Waldhier v. Hannibal & St. Joseph Railroad

Henry, J.

Plaintiff was employed in defendant’s yards at Kansas City, and, on the 5th day of June, 1872, while engaged in switching, was run over by a car of defendant, and received such injuries as necessitated the amputation of both of his legs. He obtained a judgment for $8,000, from which defendant has appealed. The petition alleged, that “ the defendant, by reason of its negligence and carelessness, plaintiff' was run against by one of defendant’s cars, thereby throwing plaintiff' upon the rail of the track of defendant; the said car of defendant then and there ran upon and over plaintiff by reason of the negligence and carelessness of the defendant. That plaintiff was then and there, by reason of the negligence of the defendant in having and using insufficient and defective machinery, and the carelessness and -negligence of defendant in running and managing its railroad- and cars, the plaintiff was broken and mutilated, as to both his legs, to such an extent, &c.”

1. action fob nkgligence: railroad: pleading. The above is a literal copy of the petition, as it appears in the transcript of the record. And, without indulging in any criticism upon its grammati- , . ,. , . , . ,, r -cal construction, we ask what is the cause ot action stated? Would any one, from what is alleged in this petition, infer that any defect in the rail of the track contributed to the injury which plaintiff sustained? The rail of the track is mentioned but once in the petition, and then as the object upon which plaintiff was thrown, and not as the cause of his fall. It is charged that defendant was negligent, “ in having aud using insufficient and defective machinery,” and, “in running and managing its railroad and cars,” but this is to be taken as explanatory of the statement of the cause of action previously alleged, and not as a statement of distinct and independent facts. It would be defective as the statement of a cause of action without the specific preceding allegations, and is, therefore, to be taken as explanatory of those allegations. In other words, the negligence of the company “in using defective machinery,” charged in the petition, must be confined to defective machinery used in running the cars which ran against the defendant. And that part of the allegation in relation to “ running and managing its railroad and cars” must be confined to negligence in running the train by which plaintiff was injured, without reference to the condition of the rails or the road, of which no complaint is made. A petition by an employee stating, without any specific facts, that plaintiff was injured in consequence of the negligence of a railroad company, in using defective machinery, and in running and managing its railroad and cars, would be fatally defective; and when such general •allegations are used in connection with a specific statement of a cause of action, they do not enable the plaintiff to recover for any cause of action, except that specifically stated.

2.-: variance between allegata ana probata. In Buffington v. The Atlantic and Pac. R. R. Co., 64 Mo. 246, the court said: “ The plaintiff grounds his action on an alleged defect in the construction of the engine, and he could only recover for an injury resulting from such defect. If the cause of injury was a defect in the track, and not a defectin the construction of the engine, he could not, without amending his petition, recover for a defect in the track.” That case is decisive of this. See also Capital Bank v. Armstrong, 62 Mo. 59; Chapman v. Callahan, 66 Mo. 299; Carson v. Cummings, 69 Mo. 325, and C. C. & I. C. R. W. Co. v. Troesch, 68 Ill. 545. There was evidence on the part of plaintiff* tending to prove that there was a broken frog at the place where plaintiff was thrown upon the track, which caused him to fall, and the court gave in compliance with plaintiff’s request the following instruction, with others, to • which defendant objected; “If you believe from all the facts and circumstances in the case, that on the 5th day of October, 1872, defendant had in use in its yards, at the city of Kansas, a frog, the plate on the guard of which was broken, and that the servant of defendant, whose duty it was to repair such broken plate, either knew or by the exercise of reasonable care and diligence might have known of the defective condition of such broken plate, then you are bound to find for the plaintiff, provided you further believe from all the facts and circumstances in the case, that plaintiff, while in the careful discharge of his duties, in attempting to cut off a car or cars, received the injuries complained of by reason of such defect.” Under the authorities above cited the court erred in giving this instruction. It authorized the jury to find a verdict for plaintiff on a cause of action not stated in his petition. The issue was not voluntarily made by defendant, but was forced upon him by the court, in admitting evidence in regard to the broken frog, and then instructing for plaintiff that the jury might find for plaintiff on account of the broken frog. Judgment reversed, and the cause remanded,

all concurring.