* Headnotes 1. Carriers, 10 C.J. Sections 1421, 1425. 2. Carriers, 10 C.J. Sections 1381, 1426; Evidence, 23 C.J. Section 1826 (Anno). Defendant has appealed from a judgment in the sum of three hundred dollars ($300) obtained by plaintiff on trial before a jury for personal injuries received by plaintiff while a passenger on defendant's train. Respondent has not favored us with a brief. The petition in this case, after formal averments, charges that plaintiff, while riding in a passenger coach on defendant's train from St. Louis to Bourbon, Missouri, started to the toilet which was in the train on which plaintiff was riding, and that when he attempted to get in, he had to unfasten the coach door, put his hand on the inside of the door facing on the toilet entrance; the door to which was standing open, and that "defendant's agents and employees so negligently and carelessly handled the running of the train and managing of said train that said toilet door closed on plaintiff's hand and bruised and mutilated his hand so that blood-poison set in." It is further charged: "That defendant negligently and carelessly allowed said toilet door to stand open, which was dangerous when the train was swaying or rocking, as the door was closed on plaintiff's hand with great force and plaintiff was damaged thereby."
The answer was a general denial and a plea of contributory negligence. The evidence, which is very brief, indicates that plaintiff started for the toilet in the West end of the coach, the door to which was standing open, and that the coach door was open back over the entrance to the toilet and that he could not get in without pushing the coach door out; that he took hold of the coach door to push it out while the toilet door was swinging loose; that the train lunged around a curve and he grabbed the door jamb at the entrance to the toilet and the toilet *Page 310 door slammed shut, catching his fingers, causing the injury.
Plaintiff was permitted to testify over defendant's objection, that there was no felt or anything of that kind on the inside of the toilet door; also that there was no air service on that door. This is assigned as error. We believe the assignment of error well taken. No such negligence is pleaded. Plaintiff's petition charges negligence in only two particulars, namely: That defendant's agents and employees negligently and carelessly handled the running of the train and negligently and carelessly allowed the toilet door to stand open. The rule is well settled that where plaintiff chooses in his petition to base his cause of action upon certain specific acts of negligence, as in this case, the law places the burden of proving such negligence upon him and he may recover only upon the specific acts of negligence pleaded. [Pate v. Dumbauld, 250 S.W. 52; McManamee v. Mo. Pac. Ry. Co.,135 Mo. 440, 37 S.W. 119.]
Plaintiff was also permitted to testify as to the rate of speed the train was going. The testimony was competent, but plaintiff failed to prove the speed at which the train was run was negligent and under the view we take of the case, the evidence becomes immaterial.
Defendant assigned as error the refusal of the trial court to sustain defendant's demurrer to the evidence at the close of plaintiff's case. Defendant offered no evidence. We believe this question should be disposed of, although the cause might be reversed and remanded on the admission of improper evidence heretofore set out. The liability of a railroad for injury to a passenger caused by the sudden closing of car doors on such passenger's fingers has been considered in several cases. In Madden v. Mo. Pacific Railway Company, 50 Mo. App. 666, the plaintiff, while a passenger on defendant's train, arose from her seat when her station was called, but before she could get off, the train started again and then suddenly stopped on signal from a brakeman; she had at that time reached the door of the car and was standing *Page 311 with one foot on the threshold, the other on the platform; the sudden stoppage of the train caused her body to sway toward the door, against the jamb of which she placed her hand to steady herself; just at this time the car door closed and caught her fingers; she knew the door was not fastened and that it was open when she went through; that it was an ordinary door swung on hinges. The judgment was reversed on error in an instruction on the measure of damages. The court held, however, the sudden stoppage of the train, standing alone, was not negligence, but negligence in starting the train before plaintiff had time to alight was sufficient to make defendant liable. No negligence was charged against defendant in leaving the door open, so that it could swing shut, but the appellate court, in reversing the case, stated that it would be competent for the trial court to allow plaintiff to amend her statement so as to predicate negligence upon the act of defendant in leaving the door open so that it could swing shut.
In Daniels v. St. Louis, I.M. S.R. Co., 181 S.W. 599, recovery was had for injuries sustained by reason of the car door suddenly shutting on a passenger's fingers. The door was fastened back, but the sudden checking in the speed of the train, which was the negligence charged, caused the door to become released from the catch used to hold it open and close on plaintiff's hand.
In Creason v. St. Louis, I.M. S.R. Co., 149 Mo. App. 223, 130 S.W. 445, recovery was allowed where a passenger, in closing a door to a baggage car, which he had entered for the purpose of disposing of his baggage, was injured by pulling the door shut after him. The negligence alleged and proven was based on the fact that the door was so constructed that there was not sufficient room to pass the fingers between the door knob and the door casing, which condition caused the injury upon the closing of the door by plaintiff.
In the case of Anderson v. Kansas City Railway Company,292 Mo. 1, in which an opinion by the Kansas City Court of Appeals was adopted by our Supreme *Page 312 Court, the evidence disclosed that there was a vestibule in the center of an interurban car with swinging doors communicating with the back and forward compartments. One of the swinging doors, separating one of the compartments from the vestibule platform, was fastened back at right angles with the vestibule, by means of a spring attached to the bottom of the door and was kept open while the car was being operated; plaintiff's wife was a passenger and undertook to alight from the car, and as she reached the vestibule platform, placed her hand on the door jamb in order to steady herself and immediately the door closed, crushing her fingers. It was held that defendant was negligent under the doctrine of res ipsa loquitur.
In support of its demurrer appellant's counsel cites the case of Christensen v. Oregon Short Line R.R. Co., 35 Utah, 137, 99 P. 676. The facts in the Christensen case were somewhat similar to those in the Anderson case (supra). The latter case, in commenting on the Christensen case and another similar case uses this language: "In both cases there was no positive evidence that the door was pushed back where it would be securely fastened by the catch, if a good one. There was evidence in this case, already stated, that the defendant kept the door opened and caught back, all the time the car was in use. The conductor's station was in the vestibule. He stood practically at the door itself and it must have been under his eye practically all the time. It was held under the evidence in those cases that the inference of negligence, if any, arising from the closing of the door, was overcome as a matter of law by defendant's evidence. This is not the rule in this State. Under our decisions it is within the exclusive province of the jury to pass upon the credibility of the witnesses, and it may refuse to believe any witness or witnesses."
We do not believe, however, that any of the Missouri cases cited can be said to contain the same situation as developed in the case at bar. The doctrine of res ipsa *Page 313 loquitur is not applicable, for the reason plaintiff's petition charges two specific acts of negligence and moreover, the proof leaves nothing for the application of that doctrine. The cause of the slamming of the toilet door was definitely settled. There was no catch or stop that might be considered out of repair. We have here the undisputed facts that the toilet door was open, and that the speed of the train, in rounding a curve, caused it to close on plaintiff's hand. No charge is made that it was defendant's duty to provide a check or air service on the toilet door. Can it be said that the simple fact a toilet door on a passenger coach happens to be left open is an act of negligence of the railroad company, where an able-bodied adult passenger is injured by the sudden closing thereof as in this case?
It has been held that a carrier is not guilty of negligence in simply leaving a car door open whereby injury results to a passenger, as it is a matter of common knowledge that car doors are used, not only by the servants of the carrier, but by passengers, and that doors may be left open without exposing passengers to unusual dangers. [Hardwick v. Georgia, R. B. Kg. Co., 11 S.E. 832; Weinschenk v. N.Y., N.H. H.R. Co., 76 N.E. 632; Brehm v. Atchison, T. S.F.R. Co., 206 P. 868, 25 A.L.R. 1056; Merton v. Michigan C.R. Co., 137 N.W. 767.]
The Madden case (supra), decided by the St. Louis Court of Appeals, seems to hold to the view that the fact that the outside car door was left swinging open could be made the basis of negligence on the part of the railroad, but that point was not directly before the court in that case, and if it were, we think there is a distinction between the outside door to a car and the toilet door. The toilet is placed there under a mandatory law for the benefit and convenience of passengers. It is used by them continually while the train is in motion, and as a matter of common knowledge, such toilets are not permitted to be used except when the train is moving. *Page 314 If a railroad company is responsible for the door of a toilet being left open under such circumstances, then, as has been well said, it would require the presence of a man at each toilet door to see that passengers were not injured by the door being left ajar. This is manifestly absurd, and we do not think negligence can be predicated on such a hypothesis.
The judgment should be reversed. It is so ordered.
Cox, P.J., and Bradley, J., concur.