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When analyzed the above argument is found court instruct on the evidence, is to ignore to resolve itself into the proposition that the very words of the section of the statute there was a variance between the petition last cited, which expressly authorize the and the proof, though the point is not pre- court to give instructions according to the sented in that form. All the evidence regard- evidence unless the variance is material. ing the accident went in without objection, What shall be deemed a material variance is and the question of variance was never rais- prescribed in the Code. It is one which has ed during the trial in the way provided by misled the opposing party to his prejudice. the statutes (Rev. St. 1899, 8 655). The the- Rev. St. 1899, 8 655. And in the Code, too, is ory of defendants' counsel is that the court prescribed how it shall be made to appear a had no right to instruct for a verdict for the party has been misled. If the evidence does plaintiff on a finding of the jury that the not correspond strictly to the allegations, it downward movement of the elevator was neg. is the duty of the opposite party to satisfy ligently changed, because that fact is not the court by affidavit that the discrepancy is counted on in the petition, and no right to in- harmful to him, whereupon the court may struct for a judgment in her favor on a finding order the pleading amended on terms. Rev. of negligence in any other particular, because St. 1899, $ 655. Now, during a trial a party changing the course of the elevator was shown may object to evidence when it is offered, on conclusively to have been the sole proximate the ground that it is irrelevant to the issues, cause of the accident; that in this dilemma the or he may raise the question of variance after 2 only proper ruling was to deny a recovery. it is introduced. If he does neither, and the !! There was abundant testimony to show de- discrepancy between the allegations and the fendants' employé carelessly closed the door evidence does not amount to a failure of on plaintiff's dress, and at the same moment proof, we fail to see how the trial court can started the elevator. Now, negligence in that be denied the right to instruct on the evirespect was well pleaded in the petition, and dence, without expunging certain provisions therefore the proof did not entirely fail to of the statutes. This doctrine has been desustain one of the causes of action, or, rath- clared repeatedly by the courts, though not only er, grounds of recovery, alleged. Hence, if without inconsistent decisions. Fisher, etc., Co. the court had ordered a verdict for the de- v. Realty Co., 159 Mo. 562, 566, 62 S. W. 443; fendants on the theory of total failure of Heffernan v. Legion of Honor, 40 Mo. App. proof, it would have been erroneous.

605; Farmers' Bank v. Assurance Co., 106 Mo. 4. Granting there was evidence that start- App. 114, 80 S. W. 299. The real difficulty in ing the elevator upward was the proximate practice is to say whether the evidence is so cause of the accident, an inquiry arises as to unlike the facts averred as to constitute a whether the court properly submitted it as a failure to prove the averments in their entire ground for a verdict for the plaintiff, when scope and meaning, or merely constitues a vathere was no allegation in the petition re. riance; and, if there is any touchstone for garding the fact, but evidence about it had this problem, we would gladly see it. Rulbeen received without objection. We discus- ings on the question must be more or less sed this question recently, and held that the arbitrary. In the present case the substance, statutes prescribe several lines of procedure scope, and meaning of the cause of action in such a contingency, and that which line stated are that the plaintiff was hurt by the ought to be followed in a given case depends negligent handling of the elevator by defendon the extent of the variance presented be ants' employé. Proof that the precise mantween the pleading and the proof. Litton v. ner in which the hurt was inflicted was by R. R. (Mo. App.) 85 S. W. 978. The provi- reversing the elevator's movement carelessly sions of the Code on this subject are clear would establish the gist of the petition (i. e., and ample. If there is a total failure to sus- negligent operation of the machine), but would tain an allegation stating a distinct and in- vary from the particulars of the petition. dependent ground of recovery, as where the We hold it would be a variance, and not a fact proved negatives the one alleged, a fail- failure of proof. Our chief reliance for this ure of proof occurs, instead of a variance, and ruling is the recent case of Chouquette v. R. the plaintiff's case, in so far as it rests on R., 152 Mo, 257, 53 S. W. 897, in which it was the unproved allegation, must fail. Rev. St. held that a variance, and not a failure of 1899, 8 798. A party cannot sue on one cause proof, occurred. The petition alleged the of action and recover on another. Chitty v. plaintiff was thrown off a car in a rush of R. R., 148 Mo. 64, 75, 49 S. W. 868. If a va- the passengers to escape a live wire, and the riance occurs, it may be either material or testimony showed the plaintiff went to the immaterial. If immaterial, the trial court, in platform and jumped off. This general topic the exercise of its discretion, may direct the is well discussed in Pomeroy on Code Remefacts to be found according to the evidence dies (4th Ed.) $ 447 et seq. We collected some or order an immediate amendment without instructive authorities in Litton v. R. R., sucosts. Rev. St. 1899, 8 656. The professional pra, and reasoned about the principles which eye likes to see pleadings and proof agree ex- ought to control the decision in cases presentactly, and an amendment is preferable, but ing various aspects. not imperative, To contend, as is sometimes 5. Our main difficulty has been to decide done, that in no case of variance can the whether there was any room for the infer

Edge that changing the direction of the elevator caused the injury. No doubt, plaintiff rould not have been hurt in the manner she Tas if the course of the machine had not been cbanged. But that is a very different peoposition from saying that changing the course was, legally speaking, the proximate ause. If the car had been simply stopped at the point where it was turned upward, the rischief 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 . No expert opinion on the subject was introduced, and, though the evidence is very impressive that nothing short of a complete change of movement would have caused a cessation of the downward movement in time to sare plaintiff, we are unwilling to pronounce op the question as one of law. The correct answer depends on the speed and momentum of the car, and the quickness with which it Tesponded to a proper effort to stop it. Concraing those matters there is no testimony, except the statement of the operator that he could not stop soon enough without reversing tbe movement. It is certain that, if the tlerator 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 Lost effective expedient. He was bound to Ejercise bigb care in the emergency, considering tbe trepidation he must have felt when be realized plaintiff's peril. In his own statebent he said the only way he could save plaintiff from instant death was quickly to Teterse 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, 76 S. W. 1035, the Supreme Court held that, although the passenger Tas caught in the door of the elevator by the merator's negligence, the passenger would bare 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 plaintif was still unburt, and could have been extricated from his position of peril easily. But the operator let the elevator Con until the top caught him, crushing his ribs and otherwise injuring him. Two facts b that case are obvious: That lowering the clerator was a negligent act, and that it toe was the cause of the injury. In this ease the elevator had not stopped, with plain57 safe, before the operator turned its course ward. We have concluded it was for the Try to decide whether the operator handled tise elerator with reasonable prudence after be saw 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 invoives 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, &$ 88, 138; Shearman & Redfield, Negligence (5th Ed.) § 36; Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; Chacey v. Fargo, 5 N. D. 173, 64 N. W. 932; Pastene V. Adams, 49 Cal. 87; Scott v. Shepherd, 2 W. Blackst. 892, &. C. 3 Wils. 403. When a person's couduct is negligent, and brings another person into a position where damage is the natural outcome, the introduction of a nonculpable 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 some one, by catching plaintiff's dress in the door, or starting the elevator 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;


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that is, in not exercising ordinary care to her dress, the instruction on this branch of keep her dress from catching in the door. the case will instruct the jury best by telling Even if she was to blame for that circum- them that, although they find plaintiff herself stance, it was the duty of the operator to was to blame for her dress catching in the use care to see that she and the other pas- door, yet if they also find the operator knew, sengers were safely placed before he started or by exercising the high degree of care in. the elevator; and the defendants are respon

cumbent on him could have known, it was sible if he was remiss in the performance caught, in time to prevent the injury to of that duty. Our conclusion regarding the plaintiff, defendants are liable. The first part possible causes of the accident is that the of the instruction authorized a verdict for plaintiff alone may have caused it by catch- plaintiff in a given contingency, though she ing her dress; that the operator may have was found guilty of negligence which directly caused it either by closing the door on contributed to her injury. We deem that plaintiff's dress, or starting the elevator charge erroneous, as no evil feeling on the when he knew or ought to have known her part of the operator was shown. It is not dress was caught; and that possibly he easy to refute the proposition that one who caused it by handling the elevator carelessly carelessly gets himself into a situation of after discovering plaintiff's danger. As in- danger, and unwittingly remains there until dicated above, we think the latter a weak hurt, contributes to his injury. But the ini. theory, for, though absolutely perfect man- tial negligence of a party, which brought him agement of the elevator might have averted within range of harm from what another the accident, it was hardly possible to man- was doing, is regarded often as having only age it perfectly in the excitement and ur- remotely contributed to the accident, because gency of the moment. If the operator care- none would have happened if the injuring lessly closed the door on her dress, that in- party had done his duty. The principle of cident may be treated as the proximate liability is that the duty of using caution not cause of the injury, for everything done to inflict injury is owed to careless as well after be closed the door would have proved as careful people. I have no more right neg. harmless if her dress had been free. Neither ligently to hurt a man who has carelessly starting the elevator down, nor returning gone where I can hurt him than I have to again, would have injured her any more kill a man intentionally who is trying to kill than it did the eight or more other persons himself. In situations where the rule in in the car. Moreover, the operator swore he question is applied, the conduct of the party closed the door and started the car at the exposed to risk does not release others from same instant, and, if her dress was caught the duty of being careful of his safety, nor by his action, all that followed could have lower the standard or lessen the quantity of been anticipated as a necessary consequence. care required. But if his own conduct in exIf the plaintiff was not to blame for the posing himself to peril by the act of another, catching of her dress, she was not to blame or failing to avoid peril when he could, conat all, and no negligence of hers contributed tributes to the injury he received, and the to her injury.

other's negligence (not recklessness or will8. The seventh instruction given for the fulness) contributes also, the latter is not an. plaintiff correctly says that by the term "con- swerable. He is not answerable, because the tributory negligence" is meant, in this case, law refuses to compare the negligence of the "any negligence on the part of the plaintiff parties, or to attempt an apportionment of directly contributing to her injury.” Imme- their respective influences in bringing about diately after that definition the instruction the result, not because the defendant was redeclares that "such negligence on her part leased from the duty to be careful by the [that is to say, negligence on her part which plaintiff's neglect. It is not contended in this directly contributed to the injury) will not case that the elevator operator was reckless bar her right to recover if defendants' agent in conduct or guilty of willful wrong. There or servant, after discovering the danger in fore plaintiff's right to recover notwithstandwhich plaintiff was placed by her negligence, ing her own negligence may be determined might have, by the exercise of ordinary care, most satisfactorily by answering the question prevented the injury to plaintiff." Taken as of whether her negligence directly contribua whole, that instruction was apt to impart ted to cause the accident; that is, was the an erroneous opinion about the effect on proximate cause. Any negligence of which plaintiff's right to a verdict of a finding that she was guilty will not debar her unless it she had been guilty of contributory negli- | contributed to the injury; and it did not congence. It was misleading. The last clause tribute, legally speaking (directly contribute), was erroneous in requiring no more of the if subsequent to it the operator had a last operator than ordinary care to save plaintiff clear chance to prevent harm by exercising after he discovered her peril. He was bound high care. The doctrine finds application to to use bigh care. Besides, in the circumstan- cases wherein it appears the defendant saw ces shown, he might have been remiss, so as the plaintiff's peril in time to save him, and to lay his employers liable, by not discover- to those wherein, the circumstances considing plaintiff's peril. As she could have put ered, the defendant ought to have seen the herself in peril in no way except by catching | peril in time. Hence we hold in this case

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that if the operator saw, or by high vigilance, guilty of one or more of those acts. Allen v. would bave seen, plaintiff's dress was caught, Transit Co. (Mo. Sup.) 81 S. W. 1142; Lesser to time to prevent the harmful result, the de- V. R. R., 85 Mo. App. 326. teodants are answerable. There is an antin- 10. Error is assigned because of the excluomy between the doctrines of contributory sion of the letter defendants wrote plaintiff Degligence and of discovered peril (or the last while she was in the hospital. The defendclear cbance) that has resisted all attempts ants received no reply to the letter in questo formulate a theory adequate to indicate tion, and did not seek one or pursue the matclearly in border-line cases which of the two ter further. They say that, as plaintiff redoctrines should control the decision. Yet mained at the hospital at their expense after students of the subject realize that there are receiving the letter, she must be held to bave circumstances under which an injured party accepted the proposition submitted. This sbould recover damages, notwithstanding the proposition was that the defendants would fact that bis own want of care had something continue to pay for her board and attention to do with bringing about the injury by af- at the hospital, provided she assured them fording the opportunity for it to occur. The she would make no additional demand on accase in hand contains testimony to establish count of her injury. Arguing that plaintiff's tacts wbich the last clear chance rule fits. conduct amounted to a tacit acceptance of The vital facts in this connection are that the their offer, defendants' counsel present the operator was charged with the duty to exer- supposed acceptance as a settlement of the eise unusual vigilance for plaintiff's safety, present cause of action. We will say no more and, if she was guilty of negligent conduct on this point than that, in our judgment, which endangered her, such conduct did not there is no ground for the conclusion that continue until the instant her leg was broken, plaintiff accepted the proposition, or in any Dor could she by her own exertions escape the way released her claim. She made no re. danger in which she had placed herself. Any sponse to the letter, and defendants could not Legligence on her part must have occurred, if rest with the negotiation in that state, and at all, before the elevator began to descend. insist afterwards on a constructive assent by By catching her dress, she was put in a posi- plaintiff. Besides, all the evidence went to tion of danger; and, if she caused it to catch, show she was a minor when she left the hossbe put herself in that position. But it is pital, and incapable of entering into an aca reasonable inference that the operator, by cord and satisfaction. The court committed Osing vigilance to see that his passengers no error in excluding the letter. were properly placed before starting, might The judgment is reversed, and the cause tare averted harm to the plaintiff from what remanded. All concur. he was doing (running the elevator), though ber 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

ELAM V. WESTERN UNION TELEGRAPH detached, all would have been well. And if

CO. this precaution could have been taken by the (Kansas City Court of Appeals. Missouri. operator, then, plainly, plaintiff's negligence

June 5, 1905.) only remotely, and not directly, contributed


DENCE. to ber injury, and it was unnecessary to tell the jury she might recover if they found it

Where, in an action against a telegrapb

company for damages for failure to deliver a directly contributed. The instructions should message whereby plaintiff ordered a shipment of bare presented in a concrete way the rule of potatoes, it appeared that the message read, law regarding the right of a party who has

"Two hundred Rose two hundred Ohio one

hundred Triumph," it was proper to permit the arelessly exposed himself to peril to recover

addressee to testify that he would have underfor an injury needlessly inflicted by another stood the message to be an order for a certain person. The general and abstract character

number of bushels of certain kinds of potatoes. of the first part of the seventh instruction

2. SAME.

In an action against a telegraph company #ent beyond the necessities of the case, and

for failure to deliver a message whereby plainFas incompatible with the defense of contrib- tiff ordered potatoes from the addressee, it was story Degligence.

proper to permit him to testify that, if he had 9. The first instruction given for the plain

received the message, he would have complied

with the order. tt held the defendants responsible if plainuff's injury was caused by any failure on

Appeal from Circuit Court, Barton Countheir part to exercise care and precaution in

ty; H. C. Timmonds, Judge. Danaging the elevator-an erroneous view.

Action by N. B. Elam against the Western Not any failure of duty by the defendants,

Union Telegraph Company. From a judgbot only such as there was proof of, should

ment in favor of plaintiff, defendant appeals. bare been submitted to the jury as ground

Affirmed. for a verdict in plaintiff's favor. Different McIndoe & Thurman, for appellant. Cole, ute of negligence were alleged in the peti- Burnett & Moore, for respondent. tion, and some of these were supported by evi. depee Plaintiff's right to recover depended BROADDUS, P. J. The plaintiff's suit is

satisfying the jury that defendants were for dainages for the failure of defendant to


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deliver a certain telegram for the purchase that she ratified certain accounts in the book of potatoes. The petition was in three so far as any of her property was concerned. counts. The two first were for damages, It was held that 'parol evidence was admisand the third for the statutory penalty. The sible to show all the facts and circumstances plaintiff dismissed as to the first, and re- under which the writing was signed, so that covered $97.50 on the second, count. The the court could determine what was probfinding was for defendant on the third count. ably meant by the language (Newberry v. The defendant appealed from the judgment Durand, 87 Mo. App. 290).'” In Thompson on the second count.

v. Thorne, 83 Mo. App. 241, it is held that The facts are as follows: On the 24th it was competent to explain the uncertain day of February, 1904, in response to plain- meaning of terms used in an insurance poltiff's inquiries by telegraphic communication icy. It is well known that, for the purpose of had over defendant's telegraph lines as to convenience and economy, people resorting to the price of certain kinds of potatoes at the the telegraph for business or other purposes then market price, he received from J. H. very generally use only so many words as Kennedy, who was engaged in the wholesale may be necessary to make known to the regrain and potato business at Minneapolis, cipient the meaning intended to be conveyed Minn., the following telegram, viz.: “N. B. by the message. This mode of corresponElam, Lamar, Mo.: Rose dollar four Ohio dence results in both the contraction and dollar fourteen Triumph dollar twelve sack- omission of words ordinarily used. The use ed Lamar. J. H. Kennedy.” On the 25th of the telegraph is an improved and rapid of said month plaintiff delivered to defend

for distant communication, The ant's agent and operator in charge of its courts are bound by the very necessity of the office at Lamar, for transmission to said J. conditions to apply existing legal principles H. Kennedy, at Minneapolis, the following to the interpretation of telegrapbic messages. telegram: J. H. Kennedy, Minneapolis, For instance, if terms are used in a message, Minn.: Two hundred Rose two hundred

the meaning of which is obscure, and such Ohio one hundred Triumph. N. B. Elam."

terms are in general use and understood Plaintiff paid to defendant's agent 50 cents, among those engaged in the business to the regular charge for such service. Through which it refers to have a definite meaning, defendant's fault, the message was never de- the court will receive such evidence for the livered. The plaintiff at the time had con

purposes of making certain that which was tracts to sell in lots to different dealers in uncertain. And also, upon the same princi. potatoes 200 bushels of Rose, 200 bushels of

ple, it is competent in other instances to Ohio, and 100 bushels of Triumph potatoes. show that, as between the sender and the As the telegram to Kennedy was not deliver- recipient of a message, the communication ed, he did not ship to plaintiff any potatoes is mutually understood. whatever, in consequence of which, plaintiff

The contention of defendant that it was was compelled to buy on his home market

error in permitting Kennedy to testify that other potatoes at an advanced price—the dif

he would have accepted and filled plaintiff's ference being $97.50—to comply with his

order, had the message been delivered, we said contracts of sale. It was shown that

do not think is supported by authority. We the word "hundred," in the telegram, meant

are of the opinion that defendant's statement bushels; that “Ohio" meant Ohio potatoes;

of the question is misleading. It was not a “Rose," Rose potatoes; and “Triumph,"

question what he would have done, but what Triumph potatoes; and that they were so

he was legally bound to do, under the cirunderstood by Kennedy. The latter was cumstances. If the telegram had been depermitted to testify that, had he received the

livered, it seems to us that it constituted a mislaid and undelivered telegram sent by contract, for Kennedy bad offered to plaintiff plaintiff, he would have shipped the potatoes

the kind and quantity of potatoes at fixed called for, as he understood the telegram

prices; and the message, if received, was called for potatoes of the kind and quantity an acceptance of the offer, and, as such, was stated.

a contract in writing, binding on the parties. The first contention of defendant is that

If Kennedy had received the message, and de"Kennedy should not have been permitted to livered the potatoes in sacks to plaintiff at testify what he would have done, or that he

Lamar, he would have been legally bound would have accepted and filled the order in

to accept and pay for them at the prices descase the message had been delivered. Nor

ignated. If plaintiff would have been so should he have been permitted to testify bound to Kennedy, then there was a correwhat he would have understood it to mean. sponding obligation upon his part to deliver What he would have done is speculative, re- the .potatoes to plaintiff. The case is differmote, and contingent." Many cases are cit- ent from that where a customer merely ed to sustain defendant's position. In Reyn- makes an order on his merchant for goods, olds v. Tel. Co., 81 Mo. App. 223, the court which does not constitute a sale until the held that it was competent to explain ab- goods are delivered or the order accepted. breviations in words. “A wife signed a “A contract is made when both parties agree statement made in the partnership book of to it. If the offer is made by letter, then it her husband and another party to the effect is made where the party receiving the prop

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