Roscoe v. Metropolitan Street Railway Company
| Decision Date | 28 March 1907 |
| Citation | 101 S.W. 32,202 Mo. 576 |
| Parties | ROSCOE v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Reversed and remanded.
Frank G. Johnson, Willard P. Hall and John H. Lucas for appellant.
(1) The trial court erred in giving instructions requested by the plaintiff. (a) Instruction 1 both enlarges and restricts the issues tendered by the pleadings, is unsupported by evidence and contradictory of other instructions given in the case. Purcell v. Tennant Shoe Co., 187 Mo. 287; Trigg v. Lumber Co., 187 Mo. 234; Story v. Story, 188 Mo. 127; Crane v. Railroad, 87 Mo. 595; Wojtylak v. Coal Co., 188 Mo. 283; Evans v. Railroad, 106 Mo. 601; Heinzle v. Railroad, 182 Mo. 559; Livingston v. Railroad, 170 Mo. 472; Yall v Gillham, 187 Mo. 408; Chitty v. Railroad, 148 Mo. 64. (2) Manifest error was committed by the court in refusing to give instructions requested by defendant. Number 11: This was an issue submitted by the petition, but abandoned by plaintiff, and defendant had the right to have the same withdrawn from the consideration of the jury. Number 12: There was no evidence that the employees did not properly handle the devices and appliances, and defendant was entitled to have that withdrawn from the jury. Number 13: No evidence that the employees caused one train to follow another, and defendant was entitled to have that issue withdrawn. Number 14: No evidence that failure of employees to be at proper posts of duty was the proximate cause, and defendant was entitled to have that issue withdrawn. Number 15: Failure to stop on east side of Penn street should have been withdrawn. Number 16: Defendant was entitled to a peremptory charge. The evidence failed to show that defendant was negligent as charged in the petition. Russell v. Barcroft, 1 Mo 663; Hogan v. Railroad, 150 Mo. 36; Heinzle v. Railroad, 182 Mo. 559; Sawyer v. Railroad, 37 Mo. 259; Price v. Railroad, 72 Mo. 414; Bartlett v. Railroad, 148 Mo. 124; Chitty v. Railroad, 148 Mo. 64; Feary v. Railroad, 162 Mo. 96; Hite v. Railroad, 130 Mo. 332. (3) The trial court admitted incompetent evidence over the objections of defendant. Graney v. Railroad, 157 Mo. 680; Koenig v. Railroad, 173 Mo. 720; Hurt v. Railroad, 94 Mo. 260; Eubank v. Edina, 88 Mo. 655; Dammann v. St. Louis, 152 Mo. 200; Koombs v. Railroad, 65 Mo. 597; Boettger v. Iron Co., 136 Mo. 536; Langston v. Railroad, 147 Mo. 465; Lee v. Kajye & Co., 155 Mo. 641; Ferguson v. Thacher, 79 Mo. 513; Taylor v. Railroad, 185 Mo. 255.
Boyle, Guthrie & Smith for respondent.
(1) The trial court did not err in refusing to give instructions numbered 15 and 11 asked by defendant, upon the theory that there was no evidence tending to show that the gripman in charge of car 129 was guilty of negligence in failing to stop said car east of the center of Penn street. It is claimed by defendant that by the failure of plaintiff to ask for an instruction as to negligence in not stopping east of the center of Penn street, plaintiff thereby abandoned that charge of his petition, and the evidence offered in support thereof. This is a misconception of the law. Plaintiff was not bound to ask any instructions whatever. He could ask for as many or as few as he saw fit. If defendant desired to have the jury advised as to how they should consider the evidence offered in support of any particular claim or claims of plaintiff, defendant had the privilege of asking such instruction. In the absence of instructions asked either by plaintiff or defendant, the jury were entitled to consider the facts according to their own judgment as to the respective obligations of the parties in the premises. Nolan v. Johns, 126 Mo. 166; Minter v. Bradstreet Co., 174 Mo. 491; Browning v. Railroad, 124 Mo. 72; Railroad v. Randolph, etc., Co., 103 Mo. 468; Drury v. White, 10 Mo. 354; Clark v. Hammerle, 27 Mo. 70; Fearey v. O'Neill, 149 Mo. 477; State to use v. Excelsior Distilling Co., 20 Mo.App. 29; Jones v. St. Louis, etc., Co., 43 Mo.App. 407; Taylor v. Springfield, 61 Mo.App. 269; Hurst v. Scammon, 63 Mo.App. 636; Hall v. Jennings, 87 Mo.App. 635. (2) The court properly refused defendant's requests, numbered 11 and 15, seeking to absolutely withdraw from the jury any consideration by them of the duties of defendant's employees in reference to stopping east of the center of Penn street. In the first place, even if plaintiff had failed to establish either an ordinance of the city or a rule of the company requiring cars to be stopped east of the center of Penn street, nevertheless, the jury had a right to take the facts in that respect into consideration in connection with the other evidence as to whether the gripman was properly using his grip or brakes -- as charged in the petition, "in not properly handling and using such devices and appliances as were furnished for such purpose;" the purpose being "to hold said other cable trains firmly attached to said wire cable and to stop the same when not attached thereto;" as well as negligence "in causing one cable train to follow another down said incline before the train farthest down said incline had gotten to a place of safety." In the second place, there was positive and direct testimony that the rules of the company did require cable trains to stop east of the center of Penn street. The charge of the petition was that it was defendant's duty, and it was required by the ordinances of the city and by the rules of the company, to stop east of the center of Penn street. The failure of plaintiff to prove any ordinance requiring them to so stop, did not affect this duty or the proof that the rules of the company did so require them. (3) Plaintiff's petition amounted to a general charge of negligence. While certain items were alleged, they amounted in the aggregate to a general charge. They charge, one after the other, every reasonable and conceivable kind of negligence that could have been involved in producing the given result. Even if the grip had broken, it would have been included within the charge of the petition that the defendant did not provide "proper, sufficient and safe means to hold said cable train firmly attached to said wire cable." What act for which the defendant could have been responsible, as the producing cause of the collision in question, is not embraced in some one of the different charges in this petition? Such being the case, is it not the merest quibbling to say that the case should be tried by a different rule than if these items of negligence had been lumped in one general statement?
Action for personal injuries to plaintiff who was a passenger on one of defendant's street railroad trains. The accident in which plaintiff was injured occurred on August 22, 1902. In the lower court plaintiff had judgment for $ 10,000, whereupon defendant appealed to this court.
Defendant, at date of accident, operated a double-track cable railroad, known as the Ninth Street line, running from the eastern part of Kansas City, Missouri, along Ninth street to the Union Depot. The Union Depot was the western terminus of the line and was at the bottom of a very steep incline on Ninth street. Defendant's trains consisted of two cars, one known as a grip-car and the other as a trailer. The grip-car had a device known as a grip which extended down through the body of the car to a covered conduit in the street, in which conduit was a wire cable kept in continuous onward motion by power from a stationary power-house. The grip was fitted with a clamp in which were removable dies and could be tightly closed upon the cable so as to firmly attach it thereto or could be opened so as to allow the cable to slip through. This device was worked with a lever by an operator known as a gripman. When the grip was clamped tightly, the grip-car moved onward with the cable; when it was opened, the car stopped from loss of motion, or could be quickly stopped at ordinary grades by the application of brakes. The trailer was propelled by being attached to the grip-car.
Ninth street at a point at or near Washington street ascended a slope of considerable grade to Penn street, which crossed it at right angles, and descended to Penn street, which was practically level for a space of twenty-eight feet. From the western edge of Penn street it began to descend and descended at a grade of 10.65 per cent to Jefferson street, and thence on down to Union Depot it descended a very steep grade of 18.6 per cent over an elevated structure or incline.
Plaintiff in his petition alleges that he was a passenger on one of defendant's trains, which had partly descended the incline near Union Depot, when suddenly and without warning another train of defendant descended the incline behind the train which plaintiff was on with great speed and crashed into and wrecked plaintiff's train, throwing plaintiff onto the floor of the incline and against the uprights of the same, rolling him over, cutting, bruising and wounding his hands, his left heel, the back part of his head, his left shoulder and arm and his thighs, wrenching and twisting his left shoulder, cutting a gash over his right eye, cutting the joint of his left index finger to the bone, and cutting the flesh over the knee-cap of his left leg; and further alleges that prior to the injuries aforesaid, he was a strong and healthy man, forty-one years of age and weighing one hundred and ninety-one pounds, but that since said injuries he has suffered a loss of sensation in both legs and in the lower part of his body; that he could not walk without the aid of canes and crutches; that frequently he suffered from...
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