Conway v. Metropolitan Street Railway Co.

161 Mo. App. 501

Opinion

ELLISON, J.

Defendant operates aline of street ears in Kansas City, and plaintiff’s brother was riding plaintiff’s horse along one of such streets when the car struck and killed the horse. This action followed and plaintiff recovered in the trial court.

Defendant makes complaint of the petition and plaintiff makes excuses therefor, but as the cause is to be retried we assume all valid objection will be removed. The petition charges negligence and specifies in what it consisted, i. e., that defendant in approaching plaintiff’s brother ran its car at a dangerous, rapid and excessive rate of .speed and without warning to him. The only instruction on negligence was not confined to the negligence specified. On the contrary it was couched in such language as would permit a recovery for any negligence in the operation of the car, within or without the allegations. This was error. [Beave v. Transit Co., 212 Mo. 331; Detrich v. Metropolitan Street Ry. Co., 143 Mo. App. 176.]

The trial court properly denied a demurrer to the evidence offered by defendant.

The judgment is reversed and cause remanded.

All concur.