Baker v. Kansas City Public Service Co.

• Decision Date: 06 November 1944
• Docket Number: No. 39084.,39084.
• Citation: 183 S.W.2d 873
• Parties: MAURICE BAKER v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

183 S.W.2d 873

MAURICE BAKER v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 39084.

Supreme Court of Missouri.

Division One, November 6, 1944.

Rehearing Denied, December 4, 1944.

Appeal from Jackson Circuit Court. — Hon. Albert A. Hughes, Judge.

AFFIRMED.

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

(1) The trial court erred in permitting plaintiff's witness, Robert Brumfield, without qualification or knowledge, to testify as an expert with reference to the distances, relative and at various speeds, within which a new 700 type street car can be stopped in an emergency; said witness Brumfield having testified that he had never operated the new 700 type street car. Grotjan v. Thompson, 140 S.W. (2d) 706; Irwin v. St. Louis-S.F. Ry. Co., 325 Mo. 1019, 30 S.W. (2d) 56; Mammerberg v. Metropolitan St. Ry. Co., 62 Mo. App. 563; Igo v. Chicago & Alton R. Co., 38 Mo. App. 377; Robison v. Chicago, Great Western R. Co., 66 S.W. (2d) 180; Bebout v. Kurn, 348 Mo. 501, 154 S.W. (2d) 120; Bode v. Wells, 322 Mo. 386, 15 S.W. (2d) 335; Goggin v. Wells, 249 S.W. 702; Lyons v. Metropolitan St. Ry. Co., 253 Mo. 143, 161 S.W. 726; Kinlen v. Metropolitan St. Ry. Co., 216 Mo. 145, 115 S.W. 523. (2) The trial court erred, to the prejudice of the defendant, in overruling defendant's demurrer to the evidence. (3) Plaintiff waives all abandoned assignments of negligence. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W. (2d) 91. (4) As plaintiff knew of the approach of the southbound street car, he was not oblivious of his peril, and, therefore, the humanitarian doctrine did not function in this case until plaintiff was not only on the southbound street car tracks, but was likewise in a position of inescapable peril — a position of inability to turn or swerve from the southbound street car tracks and thus avoid the collision by his own efforts. Gosney v. May Lbr. & C. Co., 179 S.W. (2d) 51; Robards v. K.C. Public Service Co., 177 S.W. (2d) 709; Melenson v. Howell, 344 Mo. 1137, 130 S.W. (2d) 555; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482. (5) There is no evidence in this case as to when plaintiff reached a place of inescapable peril on the southbound street car track, as there is no evidence as to the time or distance within which plaintiff, at the speed he was going, could swerve from the southbound street car track and thus avoid a collision. There is, therefore, no evidence of this basic element of the humanitarian doctrine. There is likewise no evidence as to the distance between the auto and the street car when plaintiff reached a position of inescapable peril. Bauer v. Wood, 154 S.W. (2d) 356; Swain v. Anders, 235 Mo. App. 125, 140 S.W. (2d) 730; State ex rel. Baldwin v. Shain, 125 S.W. (2d) 41; Petty v. St. L. & M.R. Co., 179 Mo. 666, 78 S.W. 1003; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W. (2d) 135; Sapp v. Carman Co., Inc., 95 S.W. (2d) 658; Webb v. Cox, 53 S.W. (2d) 1057; Hollister v. A.S. Aloe Co., 348 Mo. 1055; Robinson v. O'Shanzky, 96 S.W. (2d) 895; Crawshaw v. Mable, 52 S.W. (2d) 1029. (6) There is no substantial evidence that the street car operator was guilty of any negligence in failing to stop the street car after plaintiff came into a position of inescapable peril from the approaching street car, and there is no substantial evidence that any such negligence was the proximate cause of the accident. Gosney v. May Lbr. & C. Co., 179 S.W. (2d) 51; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W. (2d) 600; Miller v. K.C. Public Service Co., 178 S.W. (2d) 824; Sammons v. K.C. Public Service Co., 179 S.W. (2d) 620; Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344, 73 S.W. 584; Petty v. St. Louis & M.R.R. Co., 179 Mo. 666, 78 S.W. 1003; Driscoll v. Wells, 29 S.W. (2d) 50; Rafferty v. Levy, 153 S.W. 765. (7) There is no substantial evidence that the street car operator was guilty of any negligence in failing to slacken the speed of the street car after plaintiff came into a position of inescapable peril from the approaching street car, and there is no substantial evidence that any such negligence was the proximate cause of the accident. There is no evidence with reference to the time or distance necessary to slacken the speed of the street car and thus enable plaintiff and his auto, if so, to leave the track and avoid a collision. Gosney v. May Lbr. & C. Co., 179 S.W. (2d) 51; Bauer v. Wood, 154 S.W. (2d) 356; Sammons v. K.C. Public Service Co., 179 S.W. (2d) 620; Kick v. Franklin, 342 Mo. 715, 117 S.W. (2d) 284; Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344, 73 S.W. (2d) 584; Wolverton v. Kurn, 348 Mo. 908, 156 S.W. (2d) 638; Rose v. Thompson, 346 Mo. 395, 141 S.W. (2d) 824; Meese v. Thompson, 344 Mo. 777, 129 S.W. (2d) 847; Christner v. Chicago, R.I. & P. Ry. Co., 228 Mo. App. 220, 64 S.W. (2d) 752; State ex rel. Baldwin v. Shain, 125 S.W. (2d) 41; Driscoll v. Wells, 29 S.W. (2d) 50; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W. (2d) 135. (8) Where opinion evidence as to speeds, distances, and relative positions is speculative, is entirely beyond reason, and the discrepancies are too great to be reconciled, such opinion evidence has no probative value or legal effect. Bauer v. Wood, 154 S.W. (2d) 356; Sammons v. K.C. Public Service Co., 179 S.W. (2d) 620; Swain v. Anders, 235 Mo. App. 125, 140 S.W. (2d) 730. (9) Where the testimony of a witness (particularly a party) gives rise to two or more equally reasonable contrary inferences there is no inference that can be indulged without mere speculation and where the testimony of a witness is contrary and conflicting, one version tending to prove the issue and the other tending to disprove it, with no explanation of the contradiction, the jury should not be permitted to speculate or guess which statement of the witness should be accepted. Pashea v. Terminal R. Assn. of St. Louis, 165 S.W. (2d) 691; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W. (2d) 644; Weisman v. Arrow Trucking Co., 176 S.W. (2d) 37; Swain v. Anders, 235 Mo. App. 125, 140 S.W. (2d) 730. (10) The testimony of a witness that defendant's approaching street car did not "seem to slow down or slacken speed" amounts to a mere conclusion without probative value or legal effect. Hall v. Wilkerson, 84 S.W. (2d) 1063; Gorman v. Franklin, 117 S.W. (2d) 289. (11) Opinion evidence — opinion evidence of speed, distance and time — which amounts to a mere guess is improper, inadmissible and has no probative value. Gorman v. Franklin, 117 S.W. (2d) 289; Swain v. Anders, 235 Mo. App. 125, 140 S.W. (2d) 730; Christner v. Chicago, R.I. & P. Ry. Co., 228 Mo. App. 220, 64 S.W. (2d) 752; Willis v. K.C. Terminal Ry. Co., 199 S.W. 736; Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344, 73 S.W. 584. (12) Even though improper evidence, such as opinion evidence of speed, distance and time, was introduced in evidence without objection, the legal effect of such evidence must be determined by the court, and, if such evidence has no probative value — being a mere guess or conclusion — it cannot be treated as substantial evidence, either by the trial or reviewing court, as such courts are not authorized to speculate and guess. Turner v. M., K. & T.R. Co., 346 Mo. 28, 142 S.W. (2d) 455; Nodaway Conty v. Williams, 199 S.W. 224; Swain v. Anders, 235 Mo. App. 125, 140 S.W. (2d) 730; Spain v. St. Louis & S.F. Ry. Co., 190 S.W. 358; Lyman v. Dale, 262 Mo. 353, 171 S.W. 352; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13, 157 S.W. 644; Smith v. Met. Life Ins. Co., 108 S.W. (2d) 995. (13) Plaintiff, offering no evidence as to distance within which defendant's street car could have been stopped at speeds testified to by plaintiff, made no case for jury under humanitarian doctrine, even though defense witnesses testified as to stopping distance at other speeds. Plaintiff is not aided by other testimony contrary to plaintiff's theory of case. Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W. (2d) 600; Miller v. Kansas City Pub. Serv. Co., 178 S.W. (2d) 824; Nodaway County v. Williams, 199 S.W. 224; Swain v. Anders, 235 Mo. App. 125, 140 S.W. (2d) 730; Spain v. St. Louis & S.F. Ry. Co., 190 S.W. 358; Lyman v. Dale, 262 Mo. 353, 171 S.W. 352; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13, 157 S.W. 644; Smith v. Met. Life Ins. Co., 108 S.W. (2d) 995. (14) It requires evidence of more than a mere possibility that defendant might have avoided accident to put liability on defendant under the humanitarian doctrine. Burton v. Joyce, 22 S.W. (2d) 890; Rafferty v. Levy, 153 S.W. (2d) 765. (15) As the evidence shows that the plaintiff is not entitled to recover either on primary or humanitarian negligence, and that plaintiff has presented his evidence to the fullest extent possible, this case should be reversed outright rather than merely reversed and remanded. Hanks v. Anderson-Parks, Inc., 143 S.W. (2d) 314; Miller v. Wilson, 288 S.W. 997. (16) Plaintiff's Instruction 1, directing a verdict for the plaintiff, submits negligence of the defendant in the alternative, namely, failure to stop the street car or slacken the speed thereof. Under such instruction plaintiff had the burden of supporting both alternatives of negligence with substantial evidence, and, if one alternative of negligence is not supported by substantial evidence, the instruction constitutes reversible error; a fortiori, as here, where both alternative grounds of negligence are not supported by substantial evidence showing such negligence or that such negligence is the proximate cause of the accident. State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W. (2d) 835; Carlisle v. Tilghmon, 159 S.W. (2d) 663; Martin v. Springfield City Water Co., 128 S.W. (2d) 674. (17) Plaintiff's Instruction 1 is prejudicially erroneous, being confusing and misleading, in that it attempts to impose the duty on the defendant to avoid the collision after the collision occurred and in that the duty imposed was impossible of performance. Williams v. St. Louis Public Service Co., 54 S.W. (2d) 764; ...