GOODE, J.
(after stating the facts). — 1. Persons who operate elevators for the use of the general public [173] in stores and other buildings, are treated as common carriers of passengers and held to the exercise of the highest practicable care, and such as prudent men use in operating elevators, to prevent injury to passengers. [Lee v. Knapp, 155 Mo. 610, 56 S. W. 458; Becker v. Lincoln, etc. Co., 174 Mo. 246, 73 S. W. 581; Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035.] It is the duty of a passenger on an elevator, and, hence it was plaintiff’s duty, to use ordinary care to keep from getting hurt. [Becker case, loc. cit. 250.] The latter-proposition was declared by the trial court; but the defendants were not held responsible by the instructions, for slight negligence on the part of their employee in •charge of the elevator, as they should have been. This ■error affords defendants no ground of complaint, but is noticed because the case may be retried.
2. The petition contains an averment that the operator started the car before plaintiff’s dress was released. That averment is said to be no statement of an independent act of negligence or separate cause of action, because it is not charged that the elevator was •started negligently. Neither the word “negligently” nor any of similar import is used as descriptive of the •act of starting. Nevertheless, a cause of action might be founded on the starting of the elevator when the op•erator knew, or, by using due care, could have known, plaintiff’s dress was caught in the door. The operator : stood right by the door and had a good chance to observe that her dress was caught. It was his duty to use great ■care to have the passengers in safe positions before he moved the elevator. But the instructions authorized no verdict for the plaintiff on a finding that the elevator was carelessly started from ‘the landing; therefore, any fault in the allegation about starting is immaterial. If the negligence in that regard is to be relied on as a separate ground of recovery, the averment about it should ;be completed by the addition of the fact that the op[174] erator knew, or ought to have known, her dress was caught when he -started the machine.
3. Plaintiff’s pleading does not fit the facts disclosed by the evidence in all respects. The negligent acts mentioned in the petition as the cause of the casualty are, first; closing the door on plaintiff’s dress so-that it became entangled in the wheels of the elevator; second, carelessly leaving the wheels exposed, and, third, starting while plaintiff’s dress was fastened. The petition avers that by those acts plaintiff was thrown against the top and side of the elevator and injured.' Plaintiff was not injured in that way; but, as all the evidence shows, by her leg getting caught between the floor of the elevator and the edge of the ceiling of one of the stories of the building. Neither did exposed wheels have anything to do with, thé casualty; nor was there any proof that the wheels of the machinery were exposed.
Counsel for defendants insist the accident was due proximately to reversing the elevator, thereby causing it to ascend again; and not to its descent, or exposed wheels, or closing the door on plaintiff’s dress; further; that the petition says nothing about ’the reversal of the movement of the elevator and, therefore, plaintiff could not recover on her pleading, which specified only acts of negligence that in no way contributed to the accident. The conclusion is deduced that the court should have directed a verdict for the defendants. When analyzed the above argument is found to resolve itself into the proposition that there was a variance between the petition and the proof, though the point is not presented in that form. All the evidence regarding the accident went in without objection and the question of' variance was never raised during the trial in the way provided by the statutes. [R. S. 1899, -sec. 655.] The theory of defendants’ counsel is that the court had no right to instruct for a verdict for the plaintiff on a finding of the jury that the downward movement of the [175] elevator was negligently changed, because that fact is not counted on in the petition; and no* right to instruct for a judgment in her favor on a finding of negligence in any other particular, because changing the course of the elevator was shown conclusively to have been the sole proximate cause of the accident; that in this dilemma the only proper ruling was to deny a recovery. There was abundant testimony to show defendants’ employee carelessly closed the door on plaintiff’s dress and at the same moment started the elevator. Now negligence in that respect was well pleaded in the petition and, therefore, the proof did not entirely fail to sustain one of the causes of action, or rather grounds of recovery, alleged. Hence, if the court h,ad ordered a. verdict for the defendants on the theory of total failure of proof,, the ruling would have been erroneous.
Free access — add to your briefcase to read the full text and ask questions with AI
GOODE, J.
(after stating the facts). — 1. Persons who operate elevators for the use of the general public [173] in stores and other buildings, are treated as common carriers of passengers and held to the exercise of the highest practicable care, and such as prudent men use in operating elevators, to prevent injury to passengers. [Lee v. Knapp, 155 Mo. 610, 56 S. W. 458; Becker v. Lincoln, etc. Co., 174 Mo. 246, 73 S. W. 581; Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035.] It is the duty of a passenger on an elevator, and, hence it was plaintiff’s duty, to use ordinary care to keep from getting hurt. [Becker case, loc. cit. 250.] The latter-proposition was declared by the trial court; but the defendants were not held responsible by the instructions, for slight negligence on the part of their employee in •charge of the elevator, as they should have been. This ■error affords defendants no ground of complaint, but is noticed because the case may be retried.
2. The petition contains an averment that the operator started the car before plaintiff’s dress was released. That averment is said to be no statement of an independent act of negligence or separate cause of action, because it is not charged that the elevator was •started negligently. Neither the word “negligently” nor any of similar import is used as descriptive of the •act of starting. Nevertheless, a cause of action might be founded on the starting of the elevator when the op•erator knew, or, by using due care, could have known, plaintiff’s dress was caught in the door. The operator : stood right by the door and had a good chance to observe that her dress was caught. It was his duty to use great ■care to have the passengers in safe positions before he moved the elevator. But the instructions authorized no verdict for the plaintiff on a finding that the elevator was carelessly started from ‘the landing; therefore, any fault in the allegation about starting is immaterial. If the negligence in that regard is to be relied on as a separate ground of recovery, the averment about it should ;be completed by the addition of the fact that the op[174] erator knew, or ought to have known, her dress was caught when he -started the machine.
3. Plaintiff’s pleading does not fit the facts disclosed by the evidence in all respects. The negligent acts mentioned in the petition as the cause of the casualty are, first; closing the door on plaintiff’s dress so-that it became entangled in the wheels of the elevator; second, carelessly leaving the wheels exposed, and, third, starting while plaintiff’s dress was fastened. The petition avers that by those acts plaintiff was thrown against the top and side of the elevator and injured.' Plaintiff was not injured in that way; but, as all the evidence shows, by her leg getting caught between the floor of the elevator and the edge of the ceiling of one of the stories of the building. Neither did exposed wheels have anything to do with, thé casualty; nor was there any proof that the wheels of the machinery were exposed.
Counsel for defendants insist the accident was due proximately to reversing the elevator, thereby causing it to ascend again; and not to its descent, or exposed wheels, or closing the door on plaintiff’s dress; further; that the petition says nothing about ’the reversal of the movement of the elevator and, therefore, plaintiff could not recover on her pleading, which specified only acts of negligence that in no way contributed to the accident. The conclusion is deduced that the court should have directed a verdict for the defendants. When analyzed the above argument is found to resolve itself into the proposition that there was a variance between the petition and the proof, though the point is not presented in that form. All the evidence regarding the accident went in without objection and the question of' variance was never raised during the trial in the way provided by the statutes. [R. S. 1899, -sec. 655.] The theory of defendants’ counsel is that the court had no right to instruct for a verdict for the plaintiff on a finding of the jury that the downward movement of the [175] elevator was negligently changed, because that fact is not counted on in the petition; and no* right to instruct for a judgment in her favor on a finding of negligence in any other particular, because changing the course of the elevator was shown conclusively to have been the sole proximate cause of the accident; that in this dilemma the only proper ruling was to deny a recovery. There was abundant testimony to show defendants’ employee carelessly closed the door on plaintiff’s dress and at the same moment started the elevator. Now negligence in that respect was well pleaded in the petition and, therefore, the proof did not entirely fail to sustain one of the causes of action, or rather grounds of recovery, alleged. Hence, if the court h,ad ordered a. verdict for the defendants on the theory of total failure of proof,, the ruling would have been erroneous.
4. Granting there was evidence that starting the elevator upward was the proximate cause of the accident, an inquiry arises as to whether the court properly submitted it as a ground for a verdict for' the plaintiff when there was no allegation in the petition regarding the fact, but evidence about it had been received without objection. We discussed this question recently and held the statutes prescribed several lines of procedure in such a contingency, and that which line ought to be followed in a given case depends on the extent of the variance presented between the pleading and the proof. [Litton v. R. R., 111 Mo. App. 140, 85 S. W. Rep. 978.] The provisions of the code on this subject are clear and ample. If there is a total failure to sustain an allegation stating a distinct and independent ground of recovery, as where the fact proved negatives the one alleged, a failure of proof occurs instead of a variance, and the plaintiff’s case, in so far as it rests on the unproved allegation, must fail. [R. S. 1899, sec. 798.] A party cannot sue on one cause of action and recover on another. [Chitty v. R. R., 148 Mo. 64, 75, 49 S. W. 868.] If a variance occurs it may be either material or [176] immaterial. If immaterial, the trial court, in the exercise of its discretion, may direct the facts to be found according to the evidence, or order an immediate amendment without costs. [R. S. 1899, sec. 656.] The professional eye likes to see pleadings and proof agree exactly and an amendment is preferable, but not imperative. To contend, as is sometimes done, that in no case of variance can the court instruct on the evidence, is to ignore the very words of the section of the statute last cited, which expressly authorize the court to give instructions according to the evidence unless the variance is material.' What shall be deemed a material variance is prescribed in the code. It is one which had misled the opposing party to his prejudice. [R. S. 1899, sec. 655.] And in the code, too, is prescribed how it shall be made to appear a party has been misled. If the evidence does not correspond strictly to the allegations, it is the duty of the opposite party to satisfy the court by affidavit that the discrepancy is harmful to him; whereupon the court may order the pleading amended on' terms. [R. S. 1899, sec. 655,] Now, during a trial a party may object to evidence when it is offered, on the ground that it is irrelevant to the issues; or he may raise the question of variance after it is introduced. .If he does neither, and the discrepancy between the al-. legations and the evidence does not amount to a failure of proof, we fail to see how the trial court can be denied the right to instruct on the evidence without expunging certain provisions of the statutes. This doctrine has been declared repeatedly by the courts, though not without inconsistent decisions. [Fisher, etc., Co. v. Realty Co., 159 Mo. 562, 566, 62 S. W. 443; Heffernan v. Legion of Honor, 40 Mo. App. 605; Farmers Bank v. Assurance Co., 106 Mo. App. 114, 80 S. W. 299.] The real difficulty in practice is to say whether the evidence is so unlike the facts averred as to constitute a failure to prove the averments in their entire scope and meaning or merely constitutes a variance; and if there is any touchstone [177] for this problem we would gladly see it. Rulings on the ■question must be more or less arbitrary. In the present case the substance, scope and meaning of the cause •of action stated is that the plaintiff was hurt by the negligent handling of the elevator by defendants’ employee. Proof that the precise manner in which the hurt was inflicted was by reversing the elevator’s movement carelessly would establish the gist of the petition (i. e., negligent operation of the machine) but would vary from the particulars of the petition. We hold it would be a variance and not a failure of proof. Our chief reliance for this ruling is the recent case of Chouquette v. R. R., 152 Mo. 257, 53 S. W. 897, in which it was held that a variance and not a failure of proof occurred. The petition alleged the plaintiff was thrown off a car in a rush of the passengers to escape a live wire, and the testimony showed the plaintiff went to the platform and .jumped off. This general topic is well discussed in Pomeroy on Code Remedies (4 Ed.), sec. 447, et se'q. We collected some instructive authorities in Litton v. R. R., supra, and reasoned about the principles which ■ought to control the decision in cases presenting various ■aspects.
5. Our main difficulty has been to decide whether there was any room for the inference that changing the direction of the elevator caused the injury. No doubt ■plaintiff would not have been hurt in the manner she was if the course of the machine had not been changed. But that is a very different proposition from saying that ■changing the course was, legally speaking, the proximate cause. If the car had been simply stopped at the point Avhere it was turned upAvard, the mischief would have been averted. The operator swore it was impossible for him to stop it there without reversing the power— that is, throwing the lever back as far as it would go. No •expert opinion on the subject Avas introduced; and 'though the evidence is very impressive that nothing [178] short" of a complete change of movement would have caused a cessation of the downward movement in time to save plaintiff,' we are unwilling to pronounce on the question as one of law. The correct answer depends on the speed and momentum of the car and the quickness with which it responded to a proper effort to stop it. Concerning those matters there is no testimony, except the statement of the operator that he could not stop soon enough without reversing the movement. It is certain that if the elevator had descended three feet more, the top would have struck plaintiff while she was in a position to be killed by the blow. The testimony is that she would have been killed instantly. The situation was one of extreme peril and called for instantaneous action on the part of the operator. He had to decide and act in a flash; and probably adopted the most effective expedient. He was bound to exercise high care in the emergency, considering the trepidation he must have felt when he realized plaintiff’s peril.. In his own statement he said the only way he could save plaintiff from instant death, was quickly to reverse the elevator; but said, also, that “in going up the jolt was too quick and the engine shot up quicker than it ought to if run right.” In the Luckel case (177 Mo. loc. cit. 637) the Supreme Court held that although the passenger was caught in the door of the elevator by the operator’s negligence, the passenger would have escaped injury but for the negligent lowering of the elevator on him; which act, therefore, was the cause of the injury. It was shown that after that elevator had ascended two feet, it was stopped. When it stopped the plaintiff was still unhurt and could have been extricated from his position of peril easily. But the operator let the elevator down until the top caught him, crushing his ribs and otherwise injuring him, Two facts in that case are obvious: that lowering the elevator was a negligent act and that it alone was the cause of the injury. In this case the elevator had [179] not stopped with plaintiff safe, before the operator turned its course upward. We have concluded it was for the jury to decide whether the operator handled the elevator with reasonable prudence after he saw the plaintiff’s danger.
6. Though defendants’ counsel insist the reversal of the elevator was the proximate cause of the accident, they by no means concede that this action was a negligent one. Their position seems to be that, whether negligent or not, it was the sole cause of the injury and plaintiff could not go behind it for a ground of recovery. In our judgment this position involves a misconception of what is meant in the law of negligence by the proximate cause of an accident. The expression “proximate cause” frequently signifies, not that act in a chain of causation nearest to the injury complained of, but the culpable act nearest to the injury. [Wharton, Negligence, sec. 88, 138; Shearman & Redfield, Negligence (5 Ed.), sec. 36; Emporia v. Schmilding, 33 Kan. 485; Chacey v. Fargo, 5 N. D. 173; Pastene v. Adams, 49 Cal. 87; Scott v. Shepard, 2 W. Blacks. 892; s. c., 3 Wils. 403.] When a person’s conduct is negligent and brings another person into a position where damage is the natural outcome, the introduction of a non-culpable act between the original negligence and its mischievous result, will not prevent the original negligence from being treated as the proximate cause of the mischief, if it contributed to produce it, even though the intervening-act was the immediate cause. This principle is illustrated by the cases we have cited. The incidents in one or more of them were the culpable acts of a municipality in letting a board in a sidewalk be loose, whereby injury resulted to a pedestrian by his companion stepping on one end of the board and causing it to rise. Stepping on the end of the board was the immediate, but not the proximate, cause of the accident. Now, in the present case it is palpable that someone, by catching plaintiff’s dress in the door, or starting the elevator [180] while it was caught, had put her in danger before the elevator was reversed; and unless the reversal itself, or the way it was done, was a careless act and injured the plaintiff, the law will recur to the previous carelessness as the proximate cause of the injury. And this is reasonable; because if there was no negligence in the return of the elevator, the circumstances considered, then every subsequent incident, including the injury, was the natural result of the first careless act. But if the operator by catching plaintiff’s dress in the door, or moving the elevator when he should have known it was caught, had put plaintiff into a position where he could not avoid hurting her, defendants ought not to escape liability because some subsequent careful act of the operator actually inflicted the hurt. Therefore we reject the conclusion that the upward movement of the elevator was the proximate cause of the accident, no matter whether it was careful or careless.
7. Plaintiff herself could have been to blame for her injury in one particular only — that is, in not exercising ordinary care to keep her dress from catching in the door. Even if she was to blame for that circumstance, it was the duty of the operator to use care to see that she and the other passengers were safely placed before he started the elevator; and the defendants are responsible if he was remiss in the performance of that duty. Our conclusion regarding the possible causes of the accident is that the plaintif alone may have caused it by catching her dress; that the operator may have caused it either by closing the door on plaintiff’s dress or starting the elevator when he knew, or ought to have known, her dress was caught; and that possibly he caused it by handling the elevator carelessly after discovering plaintiff’s danger. As indicated above, we think the latter a weak theory; for though absolutely perfect management of the elevator might have averted the accident, it was hardly possible to manage it. perfectly in the excitement and urgency of the moment. [181] If the operator carelessly closed the door on her dress, that incident may be treated as the proximate canse of the injury; for everything done after he closed the door would have proved harmless if her dress had been free. Neither starting the elevator down nor returning again, would have injured her any more than it did the eight or more other persons in the car. Moreover, the operator swore he closed the door and started the car at the same instant; and if her dress was caught by his action, all that followed could have been anticipated as a necessary consequence. If the plaintiff was not to blame for the catching of her dress, she was not to blame at all and no negligence of hers contributed to her injury.-
8. The seventh instruction given for the plaintiff correctly says that by the term “contributory negligence” is meant, in this case, “any negligence on the part of the plaintiff directly contributing to her injury.” Immediately after that definition, the instruction declares that- “such negligence on her part” (that is to say, negligence on her part which directly contributed to the injury) “will not bar her right to recover, if defendants’ agent or servant, after discovering the danger in which plaintiff was placed by her negligence, might have, by the exercise of ordinary care, prevented the injury to plaintiff.” Taken as a whole that instruction was apt to impart an erroneous opinion about the effect on plaintiff’s right to a verdict of a finding that she had been guilty of contributory negligence. It was misleading. • The last'clause was erroneous in requiring no more of the operator than ordinary care to save plaintiff after he discovered her peril. He was bound to fise high care. Besides, in the circumstances shown, he might have been remiss, so as to lay his employers liable, by not discovering plaintiff’s peril. As she could have put herself in peril in no way except by catching her dress, the instruction on this branch of the case will instruct the jury best by telling them that although they find plaintiff herself was to blame for her dress catching [182] in the door, yet if they also find the operator knew, or by. exercising the high degree of care incumbent on him could have known, it was caught, in time to prevent the injury to plaintiff, defendants are liable. The first part of the instruction authorized a verdict for plaintiff in a given contingency, though she was found guilty of negligence which directly contributed to her injury. We deem that charge erroneous, as no evil feeling on the part of the operator was shown. It is not easy to refute the proposition that one who carelessly gets himself into a situation of danger and unwittingly remains there until hurt,. contributes to his injury. But the initial negligence of a, party, which brought him within range of harm from what another was doing, is regarded often as having only remotely contributed to the accident;' because none would have happened'if the injuring party had done his duty. The principle of liability is that the duty of using caution not to inflict injury is owed to careless as well as careful people. I have no more right negligently to hurt a man who has carelessly gone where I can hurt him, than I have to kill a man intentionally who is trying to kill himself. In situations where the rule in question is applied, the conduct of 'the party exposed to risk does not release others from the duty of being careful of his safety, or lower the standard, or lessen the quantity of care required. But if his own conduct in exposing himself to peril by the act of another, or failing to avoid peril when he could, contributes to the injury he received and the other’s negligence (not recklessness or willfulness) contributes also, the latter is not answerable. He is not answerable because the law refuses to compare the negligence of the parties or to attempt an apportionment of their respective' influences in bringing about the result; not because defendant was released from the duty to be careful by the plaintiff’s neglect. It is not contended in this case that the elevator operator was reckless in conduct- or guilty of wilful wrong. Therefore plain[183] tiff’s right to recover notwithstanding her own negligence, may be determined most satisfactorily by answering the question of whether her negligence directly contributed to cause the accident — that is, was the proximate cause. Any negligence of which she was guilty, will not debar her unless it contributed to the injury; and it did not contribute, legally speaking (directly contribute) if subsequent to it the operator had a last clear chance to prevent harm by exercising high care. This doctrine finds application to cases wherein it appears the defendant saw the plaintiff’s peril in time to save him and to those wherein, the circumstances considered, the defendant ought to have seen the peril in time. Hence, we hold in this case that if the operator saw, or by high vigilance could have seen plaintiff’s dress was caught in time to prevent the harmful result, the defendants are answerable. There is an antinomy between the doctrines of contributory negligence and of discovered peril (or the last clear chance) that has resisted all attempts to formulate a theory adequate to indicate clearly in borderline cases which of the two doctrines should control the decision. Yet students of the subject realize that there are circumstances under which an injured party should recover damages, notwithstanding the fact that his own want of care had something to do with bringing about the injury by affording the opportunity for it to occur. The case in hand contains testimony to establish facts which the last clear chance rule fits. The vital facts in this connection are that the operator was charged with the duty to exercise unusual vigilance for plaintiff’s safety and if she was guilty of negligent conduct which endangered her, such conduct did not continue until the instant her leg was broken nor could she, by her own exertions, escape the danger in which she had placed herself. Any negligence on her part must have occurred, if at all, before the elevator began to descend. By catching her dress, she was put in a position of danger; and if she [184] caused it to catch, she put herself in that position. But it is a reasonable inference that the operator, by using, vigilance to see that his passengers were properly placed before starting, might have averted harm to the plaintiff from what he was doing (running the elevator) though her dress was caught. Had he looked to see if she was safe and, seeing she was not, held the elevator motionless until her dress was detached, all, would have been well. ' And if this precaution could have been taken by the operator, then plainly plaintiff’s negligence only remotely and not directly contributed to her injury, and it was unnecessary to tell the jury she might recover, if they found it directly contributed. The instruction should have presented in a concrete way, the rule of law regarding the right of a party who has carelessly exposed himself to peril to recover for an injury needlessly inflicted by another person. The general and abstract character of the first part of the seventh instruction went beyond the necessities of the case and was incompatible with the defense of contributory negligence.
9. The first instruction given for the plaintiff held the defendants responsible if plaintiff’s injury was caused by any failure on their part to exercise care and precaution in managing the elevator — an erroneous view. Not any failure of duty by the defendants, but only such as there was proof of, should have been submitted to the jury as ground for a verdict in plaintiff’s favor. Different acts of negligence were alleged in the petition and some of these were supported by evidence. Plaintiff’s right to recover depends on satisfying the jury that defendants were guilty of one or more of those acts. [Allen v. Transit Co., 81 S. W. 1142; Lesser v. R. R., 85 Mo. App. 326.]
10. Error is assigned because of the exclusion of the letter defendants wrote plaintiff while she was in the hospital. . The defendants received no1 reply to the. letter in question and did not seek one or pursue the [185] matter further. They say that as plaintiff remained at the hospital at their expense after receiving the letter,, she must be held to have accepted the proposition submitted. This proposition was that the defendants-, would continue to pay for her board and attention at the hospital provided she assured them she would make-no additional demand on account of her injury. Arguing that plaintiff’s conduct amounted to a tacit acceptance of their offer, defendants’ counsel present the supposed acceptance as a settlement of the present cause-of action. We will say no more on this point than that in our judgment there is no ground for the conclusion, that plaintiff accepted the proposition or in any way released her claim. She made no response to the letter and defendants could not rest with the negotiation in that state and insist afterwards on a constructive assent by-plaintiff. Besides, all the evidence went to show she-was a minor when she left the hospital .and incapable-of entering into an accord and satisfaction. The court, committed no error in excluding the letter.
The judgment is reversed and the cause remanded..
All concur.