Bryant v. Kansas City Rys. Co.

• Decision Date: 19 February 1921
• Docket Number: No. 21468.,21468.
• Citation: 286 Mo. 342,228 S.W. 472
• Parties: BRYANT v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

228 S.W. 472

286 Mo. 342

BRYANT v. KANSAS CITY RYS. CO.

No. 21468.

Supreme Court of Missouri, in Banc.

February 19, 1921.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Revis E. Bryant, by his next friend, against the Kansas City Railways Company. Judgment for plaintiff for $15,000 after he had remitted $15,000 from the amount awarded by the verdict, and defendant appeals. Affirmed on condition that plaintiff remit $1,500 from the judgment rendered; otherwise, reversed and cause remanded.

Richard J. Higgins, of Kansas City, Kan., and Charles N. Sadler, of Kansas City, Mo., for appellant.

Barry G. Kyle, of Kansas City, Mo., for respondent.

GRAVES, J.

Action for personal injuries. Plaintiff, a child less than four years old at the time of the injury, and who sues herein by his father as next friend, was run over by one of defendant's cars on West Thirty-Ninth street in Kansas City, Mo. West Thirty-Ninth street runs east and west, and the accident occurred in the block to the east of Bell street, a north and south street, crossing West Thirty-Ninth street. The negligence pleaded is that covered by the humanitarian rule. As the result of the accident the left leg of plaintiff had to be amputated. 'Upon a trial before a jury he secured a verdict of $30,000, but upon motion for new trial the trial court required plaintiff to remit $15,000, which was done, and judgment was entered for $15,000. A number of assignments of error have been made here, and those of substance, together with the relevant facts, will be noted in the course of the opinion.

H. The appellant contends that its demurrer to the evidence should have been sustained for two reasons: First, because the Petition fails to state a cause of action; and, secondly, because the evidence fails to show negligence upon the part of the defendant. Of these in order.

The petition does not aver that this child, then 3½ years old, was oblivious of his danger, in crossing from the south to the north side of West Thirty-Ninth street, at the time of the accident. It is true that the petition does not so aver, but it does aver the age of the child. This was sufficient. The parents of this child brought suit against the defendant for loss of service and medical attention. Bryant et ux. v. Kansas City Rys. Co. (App.) 217 S. W. 632. The same point was made there, and ruled against defendant. The rule of the Kansas City Court of Appeals in that case is sound, and we approve it. Such ruling is sustained by the cases in the opinion cited.

The other question requires some more of the facts. Defendant operated a double street car line on West Thirty-Ninth street. The accident occurred at about 3 p. m. of March 7, 1917. There was no fog, but the sky was partially clouded. The little child was plainly visible by witnesses as he approached the danger point. The west-bound car which did the injury was going up a 2¼ per cent. grade from Genesee street on the east to the point of accident, about 50 feet east of Bell street. The distance between these two north and south streets is about 270 feet. The position of appellant is that the child darted from behind a passing eastbound car, immediately in front of the west-bound car. If this were true, there could be no liability under the humanitarian rule, or any other rule of negligence. The trouble is that there is evidence tending to show a contrary state of facts, and upon this evidence the jury has found against defendant. The evidence conflicts as to just when the west-bound car (the car doing the injury) passed the east-bound car within the space of this block between Bell street and Genesee street. There is evidence tending to show that the last east-bound car passed this west-bound car at a point 50 feet west of Genesee street. This would leave ample space for the motorman to see the little boy as he came from the south side of West Thirty-Ninth street, as the point a accident is estimated at 50 to 75 feet east of Bell street, and the block space at 270 feet. The car was running at a very slow speed, variously estimated at from 4 to 10 miles per hour. It could have been, upon this upgrade, stopped very quickly, with safety to passengers. The evidence in the present record does not differ substantially from the evidence (upon this point) in Bryant v. Ry. Co., supra, and the Court of Appeals ruled that there was ample evidence upon which to take the case to the jury under the humanitarian rule. The jury could (under the evidence) find that a passing east-bound street car did not obstruct the view of the motorman, and they have so found. We conclude that there was no error in submitting the plaintiff's case to a jury for determination, and that defendant's demurrer to the evidence was properly overruled.

II. The next contention is that there was error in the giving of instruction No. 1, for the plaintiff. This instruction reads:

"The court instructs the jury that if you find and believe from the evidence in this case that plaintiff, Revis Efton Bryant, is a minor of about four years of age, and that Homer F. Bryant is acting as next friend of said Revis Efton Bryant, for the prosecution of this suit, and if you further find and believe from the evidence that on March 7, 1917, West Thirty-Ninth street was one of the public streets in Kansas City, Mo., and that on said 7th day of March, 1917, at about 3:30 p. m. thereof, said plaintiff was crossing West Thirty-Ninth street, going north, at or near a point about 50 feet east of the curb line, on the east side of Bell street, and that while on or near the tracks of defendant's street railway, and while crossing said street at said point, if so, one of the defendant's west-bound electric cars negligently and carelessly, if so, ran against plaintiff and over his left leg, thereby so injuring said left leg that it had to be, and was as a direct result thereof, amputated, and if you further find and believe from the evidence that the motorman in charge of said car saw plaintiff, or by the exercise of ordinary care and caution could have seen plaintiff, on or near said track, and in a position of imminent peril of being struck by said car and oblivious of his peril, if you find he was, within reasonable time, if you find there was, by the exercise of ordinary care to have slowed up or stopped said car, and avoided said injury, if so, and without injury to the people upon said car, and failed negligently so to do, if so, and that plaintiff's injury was the direct result of such negligence, if any, and that in that case your finding must be for the plaintiff and against the defendant. You are further instructed that by `ordinary care,' as used in the instructions herein, is meant such care as an ordinary prudent and careful person would exercise under the same or similar circumstances, and that by `negligence,' as used in the instruction herein, is meant a lack or want of said ordinary care."

We regret to have to quote the whole of this instruction, but the objections are such that it should be done. In the argument on this Instruction it is said:

"First. It is involved, confusing, and misleading, and is so drawn that it is likely to, and doubtless did, mislead a jury of laymen. A reading of this instruction as above set out will fully demonstrate our contention along this line.

"This instruction is also erroneous, in that it does not follow the allegations of the petition, in requiring the jury to find the plaintiff was oblivious of his peril."

A reading of the instruction does not impress us as it has counsel. It is rather verbose, but we hardly think it misleading. A very similar instruction has passed muster in our court in banc. Holmes v. Ry. Co., 207 Mo. loc. cit. 160, 105 S. W. 624.

Nor do we think the clause used therein "oblivious of his peril" makes the instruction bad, on the theory that it is broadening the issues made by the pleading. The petition was good, without the use of this expression, because a child of such tender years would have no idea of peril either imminent or otherwise. His very age made him oblivious to danger. The allegation as to his age was in fact an allegation that he was oblivious to the imminent peril. The instruction required the jury to find him to be about four years of age, and a child of that age would be oblivious of danger. As a fact he was less than four years of age. The instruction in this regard cannot be held to be so erroneous as to justify a reversal. Another complaint is that the term "imminent peril" is not defined. These are ordinary English words and require no definition. Other objections made to this instruction are without merit. The instruction fairly presents the law of the case.

III. The next objection is lodged against plaintiff's instruction No. 2, which reads:

"If the physical facts, as shown by the evidence, in this case, and common observation and experience, are in conflict with and contrary to the testimony of any witness in the case, then it is your duty to take into consideration such physical facts and common observation and experience and to disregard the testimony of any such witness in conflict therewith and contrary thereto."

It is hard to grasp just the contention here, but as we gather it the complaint is that the instruction directed the jury to disregard all of the testimony of the witness, if any portion thereof conflicted with physical facts and common observation. If the instruction did this, is would be error, in so far as it directed the absolute exclusion of such portions of the evidence of the witness which did not conflict with physical facts and common observation. The jury should have been left their discretion to believe or not believe such portions of the testimony of such witness as did not conflict with physical facts and common observation. This under the rule which leaves it to the jury to determine what parts of the testimony of such witness they...