Bowers v. Public Service Co., 28917.

CourtUnited States State Supreme Court of Missouri
Citation41 S.W.2d 810
Docket NumberNo. 28917.,28917.
PartiesMILLARD O. BOWERS, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY.
Decision Date05 September 1931

Appeal from Jackson Circuit Court. Hon. Willard P. Hall, Judge.

AFFIRMED AND REMANDED.

Harry G. Kyle and Walter A. Raymond for appellant.

(1) The court erred as a matter of law in sustaining defendant's motion for new trial. Manthey v. Contracting Co., 277 S.W. 932; Yuronis v. Wells, 17 S.W. (2d) 522. (a) The court erroneously held the Kansas Planking Statute a complete defense to this defendant. Fowler v. Ry. Co., 285 Ill. 196, 120 N.E. 636; Jenree v. St. Ry. Co., 86 Kan. 479, 121 Pac. 510, 39 L.R.A. (N.S.) 1112; Young v. Madison County, 115 N.W. 23 (Wis.) 24; Brown v. Nichols, 93 Kan. 737, 145 Pac. 561, L.R.A. (N.S.) 1915D 329. (b) The court erroneously held the Kansas Planking Statute established ordinary vehicular traffic as five tons or less combined weight as a matter of law. Walker v. Village of Ontario, 111 Wis. 113, 86 N.W. 566; Brown v. Nichols, 93 Kan. 737, 145 Pac. 561, L.R.A. 1915D 329; Smith v. Howard, 42 R.I. 126, 105 Atl. 649; Higgins v. Garfield County, 186 N.W. (Neb.) 349; Yordy v. Marshall County, 45 N.W. (Iowa) 1043; Gehringer v. County of Lehigh, 231 Pac. 497, 80 Atl. 987, 35 L.R.A. (N.S.) 1130; T.J. Carter & Co. v. Town of Leaksville, 94 S.E. 7, 174 N.C. 561; Nelson v. City of Rockford, 186 Ill. App. 289. (c) The court erroneously held the passage of the first truck over the bridge was the proximate cause of plaintiff's injuries as a matter of law. Buckner v. Horse & Mule Co., 221 Mo. 700; Shafir v. Sieben, 233 S.W. 424; City of Atchison v. Achesen, 57 Pac. 250; Gross v. Rosencrans, 108 Kan. 350, 195 Pac. 859; Barshfield v. Vurklich, 108 Kan. 761, 197 Pac. 206; Union Street Railway v. Stone, 54 Kan. 83, 37 Pac. 1014; Kansas City v. Strongstron, 53 Kan. 438; Buckner v. Horse & Mule Co., 221 Mo. 700; Start v. National Newspapers' Assn., 253 S.W. 43. (d) The court erred in holding as a matter of law that the defendant was not liable for plaintiff's injuries unless the receivers had actual notice of the breaking of the bridge between the time the first truck crossed and the time of plaintiff's injuries. Jansen v. City of Atchison, 16 Kan. 384; City of Salina v. Trosper, 9 Kan. App. 561; Kansas City v. Bradbury, 45 Kan. 381; Megson v. St. Louis, 264 S.W. 34; Board of Comms. of Allen Co. v. Crenston, 32 N.E. 737; Perry v. Clarke County, 120 Iowa, 109, 94 N.W. 456; Brooks v. Van Buren County, 135 N.W. 1112.

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

(1) The court did not err as a matter of law in sustaining defendant's motion for a new trial. Farrell v. Transit Co., 103 Mo. App. 456; Rodan v. Transit Co., 207 Mo. 392; Gould v. St. John, 207 Mo. 619; Hurley v. Kennally, 186 Mo. 225; Parker v. Britton, 133 Mo. App. 270; Loevenhart v. Railway, 190 Mo. 342; McCarty v. Transit Co., 192 Mo. 396; Ridge v. Johnson, 229 Mo. App. 541; Byrd v. Vanderburgh, 168 Mo. App. 112; Smoot v. Kansas City, 194 Mo. 513; Secs. 1424, 1542, 1453, R.S. 1919; Lord v. Delano, 188 S.W. 93; Standard Co. v. White, 122 Mo. 258. (2) The court made no erroneous interpretation of the Kansas Planking Statute. As applied to the weight of the evidence it was a complete defense. The issues of fact as related to the statute, were properly submitted to the jury in Instruction 6-D. Sec. 68-1129. R.S. Kan. 1923; White v. Kansas City, Kansas, 102 Kan. 495; Costello v. County, 91 Kan. 532; Rothrock v. Borg, 98 Kan. 286; Smith v. Kansas City, Kansas, 120 Kan. 598. (a) The statute provides that drivers of loads exceeding five tons in weight shall plank a bridge; that drivers of loads not exceeding five tons are exempt from the requirement. The court did not attempt to define ordinary vehicular traffic. He submitted the issues of fact in the light of the statute, which was entirely proper. Sec. 68-1129, R.S. Kan. 1923. (b) The court did not erroneously hold as a matter of law that the passage of the first truck over the bridge was the proximate cause of the injury. The court submitted the issues of fact to the jury and granted the new trial because the verdict of the jury in his judgment was against the weight of the evidence. (c) Instruction 6-D was properly given and reflects the law relating to the question of notice of the breaking of the bridge by the first truck. (3) The demurrer to the evidence should have been sustained for the reason that plaintiff's own evidence barred him from recovery. While that was not assigned by the court as a reason for sustaining the motion for new trial, yet under the law if the demurrer should have been sustained the action of the court should be affirmed. 26 R.C.L. 1075; Patterson v. Life Ins. Co., 164 Mo. App. 157; Craine v. Street Rys., 246 Mo. 393; Skirvin v. McKamey, 237 S.W. 858; Arel v. First Nat. Fire Ins. Co., 195 Mo. App. 165, 190 S.W. 78; Gunder v. Huggans, 233 Pac. (Mont.) 901; Robenon v. Turner, 268 S.W. (Ky.) 341; Northwest Sec. Co. v. Schneckloth, 202 S.W. (Iowa) 197; Boudeman v. Arnold, 200 Mich. 162; Link v. Jackson, 158 Mo. App. 90. (4) The demurrer offered by defendant at the close of the whole case should have been sustained for the additional reasons (a) plaintiff failed to prove any duty or obligation upon the part of defendant to maintain the bridge; (b) plaintiff charged, but failed to prove, that the franchise was in full force and effect; (c) the franchise had terminated. The laws of Kansas prohibited any new or extension agreement except by way of ordinance; (d) the franchise itself provides that it shall not be renewed or extended except by ordinance; (e) the order of the court appointing the receivers forbids authority to make any contract touching the management of the railways without the order or approval of the court; (f) plaintiff cannot rely upon implied contract or waiver, for two reasons: first, he plead specific contract and second, the testimony fails to establish even an implied contract. Chap. 13, Art. 28, Sec. 13-2801, Kansas Statute; Laighton v. Carthage, 175 Fed. 145; Cincinnati Inclined Plane Ry. Co. v. Cincinnati, 44 N.E. 327, 52 Ohio St. 609; Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N.W. 1081; Nellis on Street Surface Railroads, 124, Sec. 18; Detroit United Ry. v. Detroit, 229 U.S. 39; Scott County Road Co. v. Hines, 215 U.S. 336; Henry L. Doherty & Co. v. Toledo Railways & Light Co., 254 Fed. 601; Central Power Co. v. Central City, 282 Fed. 998; Illinois Trust & Savings Bank v. Arkansas City Water Co., 67 Fed. (Kan.) 196; 26 C.J. 1047; Kalb v. Berger Mfg. Co., 165 Fed. 895; Met. Trust Co. v. North Carolina Lbr. Co., 162 Fed. 170; St. Joseph Gas Co. v. Barker, 243 Fed. 206; Dickinson v. Willis, 239 Fed. 171; Peabody Coal Co. v. Nixon, 226 Fed. 20; Stone v. Union Tr. Co., 183 Mo. App. 261; Landon v. Public Utilities Commission, 245 Fed. 950; Tripp v. Boardman, 49 Iowa, 410; Lehigh Coal & Nav. Co. v. Railway Co., 35 N.J. Eq. (8 Stew.) 426; Meyer v. Levon, 1 App. Div. 116, 37 N.Y. Sup. 67; 34 Cyc. 242.

FRANK, J.

Action by plaintiff, appellant here, to recover damages for alleged personal injuries. The verdict of the jury was in favor of plaintiff in the sum of $15,000. The trial court set the verdict aside and granted defendant a new trial. Plaintiff appealed.

Defendant's motion to dismiss the appeal herein on the ground that plaintiff's statement of the case does not comply with the rules of this court was taken with the case. After duly considering this motion, we have concluded that the appeal should not be dismissed and accordingly overrule the motion.

Prior to 1920 the Kansas City Railways Company owned, maintained and operated a system of electric street railways in Kansas City, Missouri, and Kansas City, Kansas. On October 27, 1930, said company was placed in the hands of receivers by the United States court, and said receivers were operating said street railways at the time plaintiff was injured in October, 1924. Later the properties of said railways company were purchased by and transferred to the Kansas City Public Service Company subject to liabilities against the receivers, and said Kansas City Public Service Company was thereupon substituted as the party defendant in this case.

In December, 1902, Kansas City, Kansas, granted to the company then owning said railway system, its successors and assigns, a franchise which authorized the operation of said railway system in said city for a period of twenty years. This Franchise: franchise expired in December, 1922, and was not Expiration: renewed or extended. The franchise provided that the Continued railway company should maintain in good condition Exercise. and safe for public travel all parts of bridges over which it operated its street cars. This provision reads as follows:

"Said railway company shall also refloor, repair and maintain in good condition and safe for public travel all parts of the aforesaid bridges and viaducts, including the viaduct approached."

One of the bridges on which the railway company maintained a double car track over which it operated its street cars was known as Jersey Creck Bridge. On October 25, 1924, while plaintiff was driving a truck loaded with sand over and across said bridge, the stringers beneath the bridge gave way and plaintiff and his truck fell through the bridge to the rocky bed of the creek about thirty feet below, and he received the injuries for which he sues.

Defendant, respondent here, contends that its demurrer to the evidence should have been sustained. If this contention is sound, the trial court was warranted in granting defendant a new trial for that reason, if for no other. The first reason advanced by defendant as to why its demurrer should have been sustained is that it was under no duty to maintain the bridge in question because the franchise which required it to do so expired some two years before plaintiff was injured. The...

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