Bergfeld v. Kansas City Railways Co.

• Decision Date: 30 December 1920
• Parties: JOSEPH BERGFELD v. KANSAS CITY RAILWAYS COMPANY, Appellant
• Court: Missouri Supreme Court

227 S.W. 106

285 Mo. 654

JOSEPH BERGFELD v. KANSAS CITY RAILWAYS COMPANY, Appellant

Supreme Court of Missouri, Second Division

December 30, 1920

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

Affirmed.

R. J Higgins and Ben T. Hardin for appellant.

(1) The court below erred in giving to the jury instruction numbered 1, for the plaintiff. It broadens the issues made by the pleadings. Zasemowich v. Am. Mfg. Co., 213 S.W. 802; State ex rel. v. Ellison, 270 Mo. 653; State ex rel. v. Ellison, 213 S.W. 461; State ex rel. v Ellison, 176 S.W. 13; Applegate v. Railway, 252 Mo. 197; Schumacher v. Breweries Co., 247 Mo. 162; Degonia v. Railway, 224 Mo. 589; Hufft v Railway, 222 Mo. 302; Price v. Met. St. Ry., 220 Mo. 454; Black v. Railway, 217 Mo. 685, 687; Beave v. Transit Co., 212 Mo. 351; Davidson v. Transit Co., 211 Mo. 361; Kirkpatrick v. Street Ry., 211 Mo. 83; McGrath v. Transit Co., 197 Mo. 105; Moore v. Street Ry., 142 Mo.App. 294. The plaintiff's petition in this case pleads specific negligence. The instruction tells the jury that "the due obligation of the receivers, their agents, servants and employees to the plaintiff was to use the highest degree of care practicable among prudent, skillful and experienced men in that same kind of business, to carry him safely." Said instruction singles out certain parts of the evidence, and comments thereon, leaving out and excluding other parts thereof, and requires the jury to find the ultimate fact of liability thereon. Eckhard v. Transit Co., 190 Mo. 620; Railroad v. Stock Yards, 120 Mo. 565; Forrester v. Moore, 77 Mo. 659; Crews v. Lackland, 67 Mo. 621. (2) The court erred in giving to the jury instruction numbered 2, for the plaintiff. It broadens the issues made by the pleadings. It went far beyond the limits of the petition. Zasemowich v. Am. Mfg. Co., 213 S.W. 802; State ex rel. v. Ellison, 270 Mo. 653; Hufft v. Railway, 222 Mo. 302; Price v. Met. St. Ry., 220 Mo. 454; Black v. Railway, 217 Mo. 685; Beave v. Transit Co., 212 Mo. 351. (3) The court below erred in giving to the jury instruction numbered 3, for the plaintiff. (a) It is entirely outside the issues made by the petition. There is no mention of any negligence of the Chicago, Rock Island & Pacific Railway Company, its agents, servants and employees, in plaintiff's petition. (b) The instruction singles out and comments upon the question of the negligence of the Rock Island Company, when no such issue was pleaded in the petition. (c) The instruction singles out the question of duty of "the agents, servants and employees in charge of the street car in question," comments upon and argues that question, and then tells the jury that if said agents, servants and employees "were negligent in any of the particulars set out in instructions numbered 1 and 2," then the plaintiff is entitled to recover from this defendant. No jury could understand such an instruction. (d) The instruction then proceeds to argue to the jury the proposition that even though they may find that the Rock Island Company, "its agents, servants and employees in charge of its train in question may have been guilty of negligence," in any degree, however gross, and in whatever way imaginable, "yet that did not relieve the agents, servants and employees of defendant from their duty to use that degree of care for plaintiff's safety, set out in the other instructions given you." Spohn v. Mo. Pac. Ry., 87 Mo. 82; Forrester v. Moore, 77 Mo. 660; Rothschild v. Am. Ins. Co., 62 Mo. 361; Jones v. Jones, 57 Mo. 142; Weil v. Schwartz, 21 Mo.App. 382; Flannery v. Railway, 44 Mo.App. 400; McClure v. School District, 66 Mo.App. 89; Melican v. Electric Co., 90 Mo.App. 602. (4) The trial court erred in giving to the jury instruction numbered 5, for the plaintiff. (a) The instruction, in the second paragraph thereof, allows the jury to "take into consideration permanent disabilities," when nothing of the kind is pleaded in the petition. (b) Again, the instruction, in the last paragraph thereof, uses this language: "After considering all these elements, you may allow plaintiff such a sum as damages," etc. In paragraphs first, second and third, all these elements had been mentioned and submitted to the jury. The language above quoted clearly assumed the existence of all the elements previously mentioned. If so, then the giving of the instruction was reversible error. Hunt v. City of St. Louis, 211 S.W. 677; Henson v. Kansas City, 210 S.W. 17; Ganey v. Kansas City, 259 Mo. 663; Ellis v. Street Ry., 234 Mo. 675; Crow v. Railway, 212 Mo. 610; Coffey v. Carthage, 186 Mo. 584; Wilkerson v. Eilers, 114 Mo. 252. (5) The verdict in this case is excessive and unjust, and should not be permitted to stand. State v. Webb, 254 Mo. 434; Campbell v. United Rys., 243 Mo. 161; Partello v. Railway, 240 Mo. 140; Lessenden v. Railway, 238 Mo. 265; Partello v. Railway, 217 Mo. 659; Black v. Met. St. Ry., 217 Mo. 686; Chlanda v. Transit Co., 213 Mo. 263; Gibney v. Transit Co., 204 Mo. 723; Smoot v. Kansas City, 194 Mo. 524; Ice Co. v. Tamm, 90 Mo.App. 202; Harper v. Railroad, 186 Mo.App. 308; Kelly v. Higginsville, 185 Mo.App. 59.

Cooper, Neel & Wright for respondent.

(1) The court below did not err in giving to the jury instruction numbered 1 for the plaintiff. It did not broaden the issues made by the pleadings. Plaintiff being a passenger and defendant a carrier, the allegations of the petition as to negligence were general. The allegation of negligence was studiously intended to be and was absolutely a general charge of negligence and cannot be contorted into anything else. Stauffer v. Railroad, 243 Mo. 303; Briscoe v. Met. St. Ry. Co., 222 Mo. 104; Price v. Ry. Co., 220 Mo. 435; Macdonald v. Met. St. Ry. Co., 219 Mo. 468; O'Gara v. Transit Co., 204 Mo. 732; Chlanda v. Transit Co., 213 Mo. 244; Loftus v. Met. St. Ry. Co., 220 Mo. 478. (2) Plaintiff's instruction 1 does not single out certain parts of the evidence and comment thereon. (3) The defendants sought by testimony introduced of its own, as well as the cross-examination of the employees of the Rock Island and of the plaintiff, to escape a verdict against itself by placing the blame for the collision on the employees of the Rock Island Railway Company. Of course, it was immaterial, so far as the plaintiff was concerned, whether the Rock Island was guilty of negligence or not. If the carrier, the defendant in this trial, was guilty of negligence, he was entitled to recover. This is the law. Bragg v. Met. St. Ry. Co., 192 Mo. 359.

OPINION

WILLIAMSON, J.

The statement of the facts in this case and paragraphs One, Two and Four of the opinion were written by White, C. Upon a motion for a rehearing, Paragraph Three, as written by the learned commissioner, failed to meet the approval of the court, and a rehearing having been granted, the case was assigned to the present writer, who has re-written the Third Paragraph, adopted the remainder of the opinion as originally written, and added the Fifth Paragraph.

"The suit in this case is for damages on account of injuries received by the plaintiff in a collision of the street car on which he was riding, with a freight train of the Chicago Rock Island & Pacific Railway Company.

"The street car belonged to the Metropolitan Street Railway Company and was in charge of the receivers of that company; afterwards all the assets of the company were sold to the defendant company, which assumed all liability of the receivers to the plaintiff herein.

"The suit originally was against the receivers of the Metropolitan Street Railway Company and the Chicago, Rock Island & Pacific Railway Company. There was a verdict in favor of the plaintiff against the receivers for $ 5,500, and in favor of the defendant Rock Island Railway Company. The receivers appealed, the judgment was reversed and the cause remanded by the Kansas City Court of Appeals. Afterwards the Kansas City Railways Company was substituted as defendant, and on a second trial against it alone there was a verdict and judgment for plaintiff for $ 10,000, bringing the case within the jurisdiction of this court, to which appeal was then taken.

"After two o'clock in the morning on the night of April 5, 1915, the plaintiff, accompanied by his wife, took passage on what was termed the "Argentine car" of the Metropolitan Street Railway Company. This car, going west, passed over the Kaw River Bridge. There were two parallel street railway tracks at that point, and the car on which the plaintiff was riding was on the north track. About 40 or 50 feet west of the Kaw River bridge the Kansas City Southern Railway track crossed the tracks of the Street Railway Company, and about 50 or 60 feet further west the track of the Rock Island also crossed them. These railway tracks extended around a curve to the north, and the Rock Island train which struck the street car came from that direction.

"After crossing the Kaw River bridge and before reaching the Southern Railway track, the car stopped. The conductor got off, went forward to the Southern track, and "flagged the motorman across." The conductor then went forward to within ten or twelve feet of the Rock Island track, and again gave the signal for the motorman to come across. After giving the signal he walked back four or five steps and, as the car passed him, he stepped on the back end and gave two bells to indicate that he was on board. The car was about half way across the railway track when it was struck by the rear end of the backing freight train, The side of the car was caved in, the seats knocked about, and the plaintiff was seriously injured.

"The colliding freight train contained twenty-eight cars, the engine which propelled it being at the other end. The evidence is...