Cases Determined in the St. Louis and the Kansas City Courts of Appeals of the State of Missouri (Volume 125) (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1907. Excerpt: ... Bell v. Railroad. from which the presumption of negligence arises are found to exist the only door of escape from liability left open to the carrier is to show affirmatively that, notwithstanding the existence of such facts, the starting of the car was the result, not of its own negligence but of unavoidable accident, or of some cause beyond its control. The rule was correctly declared by the learned trial judge, but defendant argues that the instruction must be condemned for the reason that the hypothesis of facts on which the jury was required to apply it does not embrace all of the facts constitutive of the cause of action pleaded in the petition, and therefore, in effect, the instruction enlarged the scope of that cause by permitting a verdict to be based on acts of negligence not pleaded. That is to say, the jury as instructed, could have found for plaintiff in the face of a further finding that she attempted to alight from the car at the west line of Charlotte street while it was running at a rate of speed which made the attempt more or less dangerous, and therefore, the cause of action on which the verdict was based could have been an entirely different one from that pleaded. Had this instruction assumed to cover the whole case and had it directed a verdict on the finding of facts stated in the hypothesis, we would give sanction to the contention of defendant. It is well settled that an instruction of such character is erroneous if it fails to include all of the facts elemental to the cause of action pleaded. Hamilton v. Railway, 114 Mo. App. 504; Orcutt v. Century Building Co., 201 Mo. 424, 99 S. W. 1062; Waldhier v. Railway, 71 Mo. 514; Ely v. Railway, 77 Mo. 34; Feary v. Railway, 162 Mo. 75. But the instruction criticised does not assume to cove...