Rickaly v. O'Brien Boiler Works Co.

82 S.W. 963, 108 Mo. App. 130, 1904 Mo. App. LEXIS 19

• Court: Missouri Court of Appeals
• Decided: November 1, 1904
• Status: Published

Opinion

REYBURN, J.

(after stating the facts). — 1. By rule second of the rules adopted and in force by the circuit court of the city of St. Louis, it is provided that amended pleadings, under section 621, Revised Statutes 1899, shall he filed within three court days after the former pleading shall have been adjudged insufficient: in accordance with this rule in neither instance was defendant in default in its pleading and plaintiff was not entitled to judgment, against it in consequence. Plaintiff’s petition purported to set out á single, not several distinct causes of action and therefore ¡section 600 of the Revised Statutes invoked failed of application. A trial court is justified in exercising its own sound discretion in granting or, if it deems just, in withholding or even setting aside a judgment, by default and in absence of abuse of such authority, which is not manifest in this proceeding, its action in such regard should not be interfered with by an appellate tribunal.

2. As a general rule subject to exceptions within which the facts of this casualty do not fall, the doctrine of res ipsa loquitur does not obtain, where the relationship of master and servant subsists, and no presumption of negligence on the part of the employer is inferable from the mere occurrence of an accident, but it is an affirmative fact for the injured employee to establish that his employer has been guilty of negligence to fasten liability. LaBatt, Master & Servant, sec. 833, and authorities cited; Oglesby v. Railroad, 177 Mo. 272, 76 S. W. 623; Fuchs v. City, 167 Mo. 620, 67 S. W. 610; Nolan v. Shickle, 3 Mo. App. 300.

Where, as in instances of .carrier and passenger, the happening of an accident gives birth to a presumption of negligence, it is sufficient for the plaintiff to allege the accident and aver in general terms that it resulted from the defendant’s negligence and that the passenger was injured. Allen v. Transit Co., 81 S. W. 1142. But where no such presumption prevails, as in the case here'presented, the rules of pleading are to be enforced more severely and rigidly and it is requisite for the plaintiff to detail with sufficient particularity the particular facts of the accident and apprise the defendant of the specific act of negligence with which he is charged. It is also a general rule of pleading that where the facts to be alleged from their nature are peculiarly within the knowledge of the opposite party or may fairly be presumed to be within the knowledge of the opposite party, a degree of less certainty and particularity is required than in ordinary cases. 6 Ency. Pleading and Practice, 271; Railroad v. Jones, 83 Ala. 376; Goshen, etc., Co. v. Sears, 7 Conn. 86. We have therefore reached the conclusion That the third specification of negligence embraced in this amended petition sufficiently and substantially complied with the reasonable rules for government of the statement of such cause of action and that the averments to the effect that the driftpin was constructed of iron or steel, was defective in that it was improperly and unskillfully made and of defective material, shape and construction, rendering it liable to chip and splinter were sufficiently specific and adequately advised defendant of the facts constituting the right of action asserted, and presented a statement of a good causé of action on plaintiff’s behalf, upon which defendant should have joined issue, and the lower court therefore erred in sustaining the motion to make more definite and certain, levelled at this paragraph of the amended petition. The judgment is accordingly reversed and the cause remanded.

All concur.