Bootee v. Kansas City Public Service Co.

• Decision Date: 04 December 1944
• Docket Number: 39171
• Parties: Miles Alvin Bootee, Appellant, v. Kansas City Public Service Company, a Corporation
• Court: Missouri Supreme Court

183 S.W.2d 892

353 Mo. 716

Miles Alvin Bootee, Appellant, v. Kansas City Public Service Company, a Corporation

No. 39171

Supreme Court of Missouri

December 4, 1944

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Reversed and remanded.

E E. Thompson, Alfred H. Osborne, Thompson & Osborne, Charles Rubins and Lillie Knight for appellant.

(1) The trial court erred in giving defendant's Instruction 2 for the reason that there was insufficient evidence upon which to base a sole cause instruction even had the instruction been a proper one under that theory. Semar v Kelly, 176 S.W.2d 289; Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Fassi v. Schuler, 349 Mo. 160, 159 S.W.2d 774; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Crews v. K.C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Gould v. Chicago, B. & O.R. Co., 315 Mo. 713, 290 S.W. 135. (2) Said instruction is a mere abstract statement of law, and does not hypothesize specific facts excluding defendant's negligence and justifying a verdict for defendant on the theory that plaintiff's negligence was the sole cause of his injuries. State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Semar v. Kelly, 176 S.W.2d 289, 352 Mo. 157; Stanich v. Western Union Telegraph Co., 348 Mo. 188, 153 S.W.2d 54; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Carson v. Evans et ux., 351 Mo. 376, 173 S.W.2d 30; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60. (3) Said instruction erroneously hypothesized defendant's duty under the humanitarian doctrine and is confusing and misleading. Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33; Gray v. Columbia Terminal Co., 331 Mo. 73, 52 S.W.2d 809; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440. (4) The trial court erred in admitting hearsay evidence offered by the defendant, consisting of hospital records of the Bell Memorial Hospital, now the University of Kansas Hospital, located in the State of Kansas, purporting to relate to treatment and examinations of the plaintiff. Secs. 9777, 1825, R.S. 1939; Allen v. American Life & Acc. Ins. Co., 119 S.W.2d 450; Newkirk v. City of Tipton, 234 Mo.App. 920, 136 S.W.2d 147; Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591; McClintock v. Skelly Oil Co., 232 Mo.App. 1204, 114 S.W.2d 181; State v. Pagels, 92 Mo. 300, 4 S.W. 931; Macan v. Mo. Mut. Ass'n, 60 S.W.2d 402; State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667; Aronovitz v. Arky, 219 S.W. 620; Conaghan v. Dean, 96 S.W.2d 924; Martin v. Springfield Water Co., 128 S.W.2d 674.

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

(1) This is not a last chance case. Krause v. Pitcairn, 167 S.W.2d l.c. 76; Hutchinson v. Thompson, 167 S.W.2d 96; Zickefoose v. Thompson, 148 S.W.2d 784; Robards v. K.C. Public Serv. Co., 177 S.W.2d 709; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Knorp v. Thompson, 175 S.W.2d 889; Thomas v. Stott, 114 S.W.2d 142. (2) The sole cause Instruction 2 was properly given. Boyce v. Donnellan, 168 S.W.2d l.c. 124; Borgstede v. Waldbauer, 88 S.W.2d 373; Allen v. Cascio, 176 S.W.2d 552; Martin v. Graham Co., 176 S.W.2d 842; Bashkow v. McBride, 177 S.W.2d 637; Johnson v. Dawidoff, 177 S.W.2d 467; Stanich v. Western Union, 153 S.W.2d 54; Doherty v. St. Louis Butter Co., 98 S.W. 742; Hopkins v. Highland Dairy Farms, 159 S.W.2d 254; Shields v. Keller, 153 S.W.2d 60. (3) The fact that the sole cause Instruction 2 did not refer to the last chance Instruction A did not affect the validity of Instruction 2. Scott-Force Hat Co. v. Hombs, 127 Mo. 393; Wooldridge v. Scott County Milling Co., 102 S.W.2d 958; Morris v. Equitable, 102 S.W.2d 569; Carroll v. Co., 107 Mo. 653; Lappin v. St. Louis, etc., 33 S.W.2d 1025; Davidson v. Co., 211 Mo. l.c. 357; Smith v. Railroad Co., 30 S.W.2d 1077; King v. Rieth, 108 S.W.2d 1; Neagle v. City of Edina, 53 S.W.2d 1077; Hollister v. A.S. Aloe Co., 156 S.W.2d 609. (4) The whole record shows that the judgment was for the right party and should be affirmed; that even if plaintiff's criticism of Instruction 2 were technically correct, still plaintiff was not injured thereby because he was not entitled to recovery. Ozark Co. v. Hays, 105 Mo. l.c. 153; McGuire v. Nugent, 103 Mo. 161; Sec. 1228, R.S. 1939; Borrson v. M.-K.-T. Ry Co., 172 S.W.2d 835. (5) The court did not err in admitting in evidence defendant's Exhibit 2, consisting of hospital records from the University of Kansas Hospital. Gately v. St. Louis-S. F. Railroad Co., 56 S.W.2d 54; Wolfson v. Cohen, 55 S.W.2d 677; Garvey v. Piel, 43 S.W.2d 774.

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

OPINION

DALTON

Action for $ 10,000 damages for personal injuries alleged to have been sustained on account of the negligence of defendant. The jury returned a verdict for defendant and judgment was entered accordingly. Plaintiff has appealed.

On June 19, 1942, at about 12:30 a.m., while plaintiff was crossing 15th street at or near Woodland avenue in Kansas City, he was struck and injured by one of defendant's trolley buses. Plaintiff's petition charged both primary and humanitarian negligence, but the cause was submitted solely on humanitarian negligence in failing to stop the trolley bus, slacken its speed and change its course or swerve it and thereby avoid injuring plaintiff after defendant's trolley bus operator saw, or by the exercise of ordinary care could have seen, plaintiff in a position of imminent peril and oblivious thereto.

Appellant assigns error on the giving of instruction 2 (a sole cause instruction requested by defendant) and on the admission in evidence of certain records of the Bell Memorial Hospital of Kansas, offered by defendant. Respondent contends that the instruction was correct and the evidence admissible; that, in any event, "plaintiff was not injured because he was not entitled to recover," regardless of the alleged errors; and that "the judgment was for the right party and should be affirmed." If plaintiff did not make a case for the jury, the errors assigned are immaterial. Bello v. Stuever (Mo. Sup.), 44 S.W.2d 619, 620; Hendricks v. Weaver (Mo. Sup.), 183 S.W.2d 74. A statement of the evidence most favorable to plaintiff is required.

According to plaintiff, he was walking north, "kind of fast," on the west side of Woodland avenue, crossing 15th street on the green traffic light and watching the headlights of a southbound car on Woodland avenue. Before starting across, he had observed defendant's westbound trolley bus standing on the east side of the intersection, where it had stopped to discharge passengers. He did not notice the bus again until he had reached a point about 6-8 feet from the north curb of 15th street (at northwest corner of the intersection), when he saw defendant's trolley bus bearing down upon him from the east, 6-8 feet distant, and at a speed of 8-10 miles per hour. Plaintiff was then in the middle of the path of the bus and he jumped north in an effort to get out of the way, but he was struck by the right front end of the bus and was knocked down and injured. The bus did not swerve, change its course or speed, nor sound any signal before plaintiff was struck.

Plaintiff was a colored man 19 years of age. He was wearing a blue suit and a pearl gray hat. Since 1931 he had suffered with bilateral leukoma, referred to as a film or scum over both eyes, a milky-white opacity of the cornea, which materially affected his ability to see. He testified, however, that, on the night in question, he was able to see the north curb line of 15th street when he was 40 feet away from it; that he saw the trolley bus on the opposite side of 15th street and across Woodland avenue, when he started to cross 15th street; and that he was able to observe the traffic lights at the intersection.

There was much conflicting evidence concerning the existing weather conditions. It had been sprinkling rain and, as plaintiff went north across 15th street, it began to rain harder. It was not raining "real hard." The wind was blowing some, "blowing light." It had been a stormy night, but "had kind of quieted down." For the purpose of determining whether plaintiff made a case for the jury, we must disregard other evidence of plaintiff's and defendant's witnesses concerning the extreme severity of the storm at the time of the collision, since the jury could disbelieve such evidence. As plaintiff walked north across 15th street, there was fair visibility. A garage man, who was leaving his place of business to go home, was standing by his parked automobile on the east side of Woodland avenue (75 feet south of 15th street). He looked northwest, at an angle across Woodland avenue (30 feet wide) and partly across 15th street (76 feet wide), and saw plaintiff walking "pretty fast" north across 15th street and along the west side of Woodland avenue. When plaintiff was about 25 feet from the north curb of 15th street, the bus was about 15 feet away to the east and was approaching at 10 to 12 miles per hour. The witness saw the bus strike plaintiff and then go on some 20 feet beyond before it stopped. Certain witnesses on the bus testified that they were able to "see far enough out (of the bus) to recognize any buildings around the immediate vicinity," on both sides of the bus, and to observe the red traffic signal on Woodland avenue, while the bus was stopped, and the green traffic light when the bus started across Woodland avenue. One passenger observed an "object" moving across 15th street, when the bus started across Woodland avenue, and the "object", it developed, was plaintiff, "a pedestrian crossing north in the regular crossing lane on the west side of Woodland."

The trolley bus in question was a rubber tired vehicle...