Petty v. Kansas City Public Service Co.

• Citation: 191 S.W.2d 653,354 Mo. 823
• Decision Date: 03 December 1945
• Docket Number: 39417
• Parties: Ruth Viola Petty, pro ami, v. Kansas City Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

191 S.W.2d 653

354 Mo. 823

Ruth Viola Petty, pro ami, v. Kansas City Public Service Company, a Corporation, Appellant

No. 39417

Supreme Court of Missouri

December 3, 1945

Rehearing Denied January 7, 1946.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Charles L. Carr and Harding, Murphy & Tucker for appellant.

(1) The court erred in refusing to give defendant's Instruction E in the nature of a demurrer to the evidence at the close of plaintiff's case. (2) The court erred in giving plaintiff's Instruction 1. The instruction improperly and erroneously failed to correctly state the substance of said ordinances so as to mislead and misdirect the jury as to the provisions of the ordinances pleaded and offered in evidence and submitted questions of law for the determination of the jury relative to ordinances of Kansas City, Missouri, in that said instruction erroneously directed the jury to determine whether or not said ordinances were in force and effect, and to determine the law as declared by said ordinances, their construction and application. Hogan v. Fleming, 297 S.W. 404, 317 Mo. 524; Henry v. Illinois Central R. Co., 282 S.W. 423. (3) Instruction 1 is confusing, misleading, ambiguous and unduly long and involved. Henry v. Illinois Central R. Co., 282 S.W. 423. (4) The instruction erroneously and improperly begins with an abstract statement of law which improperly instructs on an issue not in the case, and improperly misdirects the jury and, by implication, directs a verdict for defendant. (5) The instruction erroneously and wrongfully submitted to the jury the existence and legality of the 15-mile speed ordinance (Chapter 61-3, Revised Ordinances of Kansas City, 1941), which had been repealed and not in force or effect the day of the accident, causing said jury to be misinstructed and misdirected as to the speed ordinance in force and effect. (6) The court erred in refusing to grant defendant a new trial because there was a mistrial in this case in that plaintiff pleaded and introduced in evidence Chapter 61, Revised Ordinance of Kansas City, 1941, Section 3, purporting to limit speed of streetcars to 15 miles per hour, whereas in fact said section of the ordinance had been repealed and was in conflict with later ordinance by reason of which the jury was misinstructed on the speed law in force at said time and place. Fish v. Walsh, 154 N.E. 148, 323 Ill. 359; City of Chicago v. Degitis, 48 N.E.2d 930, 383 Ill. 171; Robertson v. State, 159 S.W. 713; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281, 326 Mo. 435; State ex rel. Atty. General v. Heidorn, 74 Mo. 410. (7) The accident occurred February 1, 1943. Suit was filed for $ 30,000. A verdict was rendered for $ 30,000 in October, 1944. The verdict is grossly excessive and reveals the fact that the jury was wrongfully misled by Instruction 1, and was moved by prejudice and passion so that defendant did not have a fair trial. The court erred in refusing to grant a new trial on the ground of excessiveness and prejudice, and the error was not remedied by requiring a remittitur of $ 12,000 and allowing a judgment of $ 18,000, said sum still being excessive. Bryant v. Kansas City Ry. Co., 228 S.W. 472, 286 Mo. 342; Shields v. Kansas City Ry. Co., 264 S.W. 895; Williams v. Fleming, 284 S.W. 794; Israel v. Wabash Ry. Co., 239 S.W. 81; Fitzsimmons v. Mo. Pac. Ry. Co., 241 S.W. 915, 294 Mo. 551; Johnson v. Chicago, & E.I. Ry Co., 64 S.W.2d 674, 334 Mo. 22; Evans v. Terminal Ry. Assn. of St. Louis, 69 S.W.2d 929; Thompson v. Smith, 253 S.W. 1023; Cole v. St. Louis-S.F. Ry. Co., 61 S.W.2d 344, 332 Mo. 999; S.S. Kresge Co. v. Fader, 158 N.E. 174, 116 Ohio St. 718. (8) Witness Deloris Frakes was not a competent, qualified witness. Burnham v. Chicago G.W. Ry. Co., 100 S.W.2d 858; State v. Jackson, 2 S.W.2d 758, 318 Mo. 1149. (9) The court erred in refusing to declare a mistrial when witness Deloris Frakes cried on the witness stand, and further erred in refusing to declare a mistrial when plaintiff's mother, seated at the counsel table, broke down and cried during the final argument, all to the prejudice of defendant; the court erred in admitting in evidence plaintiff's Exhibits 5 and 6, being pictures of the nude body of plaintiff, showing the left leg amputated about 3 inches below the knee, and said pictures arousing great sympathy for plaintiff and prejudice against the defendant, all of which was reflected in an excessive verdict. Pearson v. Kansas City, 78 S.W.2d 81; Stutz v. Milligan, 223 S.W. 128; Smith v. Thompson, 142 S.W.2d 70, 346 Mo. 502; Meyer v. Johnson, 30 S.W.2d 641, 224 Mo.App. 565; Ullom v. Griffith, 263 S.W. 876. (10) The court erred in refusing to declare a mistrial when plaintiff's counsel, in his closing argument, waved the pictures of the child before the jury and made an impassioned plea to the jury. Walsh v. Terminal R. Assn. of St. Louis, 182 S.W.2d 607; Dodd v. Missouri-Kansas-Texas R. Co., 184 S.W.2d 454.

Williams F. Knowles, Gilbert R. Titus, Paul C. Sprinkle and Sprinkle & Knowles for respondent.

(1) There was a submissible case. Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149. (2) The instruction was not erroneous. Peterson v. United Rys. Co., 270 Mo. 67, 192 S.W. 938; Moss v. Wells, 249 S.W. 411; Murray v. Wells, 17 S.W.2d 613; Spencer v. St. Louis Transit Co., 121 S.W. 108, 222 Mo. 310; Hovarka v. St. Louis Transit Co., 90 S.W. 1142, 191 Mo. 441; Masterson v. St. Louis Transit Co., 98 S.W. 504, 204 Mo. 507; Hogan v. Fleming, 297 S.W. 404, 317 Mo. 524; Henry v. Railroad Co., 282 S.W. 423; Wolfe v. Payne, 241 S.W. 915, 294 Mo. 170; McIntyre v. Ry. Co., 227 S.W. 1047, 286 Mo. 234; Tash v. Ry. Co., 76 S.W.2d 690, 335 Mo. 1148; Cunningham v. Lead Co., 26 S.W.2d 957; Rowe v. Railroad Co., 100 S.W.2d 480, 487, 339 Mo. 1145; Farris v. Ry. Co., 80 Mo. 325; Berry v. Railroad Co., 114 S.W. 27, 214 Mo. 593; McGee v. Railroad Co., 114 S.W. 33, 214 Mo. 530; Volz v. St. Louis, 32 S.W.2d 72, 326 Mo. 362; Norris v. Walker, 110 S.W.2d 404, 232 Mo.App. 645. (3) There was no error as to the ordinance. Sec. 3, Chap. 61, Revised Ordinance of Kansas City, Missouri, of 1941; Roper v. Greenspon, 272 Mo. 288, 198 S.W. 1107; McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 792; Carney v. Chicago, R.I. & P. Ry. Co., 323 Mo. 470, 23 S.W.2d 993; Blythe v. United Rys. Co., 211 S.W. 695; Clark v. Trilinsky, 170 S.W.2d 459; Roper case, supra, l.c. 461; Fish v. Walsh, 154 N.E. l.c. 148; State v. Kessels, 120 Mo.App. 233, 96 S.W. 494; Sec. 38, Chap. 11, Revised Ordinance of Kansas City, Missouri, of 1941; Ruschenberg v. Southern Electric Ry. Co., 161 Mo. 70, 61 S.W. 626; Campbell v. St. Louis & Suburban Ry. Co., 175 Mo. 161, 75 S.W. 86; State v. Harris, 337 Mo. 1032, 87 S.W.2d 1026; Dove v. Atchison, T. & S.F. Ry. Co., 163 S.W.2d 548. (4) The judgment was not excessive. Bryant v. Kansas City Rys. Co., 286, Mo. 342, 228 S.W. 472; Shields v. Kansas City Ry. Co., 264 S.W. 890; Williams v. Fleming, 284 S.W. 794; Israel v. Wabash Railroad Co., 239 S.W. 81; Evans v. Terminal Railroad Assn. of St. Louis, 69 S.W.2d 929; Miller v. Schaff, 228 S.W. 488; Oglesby v. Mo. Pac. Railroad Co., 150 Mo. 137, 37 S.W. 829; Mann v. St. Louis & S.F. Railroad Co., 72 S.W.2d 977; Beebe v. Kansas City, 327 Mo. 67, 34 S.W.2d 57; Milburn v. Chicago, M. St. P. & P.R. Co., 331 Mo. 1171, 56 S.W.2d 80; Prichard v. Dubinsky, 338 Mo. 360, 89 S.W.2d 530; Glaves v. Old Gem Catering Co., 18 S.W.2d 564; Jones v. Pennsylvania Railroad Co., 182 S.W.2d 157. (5) The witness was competent. Sec. 1895, R.S. 1939; State v. Anderson, 252 Mo. 83, 158 S.W. 817; State v. Herring, 268 Mo. 514, 188 S.W. 169. (6) A mistrial was not required because of events during the trial. Boyer v. Railroad Co., 293 S.W. 386; Walsh v. Drewes, 38 S.W.2d 271; Creighton v. Railroad Co., 229 Mo.App. 325, 66 S.W.2d 980; Murphy v. Fred Wolferman, 347 Mo. 634, 148 S.W.2d 481; Borrson v. Railroad Co., 161 S.W.2d 227; Lackey v. Railway Co., 305 Mo. 260, 264 S.W. 807; Hutchison v. Produce Co., 234 Mo.App. 518, 133 S.W.2d 701; Phillippi v. Railroad Co., 136 S.W.2d 339. (7) A mistrial was not required because of the jury argument. Goyette v. Railway, 37 S.W.2d 552; Willis v. Railway Co., 178 S.W.2d 341.

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

OPINION

VAN OSDOL

Action for personal injury. Nine jurors agreed upon a verdict awarding plaintiff damages in the sum of $ 30,000. The trial court required a remittitur of $ 12,000, and judgment was rendered for $ 18,000. Defendant has appealed.

Plaintiff, a girl three years and four months of age, accompanied by her aunt, a child nine years of age, passed northwardly from the southeast corner of the intersection of Twelfth and Harrison Streets in Kansas City. Defendant's streetcar, eastbound on Twelfth Street, struck plaintiff, crushing her left leg under a wheel; it was necessary to amputate her leg three inches below the knee.

Plaintiff's case was submitted to the jury on failure to observe; on excessive speed under the circumstances; and on speed at which the streetcar could not be controlled or so slowed as to avoid a collision. Defendant had filed a general denial.

Defendant (appellant) has made twelve assignments of error, presenting five principal contentions for review. (1) Plaintiff made out no case submissible to the jury. (2) Plaintiff's Instruction Number One was erroneous in failing to correctly state the substance of city ordinances, and in submitting to the jury the question whether the ordinances were in force in submitting the existence and legality of an ordinance which had been repealed; in being so long and involved as to mislead; and in telling the jury "because of the tender age of the...