Banks v. Kansas City Railways Company

• Citation: 217 S.W. 488,280 Mo. 227
• Parties: ESTHER BANKS v. KANSAS CITY RAILWAYS COMPANY, Appellant
• Decision Date: 20 December 1919
• Court: United States State Supreme Court of Missouri

217 S.W. 488

280 Mo. 227

ESTHER BANKS v. KANSAS CITY RAILWAYS COMPANY, Appellant

Supreme Court of Missouri, First Division

December 20, 1919

Appeal from Jackson Circuit Court. -- Hon. Daniel E. Bird, Judge.

Reversed and remanded.

R. J Higgins and Chas. N. Sadler for appellant.

(1) The court erred in giving instruction number 1 asked by plaintiff. It is erroneous in that it requires the motorman to use the "highest practicable degree of care" both to discover plaintiff, and to stop the car. It attempts to submit the case to the jury on the "last chance" or humanitarian theory only, and in such cases "ordinary care" is the only care required. Thompson on Negligence 449; Matz v. Railroad, 217 Mo. 299; Nivert v Railroad, 232 Mo. 637; Hall v. Railroad, 219 Mo. 591; Semple v. Railroad, 152 Mo.App. 25; Harlan v. Railroad, 65 Mo. 25-26; Jones v. Railroad, 46 So. 61-64, 121 La. 39. (2) Plaintiff was not a passenger and therefore not entitled to the "highest degree of care" in any event. Stager v. Railroad, 119 Pa. St. 70; Schepers v. Union Depot Co., 126 Mo. 72; Schoefer v. St. L. & Sub. Ry. Co., 128 Mo, 64; 1 Nellis on Street Railways (2 Ed.), secs. 249, 258; Southern Ry. Co. v. Smith, 86 F. 292.

Ed. E. Yates, Claude T. Gobel and Jos. S. Brooks for respondent.

(1) The petition stated a cause of action. Clark v. Railroad, 242 Mo. 593; Haley v. Railroad, 197 Mo. 23; Wacher v. Transit Co., 108 Mo.App. 665; White v. Railroad, 202 Mo. 560. (2) The demurrer to the evidence at the close of the case was properly overruled. The defendant in demurring to the evidence admitted as true every fact which the testimony of the plaintiff tended to prove and every inference which could be reasonably drawn therefrom. Hach v. Railroad Co., 208 Mo. 601; Kinlen v. Railroad, 216 Mo. 155. (3) Plaintiff's instruction was not erroneous. It follows the allegations of the petition, and was based on the petition and evidence in the case. The instruction is neither involved nor misleading. (a) Under the pleadings and evidence in the case it was not error to instruct the jury that defendant was required to exercise "the highest degree of care." The plaintiff was a passenger. She had entered the defendant's station. Passengers were accustomed to cross between the stations, and had been for more than five years without objection and with the consent and at the invitation of defendant. She was such within the meaning of the law and it was the duty of the carrier to exercise the highest degree of care for her safety. The petition describes her as a passenger and the instruction submits the question to the jury. Wood v. Railroad, 181 Mo. 433; Reardon v. Railroad, 215 Mo. 132; Fillinghaar v. Railroad, 102 Mo.App. 581; Albin v. Railroad Co., 103 Mo.App. 316; Cobb v. Railroad, 149 Mo. 150; Phillips v. Southern Ry. Co., 124 N.C. 123, 45 L.R.A. 163; Waller v. Railroad, 59 Mo.App. 4-29; Grimes v. Penn. Co., 36 F. 72; 1 Fetter on Carriers, sec. 228; Young v. Railroad Co., 41 L.R.A. 193; Jordan v. Railroad Co., 165 Mass. 346; Dodge v. Boston & B. S. S. Co., 148 Mass. 207; Warren v. Fitchberg R. Co., 8 Allen, 227; Allendar v. Railroad Co., 37 Iowa 264, 270; Lakeshore Co. v. Foster, 104 Ind. 293; Moore v. Des Moines R. Co., 69 Iowa 491; 2 Wood on Railways (Ed. 1894), sec. 310; New York Central R. Co. v. Lockwood, 84 U.S. 357; Hutchinson on Carriers (2 Ed.), 521a; Phila. R. Co. v. Derby, 55 U.S. 14; The New World v. King, 57 U.S. (16 How.) 469; San Antonio R. Co. v. Murrey, 33 Tex. Civ. App. 626; M. K. & T. Railroad v. Harrison, 120 S.W. 254; Bracket v. Railroad, 70 S.E. 1026.

OPINION

GRAVES, J.

Action for personal injuries. Judgment for plaintiff in the sum of $ 8,000, and defendant has appealed. The negligence charged in the petition is thus stated:

"Comes now plaintiff, leave of court having first been obtained, and files this her first amended petition herein, and for her cause of action against defendant states that defendant, The Kansas City Railways Company, is and was at all the times herein mentioned a corporation duly organized and existing according to law, and as such owned, operated, managed, or controlled a certain system of street railways and elevated railway in Kansas City, Jackson County, Missouri, and more particularly a certain line running over and upon its elevated structure over West 9th Street, and more particularly over West 9th Street where the same intersects with Mulberry Street, and in connection therewith owned, operated, managed or controlled elevated stations at said Mulberry Street; one on the south and one on the north of said tracks.

"That said stations and platforms in front of them running up to or near said tracks and over the north track they operated west-bound cars and over the south track they operated east-bound cars; that said stations were used in connection with said tracks at said point for the accommodation of defendant's passengers; that during all the times herein mentioned there were planks between the rails of said tracks and the platforms of said stations running about the length of said station platforms, and that defendant was at all the time herein mentioned a common carrier of passengers for hire; that the spaces over the tracks and between said platforms at said point were, at all the times herein mentioned and for several years prior thereto, continuously used as a crossing for the public, and that it was and had been the custom of the public to continuously use said point as a crossing at all the times herein mentioned and for several years prior thereto with defendant's acquiescence and without its objection, and defendant's servants and agents in charge of the car in question could reasonably have expected to find persons on said tracks at that place on account of the frequent and continuous use thereof by footmen.

"That on or about the 7th day of March, 1916, plaintiff went up the steps of one of said stations for the purpose of transportation over one of defendant's cars running over and upon said elevated structure at said point, intending to pay the conductor in charge of said car the usual and customary fare exacted by defendants for transportation thereon; and that while she was crossing over said planks and rails from one station to the other at said point and while a passenger of defendant's, its agents, servants, or employees in charge of one of defendant's west-bound cars being operated over said elevated structure, negligently caused, suffered or permitted said car to run into and against plaintiff, knocking her to the rails of the track, or the boards between said tracks, and injuring her; when they knew or by the exercise of the highest degree of care could have known that plaintiff was upon, close to, approaching, or dangerously near said west-bound track and in a position of peril, in time, by the exercise of the highest degree of care, to have stopped said car; or slackened the speed thereof; or to have warned plaintiff of the approach thereof and avoided running into and against plaintiff and injuring her, but negligently failed so to do."

By her prayer plaintiff asked damages in the sum of $ 25,000, and by the concurrence of nine jurors she got a verdict for $ 8,000, upon which the judgment, supra, was entered. The answer was a general denial.

The assignments of error here are some eight in number, and cover all the questions we desire to discuss in the disposition of the case.

For the plaintiff the court gave but two instructions (1) a general instruction, intended to cover the case pleaded, and (2) an instruction on the measure of damages. The general instruction reads:

"The court instructs the jury that if you find and believe from the evidence that on the 7th day of March, 1916, the defendant owned the car, elevated structure, depots and tracks between said depots in question, and were engaged in the carriage of passengers for hire and that said depots were maintained for the use of passengers, in Kansas City, Jackson County, Missouri, and if you further find that defendant's servants were in charge of the car in question, and if you further find and believe from the evidence that on said date and for several years prior thereto at the place where plaintiff claims to have been struck many people were at that time and for several years prior thereto been accustomed to use said tracks and space between said depots as a crossing to and from one of said depots to the other, and that said tracks and space between said depots had been used in this way continuously and habitually for many years with the defendant's acquiescence and without its objection, and that defendant's servants and agents in charge of the car in question could reasonably have expected to find persons on or dangerously near said tracks at the place in question on account of the frequent, continuous and habitual use thereof by footmen, and if you further find from the evidence that on said date the car in question was being run in a westerly direction and approaching said stations, then it was the duty of defendant's motorman operating said car, if he was, to exercise the highest practicable degree of care that would be exercised by careful, experienced and prudent car motormen under the same or similar circumstances to keep a vigilant watchout ahead for persons on said track or approaching dangerously near said track, and if a person or persons were seen or by the exercise of such high degree of care could have been seen by him to be in danger of being struck by said car, to use all reasonable care, consistent with the safety of himself, the car mentioned in the evidence and its passengers, to avoid colliding with them. If, therefore, you find and believe from the evidence that plaintiff was on said date...