Keeton v. St. Louis & Meramec River Railway Co. , 116 Mo. App. 281 ( 1905 )

GOODE, J.

(after stating the facts.) — The petition is said to state no cause of action because it does not characterize the alleged culpable acts of the defendant as either negligent or willful. This omission .is argued to prevent the pleading from stating a case for either a negligent or willful tort. It is true that until the petition was amended, the acts of the defendant were not denounced by the epithet “negligent;” but the stated facts constituted a breach of the defendant’s duty to Mrs. Keeton, which breach resulted in damage; and the petition imports a want of ordinary care on the part of the car crew. It is alleged that the car was stopped to receive her as a passenger and started while she was in the act of getting on and when by ordinary care, they could have seen the child in her arms. It is good pleading to state acts of a defendant which constitute a breach of duty, and aver they were negligently done. Negligence is the gist of the action, but there is authority for the proposition that where the acts alleged warrant the presumption of a negligent breach of duty, it is unnecessary to charge formally that they were negligently done. [2 Thompson, Negligence, p. 1246, sec. 26; Dyer v. Railroad, 34 Mo. 127; Wabash County v. Pearson, 120 Ind. 456; Louisville, etc., Ry. v. Wood, 113 Ind. 544; Louisville, etc., Ry. v. Thompson, 107 Ind. 442; Taylor v. Felsing, 63 Ill. App. 624; Clark v. Dyer, 81 Tex. 339.] In the case of Louisville, etc., Ry. v. Wood, a petition in all respects like the one before us was approved. The argument for the defendant is that the presumption of willfulness on the part of the carmen in starting prematurely may be as readily drawn from the facts stated as the presumption of negligence. The entire thought of the petition is negligence. To constitute a willful tort, the operatives must have been aware of Mrs. Keeton’s position and have started the car regardless of whether she would be hurt or not Such indifference to human life happens too rarely to be inferred from the facts alleged. The natural inference is that the car was started too soon through the conductor’s want of proper vigilance to see that all who were waiting to take passage were safely aboard. But starting the car while plaintiff was known to be in the act of boarding it would present a case for damages and, hence, on that view, a cause of action was stated. We rule, therefore, that the original petition sufficiently-charged a cause of action to be amended; though the better way is to characterize the breach of duty counted on, as negligence.

Complaint is made that defendant was refused a continuance after the petition was amended. Amending a pleading does not entitle the opposite party to a postponement of the trial of the cause as a matter of course. The court must be satisfied by affidavit, or otherwise, that in consequence of the amendment said party could not be ready for trial at the time previously appointed. [R. S. 1899, sec. 688; Colhoun v. Crawford, 50 Mo. 458; Keltenbaugh v. Railroad, 34 Mo. App. 147.] The facts do not call for a ruling that the circuit court abused its discretion in refusing a continuance.

The verdict is said to be excessive. We have set' forth in the statement the substance of the testimony regarding the extent of Mrs. Keeton’s injuries and sufferings. In our opinion the damages sustained are not su clearly in excess of the compensation to which she is entitled that this court ought to interfere with the verdict after it has received the approval of the trial court.

In arguing for the sufficiency of the petition, plaintiff’s counsel insist that many recent rulings on pleadings under the code have been so technical as to cause a celebrated jurist, now deceased, to turn in his grave. In answer defendant’s counsel declare they have no clairvoyant or psychical communication with the celebrated deceased and are, therefore, unable to refute the painful announcement concerning him, made by plaintiff’s counsel. The court is likewise without occult information on the subject and, as at present advised, must leave the point undetermined.

The judgment is affirmed.

All concur.