricity, thereby causing said car to jerk instantly and start at a rapid rate of speed. Said jerk so sudden that it caused plaintiff to fall from the step of said car on to the brick pavement, injuring her as follows.” This statement is a specific allegation of negligence, provided there are other allegations in the petition showing that it was the motorman’s duty to hold the car a sufficient length of time to enable plaintiff to get off, or that the evidence shows he knew or could have known, by the exercise of due diligence, that she was in the act of alighting when he started the car. It is contended by defendant that neither of these facts are alleged or shown by the evidence) and for this reason plaintiff should have been nonsuited. The petition does not allege that plaintiff informed the motorman of her intention to get off the car at the junction nor is there any direct evidence that the motorman was apprised of her intention to' leave the car at that point, but the evidence conclusively shows that plaintiff got a transfer from the motorman and that passengers sometimes boarded the Springfield avenue cars at that point; and the motorman testified that passengers got on and off defendant’s cars at the junction, and he also testified that before starting his car he looked around the side of the car'to see if anyone was getting off or on.

From these facts in evidence, we think it clearly appears that it was the duty of the motorman to exercise due care to see that all passengers disembarking were safely on the street before he started his car, and that this duty was not discharged by merely waiting a sufficient length of time for a passenger to get off, for plaintiff’s relation to defendant was that of a passenger until she was safely off the car and its agents and employees were bound to exercise the utmost care in discharging her from the car. [O’Brien v. St. Louis Transit Co., — Mo. —, 84 S. W. 939; Fillingham v. St. Louis Transit Co., 102 Mo. App. 573, 77 S. W. 314; Lehner v. Railway, — Mo. —, 85 S. W. 110; Richmond Street Railway Co. v. Scott, 86 Va. 902.]

We think from what is stated in the petition in respect to the negligence of the motorman and other facts, the inference is fairly deducible that the' motorman knew, or by the exercise of due care could have known, that plaintiff was leaving the car when he turned the power on to move the car forward. We also think that plaintiff’s evidence made ont a prima facie case and that, notwithstanding the seeming preponderance of the evidence as a whole was on the side of the defendant, the case was one for the jury and that defendant’s instruction that plaintiff could not recover was properly denied.'

2. The instruction given for plaintiff is attacked as erroneous for the following reasons:

“First. . It entirely ignores every constituent element upon which liability of a carrier of passengers is predicated.

“Second. No issue of knowledge on part of defendant’s servant is submitted.

“Third. No issue as to whether car stopped a reasonable time is submitted.

“Fourth. The very issue of the case is assumed and the jury virtually told that the mere fact of an accident justified a verdict for plaintiff. Nor was this feature cured by instruction numbered 4.

“Fifth. It was not the duty of the defendant to use the greatest care to see that she was safely alighted, unless defendant knew or had reasonable grounds to believe she intended and was attempting to alight.

“Nor was it the duty of the defendant’s motorman to observe her conduct just because the car was standing still and just because she was approaching the rear of the car or about to get off, unless he did in fact observe her action or knew she was about to get off, etc. This knowledge, the basic fact of liability, is entirely omitted in the instruction.

“So it is not the law, that if he started the car while she was in the act of alighting the defendant is responsible. This declaration also ignores entirely the question of knowledge of the motorman.” ■

The instruction declared it to have been the absolute duty of the motorman to observe the plaintiff, to have seen her approaching the rear of the car and to have kept his eye on her until she was safely on the street before starting his car, notwithstanding the fact that he testified he had no knowledge of her intention to get off, and notwithstanding her negligence in failing to give him warning of her intention to get off.

In Yarnell v. Railway, 113 Mo. l. c. 587, Judge Sherwood, speaking of the duty of those in charge of a train of cars conveying passengers, owe to a passenger in getting off or on the cars, said: “The authorities are virtually unanimous in holding that unless knowledge of such a purpose is communicated to the company’s servants, that no duty arises to hold the train for a reasonable time in order that such purpose may be accomplished.

“In such cases the duty is dependent upon the knowledge of the carrier, and the negligence upon the non-performance of the ascertained duty; without the presence of these constituent elements, liability, which is but the legitimate result of a known and non-performed legal duty, cannot exist.” In this case an instruction given, which was very much like the one given for plaintiff in the case in hand, was condemned. The facts, however, in this case and the Yarnell case are not at all similar. Yarnell, in company with one Wall and his two daughters, went to the railroad depot in the nighttime to put his daughters on the train. Neither Yarnell or Wall intended to become passengers. Yarnell bought tickets for his daughters and when the train arrived, he and Wall accompanied them to the car. Wall took the valises belonging to the ladies, carried them into the car and when he had seen the ladies seated started back to get off the train, which started and moved twenty-five or thirty-five feet before he alighted. After alighting he walked back on the platform and found Yarnell decapitated. Wall had left Yarnell on the depot platform and there was no evidence that he had entered the car and none that the conductor had seen him or knew of his presence. The gravamen charged in the petition was that the train was not stopped a sufficient length of time to allow the passengers to alight, and what is said in the opinion must be construed in light of the fact that Yarnell was not a passenger and the conductor owed him no duty as such.

It is unquestionably the duty of a passenger on a street car, when he desires to get off at a particular place, to give notice of his intention to the person in charge of the car, in the usual and customary way of giving such notice, and if he fails to do so, he has no ground to charge negligence to the person in charge for failing to anticipate his desire and have the car stopped for him to get off; but it seems to us that where a street car stops at a regular stopping place where passengers are in the habit of getting on and off, and this fact is known to the person in charge of the car, the very act of stopping the car at such a place is an invitation to all on board who wish to get off to do so, and that it is the duty of the person in charge to exercise the same care toward one alighting as though he had given warning of his intention to get off the car at such place. The duty of the person in charge, it seems to us, in such circumstances, is analogous to the duty of the conductor on a steam railroad where his train stops at a regular station for the discharge and reception of passengers, that is, he is required to hold his car a reasonable and sufficient time to allow all who desire to get off to disembark in safety. [Cullar v. Railway, 84 Mo. App. 340.]

Judge Thompson, in volume 3, section 3518, of his work on negligence, states the duty as follows: “At the outset it is to be remembered that the person attempting to alight from the carrier’s vehicle is still a passenger until he has accomplished the act of alighting in safety, and that the street car company is a carrier of passengers and owes to the passenger attempting to alight that very high degree of care and attention which the law puts on it generally, to the end of promoting the safety of the passengers.” This paragraph is approvingly quoted by our Supreme Court in O’Brien v. Transit Company, supra.

Whether or not the motorman exercised this high degree of care toward the plaintiff, we think, in the circumstances of the case, was a question of fact for the jury. The instruction given practically took this question from the jury and declared as a matter of law that it was the duty of the motorman to have seen and observed the plaintiff until she reached the street in safety before 'starting the car. It was not his duty, under the circumstances, to especially observe the plaintiff, for she had not communicated to him her intention to get off, but to watch the rear platform where passengers were accustomed to get on and off and see that no one was in the act of getting on or off before starting his car. The .motorman testified that he did look around his car, that he saw no one getting on or off and then sounded his gong and started the car. Whether or not he was negligent in the performance of his duty, we -think should have been submitted to the jury.

There was no conductor on the car to look after passengers, and the failure to provide one is not alleged as a negligent omission of duty on the part of the defendant. The motorman was required to do double service. His station was on the front platform of the car where he was bound to remain for the purpose of using and controlling the appliances fo-r the operation and control of the car, and if, from his station, he made the best observation possible to see that no one was getting on or off the car, then sounded the gong as notice of his intention to start, we can see no room to declare as a matter of law that he was negligent in failing to see the plaintiff in the act of getting off.

3. A number of instructions asked by the defendant were refused but we do not deem it necessary to take them up for discussion. What we have said we think, will sufficiently indicate to counsel and the trial court our views of the law of the case to enable them to avoid error in instructing the jury on a retrial of the cause.

For error in the instructions given for plaintiff, the judgment is reversed and the cause remanded.

All concur.