Toncrey v. Metropolitan Street Railway Co.
| Decision Date | 17 February 1908 |
| Parties | GEORGE RUSSELL TONCREY, Respondent, v. METROPOLITAN STREET RAIWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John H Lucas and Halbert H. McCluer for appellant.
(1) The evidence was not sufficient to entitle the plaintiff to recover, and the court erred in refusing to give defendant's peremptory instruction asked at the close of plaintiff's evidence, and again at the conclusion of all the evidence. Smart v. Kansas City, 91 Mo.App. 593; Smith v. Bank, 99 Mass. 612; Glasscock v Swofford Bros., 106 Mo.App. 657; Franklin v Railroad, 97 Mo.App. 473; Kelley v. Railroad, 105 Mo.App. 365. (2) The court erred in giving instructions 1, 2, 3, 8 and 9 asked by plaintiff, and each of them, over defendant's objections. As to instruction number 8. Glasscock v. Swofford Bros., 106 Mo.App. 657; Franklin v. Railroad, 97 Mo.App. 473; Kelley v. Railroad, 105 Mo.App. 365; Purcell v. Railway, 103 S.W. 115.
Boyle, Guthrie, Howell & Smith for respondent.
(1) And the defendant cannot complain that the plaintiff adopted the same theory of instruction as it did. Christian v. Insurance Co., 143 Mo. 467; Hardwick v. Cox, 50 Mo.App. 514; Rattan v. Railway, 120 Mo.App. 279; Plummer v. City, 79 Mo.App. 444. (2) However, notice was sufficiently predicated in the general instruction as to negligence in having "a worn and defective grip in use," as has recently been twice declared by this court, as well as the Supreme Court. Fassbender v. Railway, 104 S.W. 1154; Bellamy v. Whitsell, 123 Mo.App. 615; Clippard v. Transit Co., 202 Mo. 432. If the instruction was too general, the defendants had the privilege of asking one more specific. (3) Complaint is made by defendant that this instruction does not specifically designate the acts of the defendant which would constitute negligence. But negligence was properly elsewhere defined as the omission of ordinary care. If the defendant desired a more specific designation as against such a general instruction, it was its privilege to ask an instruction for that purpose; and failing to do so it cannot complain of the generality of plaintiff's instruction. Harmon v. Donohoe, 153 Mo. 263; Smith v. Fordyce, 190 Mo. 1; Longan v. Weltmer, 180 Mo. 335.
--Plaintiff was an employee of the defendant as a conductor on one of its street cars. He suffered injury which he alleges was caused by the negligence of defendant. He thereupon brought this action and recovered judgment in the trial court.
It appears that plaintiff in the capacity of a conductor was in charge of one of defendant's street cars traveling south on Summit street in Kansas City, and was at the foot of a long and somewhat steep hill, or, as has been expressed, at the bottom of a long incline. That other of defendant's servants, a conductor and gripman, were in charge of what is known as a cable car, operated by cable rope beneath the surface. That the latter car, also traveling south, approached the "brow of the hill" where a person was standing to take passage, and for the purpose of stopping, the gripman released the grip from the cable rope and applied his brakes, but the rails were wet and while the car "slowed up" some, yet it did not stop, though the passenger got aboard while it was moving. In this way the car went over the brow of the hill. The gripman then immediately attempted to fasten the grip onto the cable rope so as to prevent the speed of the car from exceeding that of the rope. The grip failed to take hold of the rope, or at least to hold onto it. The gripman stated in testimony that the rope "squeezed out" of the grip. In consequence the car started rapidly down the hill and collided with the one at the bottom and upon which was the plaintiff, whereby he received his injury. The charge in the petition is that "owing to the defective and worn grip, the car ran down the hill." The petition then states the collision and plaintiff's injuries, and adds that "Plaintiff states that the defective condition of said car was known to defendant, and said defendant was careless and negligent in running said defective car." That statement is all there is in the petition charging negligence.
Defendant asked an instruction, in the nature of a demurrer to the evidence, which the court refused. In defendant's contention in behalf of the propriety of that instruction, and in plaintiff's resistance thereto, we have had placed before us in oral and written argument, a somewhat lengthy, though comprehensive and plain statement of the nature of the grip, its relation to the cable rope, its attachment to the car and the manner of its operation. We do not deem it would serve any useful purpose to set forth this descriptive detail as made up by the testimony. It is enough to say that an examination of the evidence, as preserved in the record, has satisfied us that there was substantial evidence in plaintiff's behalf tending to show that the grip was defective and that defendant knew it. We therefore approve the ruling in refusing the demurrer.
In Glasscock v. Dry Goods Co., 106 Mo.App. 657, 664, 80 S.W. 364, the presiding judge stated the rule to be that "It must be shown not only that there was a defect in the place or appliance which caused the injury but that it was known, or could have been known to the employer had he exercised ordinary care; and in the absence of proof of either of these essentials there can be no recovery." The instructions for plaintiff are commendably few. But we regard the principal one (No. 8) as harmfully erroneous and as altogether out of line with our trial practice in that it deprives defendant of the benefit of the law we have just quoted. It enumerates a part of the issues made by the pleadings and directs a verdict for plaintiff on a finding of those issues. It will be observed that the petition, in recognition of the law, affirmatively charges that defendant knew of the defective grip, yet the hypothesis of defendant's knowledge of the defect is omitted from the instruction; and thus the jury are directed to find for plaintiff, even though defendant did not know the grip was defective. The charge means that defendant not only knew the condition of the grip, but it knew that it was defective, and such issue should have been embraced in the instruction as one of the conditions to be found in order to give plaintiff the verdict. The effect of the instruction was the same as if the court had declared peremptorily that defendant did know; and that would have amounted to no less than a peremptory direction to find a verdict for the plaintiff, leaving only the amount of the damages for the jury to determine. [Clark v. Hammerle, 27 Mo. 55, 70; Budd v. Hoffheimer, 52 Mo. 297; State v. Lentz, 184 Mo. 223, 83 S.W. 970; Boothe v. Loy, 83 Mo.App. 601; Hohstadt v. Daggs, 50 Mo.App. 240; State v. Davies, 80 Mo.App. 239; Glasscock v. Swafford, 106 Mo.App. 657, 80 S.W. 364; ...
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