Beeson v. Fleming

• Decision Date: 25 June 1926
• Docket Number: 25093
• Citation: 285 S.W. 708,315 Mo. 177
• Parties: Janet Beeson, Appellant, v. Fred W. Fleming and Francis W. Wilson, Receivers of Kansas City Railways Company
• Court: Missouri Supreme Court

285 S.W. 708

315 Mo. 177

Janet Beeson, Appellant, v. Fred W. Fleming and Francis W. Wilson, Receivers of Kansas City Railways Company

No. 25093

Supreme Court of Missouri

June 25, 1926

Appeal from Jackson Circuit Court; Hon. James H. Austin, Judge.

Reversed and remanded.

John F. Cell, R. R. Brewster and J. M. Fisher for appellant.

(1) The alleged colloquy had between the witness Sanger and the motorman was incompetent for any purpose. It was not part of the res gestae. It did not illustrate or shed light on how the collision took place. The statements are self-serving, clearly designed to excuse the motorman from blame for what had happened and intended to cause the jury to decide that all the blame was upon Witty without giving the jury any facts upon which to decide, and said testimony was highly prejudicial. Adams v. Railroad Co., 74 Mo 553; Leahey v. Ry. Co., 97 Mo. 165; Redmond v Railroad, 185 Mo. 1; Koenig v. Ry. Co., 173 Mo 698; Gotnald v. Transit Co., 102 Mo.App. 492; Rosenzweig v. Wells, 273 S.W. 1074; 1 Wharton's Law of Evidence, sec. 259. (2) The giving of Instructions 1-D, 2-D and 3-D as modified by the court and 5-D and 7-D for defendants, was error. Hall v. Coal & Coke Co., 26 Mo. 351; Hinzeman v. Railroad, 182 Mo. 611; Moore v. Transit Co., 126 Mo. 265; Holden v. Ry. Co., 177 Mo. 456; State ex rel. Long v. Ellison, 199 S.W. 984; Humphreys v. Railroad, 178 S.W. 233.

Charles N. Sadler and Louis R. Weiss for respondents.

(1) Testimony of witness Sanger was properly received. Declaration need not be coincident with injury to be admissible as res gestae. Pryor v. Payne, 304 Mo. 560; Noland v. Morris & Co., 212 Mo.App. 1; Grant v. K. C. Southern Ry. Co., 172 Mo.App. 334; Shore v. Dunham, 178 S.W. 900; Vaughan v. Railroad, 177 Mo.App. 174; State v. Martin, 124 Mo. 514; Leahey v. Cass Ave. & Fairgrounds Ry. Co., 97 Mo. 165; Landau v. Travellers Ins. Co., 267 S.W. 376; Greenlee v. Casualty Co., 192 Mo.App. 308; Nahorski v. Elec. Terminal Ry Co., 271 S.W. 751; Barz v. Fleischmann Yeast Co., 271 S.W. 361; Rosenzweig v. Wells, 273 S.W. 1074. (2) Instructions 1-D, 2-D, 3-D, 5-D and 7-D are within purview of pleadings and evidence and correct as to form. (a) It is negligence per se to violate ordinances. Borack v. Mosler Safe Co., 288 Mo. 90; Rooney v. Yellow Cab & Baggage Co., 269 S.W. 668; Adolph v. Brown, 255 S.W. 947; Yonkers v. Railroad, 182 Mo.App. 182; Stone v. Leritz, 182 Mo.App. 315. (b) Failure to define the term "negligence" is not error. Smith v. Greer, 257 S.W. 831; Duvall v. Brooklyn Cooperage Co., 275 S.W. 589; Malone v. Railroad, 213 S.W. 867; Sweeney v. Cable Ry. Co., 150 Mo. 401; West v. Duncan, 249 S.W. 128. (c) It is unnecessary to require a jury to find an act negligent which the law pronounces negligent. Haake v. Dulle Milling Co., 153 S.W. 74; Borowski v. Biscuit Co., 229 S.W. 426; State ex rel. v. Ellison, 199 S.W. 987. (d) Negligence will not be presumed. Pippin v. Construction Co., 187 Mo.App. 360; Whitesides v. Railroad, 186 Mo.App. 619; Witting v. Railroad, 101 Mo. 639; King v. Ringling, 145 Mo.App. 294; Fink v. Railroad, 161 Mo.App. 326; Warner v. Ry. Co., 178 Mo. 133. (e) Mere fact of injury no evidence of negligence. Pointer v. Mountain Ry. Const. Co., 269 Mo. 120; Weber v. Valier & Spies Milling Co., 242 S.W. 985. (f) Not necessary to define "proximate cause," "sole cause" or "concurrent negligence." Maloney v. United Rys. Co., 237 S.W. 515; Berryman v. Surety Co., 227 S.W. 101; Wolters v. Ry. Co., 193 S.W. 877.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

This action was commenced on November 8, 1921, in the Circuit Court of Jackson County, Missouri, and on August 2, 1922, a first amended petition was filed. After setting out formal matters, the amended petition charged negligence against said receivers on two grounds: First, in operating said street car at said time and place at an excessively high and dangerous rate of speed, to-wit, in excess of twenty miles an hour; second, in operating said street car in violation of the revised ordinance of Kansas City, Missouri, in force at the time, regulating the speed of street cars, same being Section 676, found on page 720 of the Charter and Ordinances of Kansas City, Missouri, Annotated, 1909, as follows:

"Section 676. Speed of Street Cars. No street car shall, in any case, be run or operated upon, over or across any street in this city at a greater rate of speed than twelve miles per hour."

Respondent's answer was a general denial, coupled with a plea of contributory negligence, followed by allegations that plaintiff's injuries, if any, were directly and proximately caused by the negligence of H. A. Witty in driving the automobile in which plaintiff was riding at an excessive and dangerous rate of speed under the circumstances. It is averred that, at the dates mentioned in petition, Ordinance No. 28759 and amendments thereto, regulating riding, travel, stopping, standing and traffic in the streets and boulevards of said city, was in full force and effect; that Section 11 of said ordinance is and was as follows:

"A vehicle meeting another shall pass on the right.

"A vehicle overtaking another shall pass on the left side of the overtaken vehicle and not pull over to the right until entirely clear of it, except when a street car is overtaken, it shall be passed on the street car's right."

That Section 14 of said ordinance is as follows:

"A vehicle when turning to the left to enter an intersecting street shall not turn until it shall have passed beyond the center of such intersecting street."

It is alleged that said H. A. Witty negligently drove the automobile in which plaintiff was riding and in so doing violated said Section 11 of ordinance aforesaid, by then and there overtaking, and attempting to pass, a south-bound street car on the east or left-hand side of the south-bound street car; that said Witty negligently drove said automobile in violation of Section 14 of said ordinance, by then and there undertaking to turn to the left, ostensibly for the purpose of entering an intersecting street, before reaching the center of said intersecting street, as required by said ordinance."

It is averred, that the negligent acts aforesaid of said Witty, operating severally and concurrently, directly caused plaintiff's injuries, if any, for which defendants are not liable.

The reply admits that defendants were in charge of the properties of said Railway Company as pleaded in the amended answer, and admits that plaintiff was riding in an automobile driven by said H. A. Witty, as alleged in her first amended petition. The reply denies every other allegation in the answer.

The case was tried during February 12, 13, 14, 15 and 16, 1923, a verdict returned on said last mentioned date in favor of defendants, and judgment rendered accordingly. On February 19, 1923, plaintiff filed her motion for a new trial, which was overruled, and an appeal granted her to this court.

Frank Lashbrook, in behalf of plaintiff, testified substantially as follows: That he was in the front seat of the motor car with H. A. Witty, who was the driver of same; that as the south-bound street car slowed down for the intersection of 14th Street this automobile, following about eight or ten feet behind it, turned to the east, entering upon the north-bound track about twelve feet north of the north curb line on 14th Street; that the north-bound street car which collided with the automobile was running eighteen or twenty miles an hour; that the automobile had been running ten or twelve miles per hour following the south-bound street car, and that when the turn to the east was made by the automobile it was twelve feet north of the intersection of 14th Street, and the presence of the north-bound street car was then discovered; that the speed of the automobile was then accelerated to fifteen or twenty miles per hour, but before the driver of the automobile could get across the northbound track, traveling at the above rate of speed, the collision occurred.

Charles H. Bedingfield, who was seated on a stool in a near-by restaurant, in substance testified that the automobile made a left-hand turn, a few feet north of the intersection at 14th Street; that it was following within four feet from the rear end of a south-bound car, and was running fifteen miles per hour; that he saw the north-bound car for the first time when it hit the automobile, and it was then traveling about eighteen miles an hour; that the automobile speeded up as it turned east and was going about eighteen miles per hour when struck.

Everett Eugene Elser testified for plaintiff substantially as follows: That when the automobile came to the north building line of 14th Street, it started to swing to the east; that in his opinion the north and south-bound street cars passed at the intersection of 14th Street; that he did not see the accident.

Mrs. Janet Beeson testified, as shown by the bill of exceptions, as follows:

"Q. Had you noticed that Mr. Witty was a careless or reckless driver? A. No, sir, I never thought much about it. I was riding and never was afraid of automobiles, and never --

"Q. Did you pay any attention to the way in which he was driving on the morning this happened, prior to this collision? A. No. Of course, I was visiting with the ladies in the back seat and was not paying any attention.

"Q. You placed your safety entirely in the hands of Mr. Witty? A. Yes, sir.

"Q. And you did not look out for any street cars yourself? A. No, sir.

"Q. Nor you did not caution him in any way to be careful, did you? A. No.

"Q. You did not pay any attention to where he was going or driving, did you? A. No; I was visiting with those ladies and I suppose that is the reason I did not see the...