Clark v. Railroad. or to use any means or appliances of any kind or character to stop said backing train after discovering there was danger of a collision at said Sixth street with said street car on which plaintiff was motorneer as aforesaid, or after the agents or employees of the defendants in charge of said moving train might or could, in the proper exercise of due care and vigilance, have discovered the danger of a collision between said backing train and said street car in time to have employed an air-brake, emergency brake, or other appliances to stop said train and avoid a collision between said train and said street car, but on the contrary defendants then and there carelessly and negligently and by reason of the various acts of negligence herein charged against them, ran said train upon and over said Sixth street, and collided with and with great force and violence struck the car upon which plaintiff was so employed as motorneer, and caused the injuries hereinafter complained of." Defendant's contention is based upon two phrases found in plaintiff's exceedingly lengthy and verbose petition. At one place this phrase is found: "that while plaintiff was in the discharge of his duties and in the exercise of due, reasonable and ordinary care the defendants by their agents," etc.; and in another place this phrase: "and without any fault, carelessness or negligence on the part of the plaintiff and then and there said train of cars so managed by defendants as aforesaid struck plaintiff," etc. Defendant says that the use of these averments precludes the idea of negligence upon the part of plaintiff, and that the humanitarian rule presumes the previous negligence of the plaintiff. It is usually true that the humanitarian rule is only invoked in cases where the plaintiff has negligently placed himself in a position of peril. We mean by this that such are the cases in which we have been called upon to define and limit Clark v. Railroad. the application of the humanitarian or last clear chance rule. We will not digress in this case to discuss either the origin of the doctrine or its merits or demerits. The question we have here is a pure question of pleading. In this case, as in all others of like character, the plaintiff is suing to recover for injuries, alleged to have been received through the negligent acts of defendant. Those negligent acts are severable into two classes, (1) acts which are charged to have been the cause of the injury, although plaintiff was himself not negligent, and (2) negligently failing to stop the train after plaintiff was in a position of peril, whether his perilous position was occasioned by his negligence or not. Of course, the position of peril must be known to the defendant, or it must be shown that the defendant could have known of it in time to have averted the injury, if defendant had been in the exercise of reasonable care and prudence. But this last is beside the question before us. The petition in this case should be perhaps declared to be in one count, although that is not certain. Such we take to be its reasonable construction and what we have to say will be upon that theory. Upon that theory does the use of these phrases quoted supra preclude the application of the so-called humanitarian rule? We think not. The basis of the action is negligence. Negligence may grow out of divers acts. Some of these divers acts may constitute what the books denominate common law negligence, and some of them may make up what we call statutory negligence. After all it is negligence and negligent acts with which we are dealing. A number of negligent acts may go towards producing the same injury. Some may be statutory and some common law acts of negligence, but in the end we have only negligence. We are not convinced that this court has ever announced that different acts of negligence could not be charged in the single count of a petition. This has been Clark v. Railroad. continuously done in cases where there are acts of common law and acts of statutory or ordinary negligence. Several acts of negligence of the same general nature, all of which may be true, and either of which or all which may have caused the accident or injury may be placed in one count of a petition. [Haley v. Railroad, 197 Mo. 1. c. 23; Wacher v. Transit Co., 108 Mo. App. 645; Holdon v. Railroad, 108 Mo. App. 665; White v. Railroad, 202 Mo. 1. c. 560.] If so then we can see no reason why the act of negligence which brings the case within the so-called humanitarian rule, may not be alleged with other acts of negligence in the one count of the petition. The act of negligence authorizing a recovery under the humanitarian rule is one done after the plaintiff has placed himself in a position of peril, but it is none the less negligence and an act of negligence within the law as such is announced by the humanitarian rule. Defendant in the brief says: "Plaintiff's petition did not state a case under the humanitarian rule. This doctrine is bottomed upon, and presupposes contributory negligence upon the part of the plaintiff. In order to take advantage of that rule, a plaintiff must state a case consistent with the existence of contributory negligence upon his part." Reliance is placed upon the case of Nivert v. Railroad, 232 Mo. 626. Upon the question of pleading the opinion of WOODSON, P. J., in the Nivert case, is not an opinion of the court. There were only three judges sitting and upon this question two of them dissented from the views of the presiding judge. Nor is the Krehmeyer case, 220 Mo. 639, an authority. In that case, at page 672, it is indicated that four judges concur, thus leaving an opinion upon the question, but this is error. On page 673, begins the separate opinion of the present writer, in which a special concurrence in the result is shown, and for reasons other than the question of pleading discussed in the prin Clark v. Railroad. cipal opinion. Thus it will be seen that there is no opinion made in that case upon the question here presented, and discussed in those two cases. In Haley v. Railroad, supra, we said: "Several acts of negligence of the same nature, and all of which may be true and either of which or all of which together may have caused the accident, may be pleaded in one count." In that case the negligence calling for the invocation of the humanitarian rule was pleaded, as well as other acts of negligence. But after all the cause of action is to recover for negligence. This negligence may be made up of many distinct acts of negligence, and the plaintiff can plead all of the negligent acts, and recover upon either one which may be established by the evidence. In the Wacher case, supra, there were five distinct acts of negligence relied upon for recovery, thus: "1. In negligently managing the car. "2. In failing to keep watch for vehicles on the track in front of said car. "3. In failing to sound the bell, or in any other manner warning the plaintiff of the car's approach. "4. In failing to stop the car after the danger of striking plaintiff's wagon became apparent, or by the exercise of ordinary care would have become apparent. "5. By running the car at a high and dangerous rate of speed." It will be noted that the fourth counts upon the humanitarian rule. In the course of the opinion the court said: "The plaintiff's right of action was single and not collective of several distinct or separate causes of action and was properly pleaded in one count." In the recent case of White v. Railroad, supra, after reviewing our own cases, we said: "Furthermore, it will be found that, barring inconsistent and self-destructive averments, there have Clark v. Railroad. been presented to this court in the last half century hundreds of cases in which common law negligence and negligence made so by statute (or by some by-law of a city) have been pleaded in the same count and recovery has been allowed on proof of all or one or more of these specifications; and we cannot see why the different elements which blend together to produce the injury (so long as there is no discord between them) may not be so pleaded. The uniform practice has been to so plead them; no injury results therefrom to defendant that we can see; and there is no more confusion in blending them in one count than would come in setting out each specification of negligence in a separate count. "It may be said, then, that whether the negligence complained of arises from the violation of a common law duty, or a statutory duty, or an ordinance duty, is of no significance (that is, the mere origin of the duty violated is of no significance) so long as the violated duties produce the one injury and the one damage constituting the subject-matter of the suit. There was no error in overruling the motion because it commingled ordinance and common law negligence." Such too is the reason of the situation. When you plead facts such as will invoke the humanitarian rule, you but plead an act of negligence. Acts of negligence not inconsistent with each other may be pleaded in a single count. We are not of opinion that the facts pleaded as to such acts as invoked the humanitarian rule in this case are inconsistent with the other acts of negligence. The petition, whilst not as specific and direct as it might be upon the humanitarian rule, is broad enough and definite enough to permit a recovery upon that theory. In discussing the demurrer to the evidence, we shall therefore discuss it upon the theory that the humanitarian doctrine is in the case under the pleadings. |