Price v. Metropolitan Street Railway Co.

SEPABATE CONCURRING- OPINION.

VALLIANT, C. J.

The subjoined opinion written by me in division is filed herein as an expression of my views upon the case in this court.

I concur in all that my Brother Graves has written as the law of this case, but I do not agree that what he has said is in conflict with what was said in the case of Davidson v. Transit Co., 211 Mo. 320. That case and this are alike to this extent, to-wit, the injury in each case was caused by a collision of two street cars belonging to and operated by the same defendant, and it was so stated in each petition, and also that the *469collision was caused by tbe negligence of defendant’s servants operating the cars, but there was no further specification of negligence, that is, in neither case did the plaintiff specify in what respect the servants handling the cars were negligent; the statement was that the collision occurred by their negligence, that was all.

The charge of negligence in each case was in a sense general and in another sense specific; it was general in the sense that it did not specify the negligent act of the defendant’s servants in bringing about the collision, and it was specific in the sense that it did allege that the injury was caused by a collision of two cars operated by defendant. Therefore, reading what was said in the Davidson case, in the close connection in Which it was said, the court was entirely justified in saying that the charge of negligence in that petition was specific, because the court was comparing the allegation in the petition with the instruction given for the plaintiff. In that instruction there was no reference to a collision, and the jury were not required to find that there was a collision, but were authorized to find for the plaintiff if they should find that defendant was negligent in any respect whatever. After defining the degree of care that a carrier was required to exercise for the protection of a passenger the instruction said: “and the defendant is responsible for the injuries resulting to its passengers through the failure to exercise such care, and any failure on the part of the defendant to exercise a very high degree of care and diligence of a very prudent person in operating its cars would be such negligence as to make the defendant liable for any injury to the plaintiff resulting from such neglect.” So this court said: “A recovery in this action is sought upon the negligence which is alleged to consist in the defendant’s so carelessly and negligently operating its cars that the car in which plaintiff was riding was caused *470to collide with another car belonging to defendant upon one of the avenues of the city of St. Louis. In other words, specific negligence was alleged,” etc. Under the instruction in the Davidson case, though the plaintiff had failed to make any proof of a collision, and her evidence had tended to show that she had been thrown to the ground in attempting to alight from the car by a sudden starting of it, the jury were authorized to find a verdict for the plaintiff, but this court said, No, you have specified a collision between two cars and you can recover only on proof of that specification.

But in the case at bar there is no such instruction; the jury were authorized to find a verdict for the plaintiff only on proof of the negligence specified, to-wit, the collision. In that sense the charge was specific, although in pleading the negligence of the defendant’s servants in bringing about the collision the charge was general. Therefore, it is correct in this ease to say, in the connection in which the term is used, that the charge is general. In my opinion there is no conflict between what this court said in .the Davidson case and what Brother Graves now says in this case; therefore, I dissent from the order transferring the cause to the court In Banc.