February 18, 1928.
1. PLEADING: General or Specific Negligence: Res Ipsa Loquitur. In a suit by an invitee injured in an attempt to get out of a passenger elevator at a floor landing, a petition alleging that "while said elevator was stopped at said floor and standing still there, and while the exit door was open, plaintiff attempted to alight from said elevator and pass to the second floor, and while plaintiff was in the act of so passing through said door, the elevator did move, and start in motion, and did descend, as a direct and proximate result of the negligence and carelessness of defendant, directly causing plaintiff to fall and be thrown down," does not by the words "did descend" enlarge and explain the prior words "did move, and start in motion," and does not plead specific negligence except as to the direction of the motion, but is a general allegation relating to the act causing her to fall, and therefore the doctrine of res ipsa loquitur is applicable to the facts.
2. ____: Proof: Variance: Immaterial: Objection. The petition charged that as plaintiff was leaving an elevator through the exit door at a floor landing, the elevator moved and descended, and plaintiff was thrown on the floor and injured. Defendant claims that the evidence shows that she was thrown to the floor as the elevator was ascending. Held, that the evidence tends to show that plaintiff was caused to fall by the movement of the elevator, and whether she fell as it was ascending or as it was descending did not affect defendant's liability, but the facts present only a case of a variance between allegation and proof, and not a total failure of proof, and no variance is material unless it is objected to, and misleads the adverse party, and its misleading effect is called to the attention of the trial court in the manner required by statute (Sec. 1272, R.S. 1919).
3. INSTRUCTION: Broader Than Pleading: General Negligence. The petition having pleaded general negligence in the movement and operation of a passenger elevator and plaintiff's consequent injury in alighting therefrom, she is entitled to an instruction telling the jury that it was the duty of defendant to exercise the highest degree of care practicable in the maintenance, operation and construction of said elevator. Allegations that she was a passenger on a passenger elevator, that it moved as she was alighting from it at a floor landing and that in consequence she was injured amounts to a plea of general negligence, authorizing plaintiff to rely upon the doctrine of res ipsa loquitur, and she makes a prima-facie case by proving these things, and thereby casts upon defendant the burden of rebutting negligence presumed from facts bringing the case within the doctrine.
4. ____: Construction of Elevator: Statement of Operator. The statement of the operator of the elevator at the time the plaintiff fell through the exit door onto the landing floor that "the car must be broke," being received without objection, whether admissible or not, is evidence of negligent maintenance, and authorized an instruction telling the jury that it was defendant's duty to exercise the highest degree of practicable care in the maintenance and construction of the elevator.
5. ____: Abstract Proposition: Non-Prejudicial. An instruction telling the jury that it is the duty of defendant to exercise the highest degree of care practicable in the maintenance, operation and construction of its passenger elevator, is an abstract proposition of law, but it is not prejudicial error where the petition states general negligence and defendant fails to produce evidence to explain the movement of the elevator by which plaintiff was injured and to absolve itself.
6. ____: General Negligence: Absolving for Specific Act. Where the petition charges general negligence and consequent injury to plaintiff while a passenger on an elevator, it is not error to refuse an instruction absolving defendant if the jury find that defendant was not negligent in one particular matter.
Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 720, p. 799, n. 87; 4 C.J., Section 3020, p. 1039, n. 12; Section 3199, p. 1171, n. 52. Carriers, 10 C.J., Section 1307, p. 870, n. 60; Section 1409, p. 1002, n. 23; Section 1423, p. 1019, n. 44; Section 1435, p. 1039, n. 71; Section 1452, p. 1063, n. 61; Section 1477, p. 1089, n. 8; Section 1479, p. 1095, n. 25. Trial, 38 Cyc., p. 1393, n. 41.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.
Taylor, Chasnoff Willson, John T. Sluggett, Jr., and James V. Frank for appellant.
(1) The court erred in refusing to sustain appellant's demurrers to the evidence at the close of respondent's case, and at the close of the whole case. (a) The amended petition pleaded specific negligence, which qualified, enlarged and explained the allegation that the elevator moved. Porter v. Railway, L.H. P. Co., 277 S.W. 915; Thompson v. Livery Co., 214 Mo. 487; McManamee v. Mo. Pac. Ry. Co., 135 Mo. 440. (b) There is a total failure of proof. Respondent alleged in her petition that she was caused to fall by the descent of the elevator, whereas the proof showed that respondent was caused to fall by the ascent of the elevator. Chitty v. Railway Co., 148 Mo. 64; Gurley v. Railway Co., 93 Mo. 450; Beave v. Transit Co., 212 Mo. 331; McGrath v. Transit Co., 197 Mo. 97; Bonnarens v. Lead Belt Ry. Co., 273 S.W. 1047; Zasemowich v. Am. Mfg. Co., 213 1192 S.W. 802; Waldhier v. Road Co., 71 Mo. 514. (2) Instruction 1 places a duty on appellant to exercise the highest degree of care in the maintenance and construction of the elevator. The petition contains no charge of negligent maintenance or construction. Kuhlman v. Water Co., 271 S.W. 797; Kessler v. Power Co., 283 S.W. 710; State ex rel. Coal Coke Co. v. Ellison, 195 S.W. 724; Yawitz v. Novak, 286 S.W. 66; Rosenzweig v. Wells, 273 S.W. 1073. (3) Instruction 1 is abstract, is not based upon the evidence or the pleading, and is misleading and general. Feldewerth v. Wabash Ry. Co., 181 Mo. App. 630; Smith v. Motor Service Co., 273 S.W. 745. (4) The court erred in refusing to give to the jury appellant's requested Instruction B. Respondent undertook to plead specific negligence and thereby assumed the burden of proof. Porter v. Railway, Light, Heat Power Co., 277 S.W. 915; Orcutt v. Century Building Co., 201 Mo. 424; McGrath v. Transit Co., 197 Mo. 97; Bonnarens v. Lead Belt Ry. Co., 273 S.W. 1047; Salzman v. Athletic Tea Co., 236 S.W. 908.
Mark Eagleton and Hensley, Allen Marsalek for respondent.
(1) The trial court did not err in refusing to sustain defendant's demurrers to the evidence at the close of plaintiff's case and at the close of the whole case. (a) The amended petition pleads no act of specific negligence. The allegation in the amended petition that the elevator "did move, and did start in motion, and did descend, as a direct and proximate result of negligence and carelessness of defendant," is an allegation of general negligence. Roscoe v. Street Ry. Co., 202 Mo. 576; Price v. Street Ry. Co., 220 Mo. 435; Pointer v. Const. Co., 269 Mo. 104; Bergfeld v. Railways Co., 285 Mo. 654; Carlson v. Wells, 276 S.W. 27; Porter v. Power Co., 277 S.W. 913; Brindley v. Wells, 308 Mo. 1; Kean v. Piano Co., 206 Mo. App. 170; Gibbons v. Wells, 293 S.W. 89. (b) There was no failure of proof of the cause of action alleged. Plaintiff did not allege that she was caused to fall merely by the descent of the elevator. She alleged, in the conjunctive, that the elevator, through defendant's negligence, "did move, and did start in motion and did descend, as a direct and proximate result of negligence and carelessness of defendant," causing plaintiff's injuries. And the proof clearly supports a recovery under this general allegation. Bergfeld v. Railways Co., 285 Mo. 654; Price v. Street Ry. Co., 220 Mo. 435; Meeker v. Union Electric Co., 279 Mo. 574. (2) There was no error in giving plaintiff's Instruction 1. Since the petition alleges negligence in general terms, making the case clearly one for the application of the res ipsa loquitur rule, when plaintiff made a prima-facie case by showing the unusual movements of the elevator and plaintiff's consequent injury, the burden devolved upon defendant to show that such unusual movements were occasioned by no negligence on its part, whether by way of faulty construction or maintenance, or negligent operation thereof. And it was proper to tell the jury the degree of care that defendant, under the law, was required to exercise as to all of these matters, under the circumstances. It was not a mere abstract declaration of law, but properly applied the law to the facts in evidence, was within both the pleadings and the evidence, and was in nowise misleading or prejudicial. Price v. Street Ry. Co., 220 Mo. 435; Lemon v. Chanslor, 68 Mo. 340; Mayne v. Railways Co., 287 Mo. 235; Brindley v. Wells, 308 Mo. 1; Furnish v. Mo. Pac. Ry. Co., 102 Mo. 438; Cool v. Peterson, 189 Mo. App. 717; Benjamin v. Street Ry. Co., 133 Mo. 274. (3) If plaintiff's Instruction 1 is subject to criticism (which respondent denies), the giving thereof could not have been harmful or prejudicial, since defendant adduced no evidence to explain the casualty consistent with due care on its part and to repel the presumption of negligence arising from the proof establishing plaintiff's prima-facie case; and consequently the judgment is not only for the right party, but is the only result that could, with propriety, have been reached in the case. Shinn v. Rys. Co., 248 Mo. 173; Nagel v. Railroad, 169 Mo. App. 284; Barkley v. Cemetery Assn., 153 Mo. 300. (4) The testimony of Mrs. Whitney as to the statement or exclamation of the elevator operator at the time of the casualty, that "the car must be broke," came in without objection, and was properly a part of the res gestae. It was cogent evidence of faulty construction or maintenance. Barz v. Yeast Co., 308 Mo. 288; Rosenweig v. Wells, 308 Mo. 617; Prior v. Payne, 304 Mo. 560. (5) There was no error in refusing to give defendant's requested Instruction B. Since plaintiff did not plead any specific act of negligence, plaintiff did not assume the burden of proof referred to in the instruction. On the contrary, after plaintiff made out her prima-facie case as she did, by showing the unusual movements of the elevator and plaintiff's consequent injury, the burden was cast upon defendant to explain the happening of the casualty consistent with due care on its part; and it would have been clearly error to have given this instruction. Price v. Street Ry. Co., 220 Mo. 435; Carlson v. Wells, 276 S.W. 29; Porter v. Rys. Co., 277 S.W. 913; Stauffer v. Railway Co., 243 Mo. 317; Mayne v. Railways Co., 287 Mo. 248; Hurck v. Railroad, 252 Mo. 39; Trowbridge v. Fleming, 269 S.W. 610; Stroud v. Cold Storage Co., 285 S.W. 165.
This is an action by an invitee to a department store to recover damages for injuries arising from a fall caused by the negligent starting of a passenger elevator. The jury returned a verdict in favor of plaintiff for nine thousand dollars, defendant appealing from the judgment entered thereon.
The evidence submitted on the part of plaintiff warrants the finding that the store operated by defendant was located at Sixth and Washington Avenue in the city of St. Louis. In the forenoon of August 29, 1923, plaintiff accompanied by Mrs. Anna Whitney visited defendant's store as a customer. They entered the elevator provided for the carriage of passengers on the ground floor and it ascended with them in it to the second floor. It came to a stop three or four inches below the second-floor landing level. The operator of the elevator, a negro boy, then opened the gate, saying, "Step up, please." Plaintiff testified that in attempting to step from the elevator she placed her left foot on the second-floor landing, her right foot remaining on the elevator floor, whereupon she fell out. On looking around she saw the elevator down the shaft about four feet below the second-floor landing, being able to observe in the car the upper portion only of Mrs. Whitney's body.
Mrs. Whitney stated that the elevator on ascending came to a stop about four inches below the second-floor landing. The elevator operator, on opening the gate, then told plaintiff to step out. As plaintiff was stepping out with one foot on the second-floor landing and the other on the elevator floor, the operator jerked the elevator up about four inches and then dropped it down. Plaintiff fell out as the car went up. Upon being asked what, if anything, the operator at that time said, she replied that he stated, "The car must be broke." She further stated that she did not see the boy operate the lever or any machinery of the car.
On behalf of defendant a witness, Miss Ketterer, stated in substance that she saw the elevator stopped at the second floor. Mrs. Whitney alighted first and as plaintiff was ready to step out, while one foot was on the second floor and the other on the elevator, the elevator dropped between six inches and a foot. Plaintiff did not fall to the floor. Plaintiff was helped out by Mrs. Whitney and a colored woman. Plaintiff on alighting said she was excited, then walked around and looked at things. On cross-examination she stated that she did not see the elevator drop, but when she looked it was down six inches to a foot. She saw plaintiff rub her knee. Another witness for defendant stated that plaintiff came to the fourth floor and reported that she became frightened as she was getting off the elevator and, upon the witness asking her if she was hurt, she replied, "No, I am not hurt; I just wanted to tell you about it." Other pertinent facts, if any, will be referred to later.
I. Defendant bases certain phases of its request for a reversal of the cause upon the predicate that the amended petition by the averment that the elevator "did descend" pleads Pleading: specific negligence. It is said that the averment General or qualifies, enlarges and explains the prior averments Specific that "said elevator did move and did start in Negligence. motion." The pertinent portion of the petition reads: ". . . While the said elevator was stopped at said floor and standing still there, and while the exit door of said elevator was open to permit persons to board and alight from said elevator, the plaintiff did attempt to alight from said elevator, and pass from the said elevator to the said second floor of said building, and that while plaintiff was in the act of so passing through the aforesaid door, the elevator did move, and start in motion, and did descend, as a direct and proximate result of negligence and carelessness of defendant, directly causing plaintiff to fall and be thrown down. . . ." We are unable to agree to the position taken by defendant. The petition merely states in effect that the elevator moved and in moving descended. If the petition had the effect of limiting the proof of movement to the descent of the elevator, still the averment "and did descend" referred to motion only. It could not be construed as stating the cause of the movement. Even if we could say that the averment was tantamount to alleging that the elevator was negligently permitted to move downward, yet such an allegation was not specific except as to direction. It was still a general allegation as to the act causing the fall of plaintiff. We think the petition pleads general negligence, thus rendering the doctrine res ipsa loquitur applicable on the facts.
II. It is contended that because the petition pleads that plaintiff was caused to fall by the descent of the elevator, whereas the proof establishes that she was caused to fall by its ascent, a total failure of proof results. Stated otherwise, it is said that the specific negligent act relied upon by Variance. respondent as a ground for recovery was expressly limited by the petition to the descent of the elevator. We do not think, however, that the result was tantamount to a total failure of proof, but that it was at most a variance. The bill of exceptions fails to show that plaintiff objected on the ground of variance to the evidence that plaintiff fell out of the elevator as it ascended. Even though we construe the allegation in the petition "and did descend" as limiting the scope of the prior words "the said elevator did move and did start in motion," we are not permitted to notice the alleged variance for defendant failed to object to it on that ground. Moreover, by their attitude toward the question during the trial, the parties treated the fall of plaintiff from the elevator as it ascended as though properly pleaded and as though an issue properly before the court.
Section 1272, Revised Statutes 1919, is in point. It reads: "No variance between the allegation in the pleading and the proof shall be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits; when it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, by affidavit showing in what respect he has been misled, and thereupon the court may order the pleadings to be amended upon such terms as shall be just."
Discussing the question, this court in Bammert v. Kenefick, 261 S.W. 78, say: "Here there was not only no affidavit; there was no objection to the proof. All those cases held that when in the proof there is a variance from the facts pleaded, if it amounts only to a variance and the proof goes in without the affidavit required by the statute, the variance shall not be material, and the trial court, in admitting the evidence, shall not be convicted of error. Under Section 1452, Revised Statutes 1919, if the cause of action `is unproved, not in some particulars only, but in its entire scope and meaning,' it will be deemed a failure of proof and not a mere variance."
In this case the proof tends to show that plaintiff fell from an elevator operated by defendant. Whether she fell as the elevator was ascending or descending would not under the facts affect defendant's liability, for the fact would remain that she was caused to fall by the movement of the elevator. Even if we construe the petition to the effect that plaintiff fell as the elevator was descending, the evidence that she fell from it as it was ascending is a matter of variance and not a total failure of proof. By failing to call the matter to the court's attention in the manner provided by the statute, thus affording an opportunity to amend the petition, defendant tried the case as though the omitted averment was in the petition and may not now complain of a variance. [Litton v. Railroad, 111 Mo. App. 140, 85 S.W. 978.]
III. Defendant complains of an instruction given at the instance of plaintiff, reading: "The court instructs the jury that it was the duty of the defendant to Instruction: exercise the highest degree of care General Negligence: practicable in the maintenance, operation Duty of Carrier. and construction of the elevator in question."
It is argued that, inasmuch as the petition contains no charge of negligent maintenance or construction, the instruction in placing on defendant the duty of exercising the highest degree of care in the maintenance and construction of the elevator was broader than the pleadings, permitting the jury to take into consideration matters outside the petition. It is evident, however, that plaintiff pleaded general negligence only, relying upon the doctrine res ipsa loquitur. By the showing that plaintiff was a passenger on the elevator, and that the elevator moved as she was alighting from it, causing her to fall and suffer injury, a prima-facie case was made, thereby casting on defendant the burden of rebutting negligence presumed from facts bringing the case within the doctrine. A prima-facie case having been made, it was incumbent upon defendant to offer evidence to rebut every form of negligence that may legitimately be inferred from the facts proven. Plaintiff, having made a prima-facie case, was not limited to the presumption of the negligent operation of the elevator, but was entitled to the benefit of the presumptions that the elevator was caused to move as the result of negligent maintenance or construction. These presumptions arising from the facts did not arbitrarily require the jury to return a verdict in favor of plaintiff, but they were substantive evidence of negligence which authorized the jury in its discretion to return such a verdict. Speaking of the burden of proof, this court in Bond v. Railroad, 288 S.W. 777, say: "Logically such a rule cannot be merely one of procedure; it must be regarded rather as one of substantive law, adopted for the protection of passengers. It has been followed so long that its enforcement must now be considered a part of the public policy of the State."
Notwithstanding defendant's contention, the record contains evidence of the negligent maintenance and construction of the elevator. Mrs. Whitney testified that the operator of the elevator said, "The car must be broke." Whether this Evidence. bit of evidence was admissible we need not decide, for it came in without objection and plaintiff is entitled to the benefit of it. It was of sufficient weight of itself upon which to base an instruction telling the jury it was the duty of defendant to exercise the highest degree of care practicable in the maintenance and construction of the elevator in question.
Defendant further contends that the instruction is error because it is abstract, misleading, general and not based upon the evidence or the pleadings. We think we have just Abstract answered the contention that it is not based on the Law. evidence or the pleadings. While the instruction is abstract and general, it is not misleading under the facts in this case. We have heretofore said that, plaintiff having made a prima-facie case under the doctrine res ipsa loquitur, the burden was on defendant to absolve itself. The defendant was then subject to the highest degree of care relative to the operation, maintenance and construction of the elevator. [McCardle v. Peck Dry Goods Co., 271 Mo. 111, 195 S.W. 1034.] While the instruction is abstract and under other facts might constitute error in the absence of further instructions to the jury, yet as defendant failed to offer testimony to explain the movement of the elevator and absolve itself, we do not think the instruction prejudicial error.
IV. The court refused an instruction offered by defendant, reading: "The court instructs the jury that the burden is upon the plaintiff to establish to your reasonable satisfaction that plaintiff was caused to fall or be thrown down by reason of negligence on the part of defendant, and unless this Failure has been so proved, you will find your verdict in favor to Prove of the defendant." Defendant charges error on the part One Act. of the trial court in refusing the instruction on the ground that the petition pleaded specific negligence. This court has a number of times held that an instruction of the import of the one in question was out of place, where the issue before the court was based on the doctrine res ipsa loquitur. [Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Bond v. Railroad, 288 S.W. 777.] The judgment is affirmed. Higbee and Henwood, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.