Chamberlain v. Missouri-Arkansas Coach Lines

Decision Date01 June 1943
Docket Number38360
PartiesCharles W. Chamberlain v. Mo.-Ark. Coach Lines, Inc., a Corporation, Appellant
CourtMissouri Supreme Court

Rehearing Denied July 6, 1943.

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge.

Affirmed.

Cowgill & Popham, Hogsett, Trippe, Depping & Houts for appellant.

(1) Plaintiff's Instruction 1 directed a verdict for plaintiff upon alternative hypotheses. The court committed reversible error in giving the instruction if either hypothesis standing alone was erroneous. Lackey v. United Rys. Co., 288 Mo. 120, 231 S.W. 956; Bury v. St Louis-S. F. R. Co., 223 Mo.App. 483, 17 S.W.2d 549; Whitehead v. Fogelman, 44 S.W.2d 261. (2) The hypothesis that defendant through its driver negligently caused and permitted the bus to stop on the highway, was an erroneous submission of general negligence State ex rel. Anderson v. Hostetter, 346 Mo. 249, 140 S.W.2d 21; Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S.W. 1142; Owens v. McCleary, 313 Mo. 213, 281 S.W. 682. (3) The remainder of the first alternative, which submitted stopping of the bus by reason of defective and unsafe condition known to defendant, was erroneous because broader than the petition. The petition was confined to negligence of the driver whereas the instruction submitted negligence of defendant through any employee, agent or officer. State ex rel. Anderson v. Hostetter, supra; Secs. 3652, 3653, R. S. 1939. (4) The stopping by reason of defective condition hypotheses were erroneous for the further reason that the facts submitted did not involve negligence. The owner or operator of a bus is not chargeable with negligence for stopping on the highway unless there is negligence with respect to the place on the highway where the bus is stopped or in failing to exercise due care to warn of its position. 42 C. J., pp. 1006-1007, 1008-1009; Albrecht v. Waterloo Construction Co., 257 N.W. 183; McCoy v. Fleming, 153 Kan. 780, 113 P.2d 1074; Barry v. Tyler, 199 S.E. 496; Southdale v. Smith, 92 So. 402; Collins v. McMullen, 225 Ill.App. 430; State ex rel. Anderson v. Hostetter, supra; Secs. 8385, 8386, R. S. 1939. (5) The stopping by reason of defective condition submission was erroneous for the further reason that it submitted no specific defect and constituted a roving commission to the jury. Owens v. McCleary, supra; Pevesdorf v. Union Electric L. & P. Co., 333 Mo. 1155, 64 S.W.2d 939. (6) There was no substantial evidence to support the submission of stopping of the bus through defective condition known to defendant in time for it in the exercise of ordinary care on its part to have kept the bus off the road. Grange v. C. & E. I. Ry. Co., 334 Mo. 1040, 69 S.W.2d 955; Hamilton v. Railway, 318 Mo. 123, 300 S.W. 787; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Sullivan v. Railroad Co., 317 Mo. 996, 297 S.W. 945; State ex rel. Railroad v. Bland, 313 Mo. 246, 281 S.W. 690; Markowitz v. Railroad, 186 Mo. 350. (7) The second alternative ground submitted by Instruction 1, that defendant negligently failed to have a red light on the rear of the bus, was also erroneous, because broader than the petition. The petition was confined to allegations of negligence of the driver and the instruction submitted negligence of the defendant through any employee, agent or officer. State ex rel. Anderson v. Hostetter, supra. (8) Plaintiff's Instruction 2 was erroneous in directing the jury to assess a penalty of not less than $ 2000 nor more than $ 10,000 against the defendant if it found the issues in favor of the plaintiff, although Plaintiff's Instruction 1 permitted a verdict for plaintiff upon the finding of negligence of defendant other than in the operation of the bus and not involving negligence of its driver. Plaintiff was entitled to recover a penalty only upon pleading and proof of negligence of the driver in the operation of the bus. Secs. 3652, 3653, R. S. 1939; Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Rapp v. Railroad, 106 Mo. 423; McMurray v. Railroad, 225 Mo. 272; Culbertson v. Street Ry. Co., 140 Mo. 35; DeBolt v. Railway Co., 123 Mo. 496; Rinard v. Ry. Co., 164 Mo. 270, 64 S.W. 124; Wallace v. Woods, 340 Mo. 452, 102 S.W.2d 91. (9) Plaintiff's Instruction 3 erroneously advised the jury that if the evidence upon the issue of contributory negligence was "evenly divided" it should find the issue for plaintiff. The weight of the evidence is determined by the quality of the evidence rather than by merely the number of witnesses. 1 Raymond on Instructions, pp. 156-157; LaHue v. Bungenstock, 297 Mo. 577, 249 S.W. 402; Hoyt v. Buder, 318 Mo. 1155, 6 S.W.2d 947; Kunkel v. Griffith, 325 Mo. 392, 29 S.W.2d 64; Barr v. Railroad Co., 37 S.W.2d 927.

Frank O. Knight and Roger C. Slaughter for respondent.

(1) Instruction 1 properly required the jury to find, in order for plaintiff to recover, that the bus was stopped on the highway, or that there were no lighted signal lights on the rear of defendant's bus. Either of these alleged acts constituted negligence per se. While there was abundant evidence as to the defective mechanical condition of the bus, the cause of its position on the highway or of the failure to display lights was immaterial. Sec. 8386, R. S. 1939; Smith v. Producers Cold Storage Co., 128 S.W.2d 299; Cotton v. Ship-By-Truck Co., 337 Mo. 270, 85 S.W.2d 80; 5 Am. Jur., p. 685, sec. 340, note 20; 2 Blashfield Cyc. Automobile Law & Practice (Perm. Ed.), 322-23, note 11; Cram v. Eveloff, 127 F.2d 486; Watt v. Associated Oil Co., 123 Ore. 50, 260 P. 1012; Skaggs v. Willhour, 210 Cal. 524, 292 P. 649; Rozycki v. Yantic Grain & Products Co., 99 Conn. 711, 122 A. 717, 37 A. L. R. 582; Sec. 8385, R. S. 1939, subsection (a). (2) Instruction 2 properly submitted the case to the jury under the penalty Section (3652, R. S. 1939). The stopping of the bus on the main traveled part of the highway, as well as the operation of the bus without rear lights, were the negligent acts of the driver in the operation of the bus; hence the invoking of the penalty was proper. Sec. 3652, R. S. 1939; Cotton v. Ship-By-Truck Co., 337 Mo. 270, 85 S.W.2d 80; Watt v. Associated Oil Co., 123 Ore. 50, 260 P. 1012; 2 Blashfield Cyc., Automobile Law & Practice (Perm. Ed.), pp. 322, 323; Morgan v. Mining Co., 199 Mo.App. 26; Taylor v. Mo. Pac. Ry. Co., 26 Mo.App. 336; Pattison's Missouri Code Pleading (2d Ed.), secs. 229, 300, 310. (3) Instruction 3 is a proper instruction on the burden of proof as to the issue of contributory negligence. While the word "divided" is not as accurate as "balanced", the jury was not misled. 1 Raymond Missouri Instructions 156, sec. 152, note 47; Stokes v. Godefroy Mfg. Co., 85 S.W.2d 434.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION
VAN OSDOL

This appeal is from a judgment in the sum of $ 10,000 for wrongful death of the wife of plaintiff. At about two o'clock in the morning of December 14, 1940, plaintiff, his wife, his small son, and his wife's brother, Elmer Allen, started to drive in plaintiff's automobile from Kansas City, Missouri, to Versailles, Missouri; plaintiff was driving and his wife was seated in the front seat on his right. When traveling eastwardly on United States Highway No. 50, at a point about eight miles east of the city limits of Kansas City, the automobile collided with the rear end of the defendant's bus No. 56. Plaintiff's wife was thrown forward and partially through the windshield of plaintiff's car, sustaining injuries of which she died on December 16, 1940. Plaintiff and his brother-in-law were also injured. The front of plaintiff's automobile was demolished and the left rear end of defendant's bus was damaged. The defendant is a motor carrier of passengers serving the points of Springfield and Kansas City, Missouri, and elsewhere.

The allegations of plaintiff's petition, material to questions herein involved, are as follows:

"Plaintiff further states that said collision and the death of his said wife were directly and proximately caused by the following negligent acts and omissions of the defendant through its servant, agent, and employee in charge of said bus as a driver:

"(a) Defendant negligently permitted said bus to stop or to move so slowly as to constitute a dangerous hazard to plaintiff's wife and other members of the public using the highway upon the main traveled portion of said highway.

"(b) Defendant negligently failed to have upon the rear of said bus lighted signal lamps or tail-lights or other lighted signals of any character, or if any signal lamps or other lights upon the rear of said bus were lighted, they were not plainly visible for a distance of 500 feet, or for any other distance, but were so dim and indiscernible as to create a dangerous hazard to persons traveling on the highway and overtaking said bus, including plaintiff's said wife. . . .

"(d) Defendant negligently undertook to drive and operate said bus upon the public highway in Jackson County, Missouri, when said bus was not in a reasonably safe condition, but when the same was in a defective and unsafe condition and that said condition was known to defendant, or that said bus had been in said condition for sufficient length of time so that defendant, in the exercise of ordinary care upon its part, could and should have known of said defective condition."

The defendant, appellant, assigns error in Instructions Numbers 1, 2 and 3 given by the court at the instance of plaintiff.

Instruction Number 1 directed the jury to find for plaintiff:

" . . if you further find that at said time and place the defendant, acting by and through its driver Hutcheson, negligently caused and permitted defendant's bus #56 to stop on said highway, if he did, and if you further find...

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3 cases
  • Cooper v. Kansas City Public Service Co.
    • United States
    • Missouri Supreme Court
    • May 12, 1947
    ... ... Kansas City Pub. Serv. Co., Mo. Sup., 190 S.W.2d 924; ... Chamberlain v. Missouri-Arkansas Coach Lines, 351 ... Mo. 203, 173 S.W.2d 57; Lackey ... ...
  • Chamberlain v. Mo.-Ark. Coach Lines
    • United States
    • Missouri Supreme Court
    • October 4, 1945
  • Crites v. Kansas City Public Service Co.
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    ...fact the case is fairly comparable to the defendant's objection in Chamberlain v. Mo.-Ark. Coach Lines, Inc., 351 Mo. 203, l.c. 211, 212, 173 S.W. 2d 57, l.c. 61, to the use the word "defendant" in a plaintiff's instruction rather than the use of the words "defendant's driver" as the petiti......

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