Bryant v. Kansas City Railways Co.

• Decision Date: 19 February 1921
• Parties: REVIS E. BRYANT, a Minor, by HOMER F. BRYANT, His Next Friend, v. KANSAS CITY RAILWAYS COMPANY, Appellant
• Court: Missouri Supreme Court

228 S.W. 472

286 Mo. 342

REVIS E. BRYANT, a Minor, by HOMER F. BRYANT, His Next Friend, v. KANSAS CITY RAILWAYS COMPANY, Appellant

Supreme Court of Missouri

February 19, 1921

Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.

Affirmed (conditionally).

Richard J. Higgins and Charles N. Sadler for appellant.

(1) The court erred in overrulng the demurrer interposed at the close of plaintiff's evidence, and renewed at the close of all the evidence. (a) The petition failed to state facts sufficient to constitute any cause of action. By omitting to charge obliviousness, no cause of action was stated. Knapp v. Dunham, 195 S.W. 1062; Kamoos v. Ry Co., 202 S.W. 434; Haines v. Ry. Co., 203 S.W 630; Rubick v. Sandler, 219 Mo.App. 401. (b) Even if the petition stated a cause of action, the entire evidence failed to show any negligence upon the part of defendant. Markowitz v. Railroad, 186 Mo. 351; Grout v. Ry Co., 125 Mo.App. 552; Roenfelt v. Ry. Co., 180 Mo. 566; Boyd v. Ry. Co., 105 Mo. 382; Haffey v. Ry. Co., 135 S.W. 937; Mockowik v. Ry. Co., 196 Mo. 550; Barnard v. Ry. Co., 137 Mo.App. 684; Van Bach v. Ry. Co, 171 Mo. 347; Gessner v. Ry. Co., 137 Mo.App. 47; Banks v. Ry. Co., 217 S.W. 488; Oglesby v. Ry. Co., 177 Mo. 272. (c) Evidence contrary to the general knowledge, opposed to physical facts or contradictory of itself is not entitled to any probative force. Guffey v. Harvey, 179 S.W. 731; Schaub v. Ry. Co., 133 Mo.App. 448; Sexton v. Ry. Co., 245 Mo. 272-3; Stafford v. Adams, 113 Mo.App. 721; Oglesby v. Ry. Co., 177 Mo. 272; Weltmer v. Bishop, 171 Mo. 116; Scroggins v. Ry. Co., 138 Mo.App. 215; Daniels v. Ry. Co., 177 Mo.App. 280; Strack v. Tel. Co., 216 Mo. 601; DeMoet v. Storage Co., 121 Mo.App. 92. (2) The court erred in giving instructions asked by plaintiff. Knapp v. Dunham, 195 S.W. 1062; Kamoos v. Ry. Co., 202 S.W. 434; Haines v. Ry. Co., 203 S.W. 630; Boles v. Dunham, 208 S.W. 480; Kirn v. Harvey, 208 S.W. 479; Simms v. Dunham, 203 S.W. 652; Senn v. Ry. Co., 108 Mo. 142; Toncrey v. Ry. Co., 129 Mo.App. 596; Martin v. Wigglesworth, 193 S.W. 906; Price v. Breckenridge, 92 378; Greer v. Ry. Co., 52 Mo. 316; Klamp v. Rodenwall, 19 Mo. 449. (3) The court erred in admitting incompetent, irrelevent and immaterial evidence offered by plaintiff. Senn v. Ry. Co., 108 Mo. 142; Hall v. Coal & Coke Co., 260 Mo. 351; Glasgow v. Ry. Co., 150 Mo. 51. (4) The court erred in permitting the parents of plaintiff, over the objections of defendant, to keep plaintiff in and around the court room during the trial, thus exhibiting him to the jury. State v. Winnett, 92 P. 904; 40 Cyc. 2213; Easley v. Ry. Co., 113 Mo. 246; Clack v. Subway Co., 138 Mo.App. 216; Ottoman v. Ry. Co., 32 Kan. 419; Stampofski v. Steffens, 79 Ill. 303; Bowle v. Washington, 62 Mo. 302; Harrington v. Railroad, 157 Mass. 579; Aldrich v. Wetmore, 52 Minn. 164; Woodbury v. Anoka, 52 Minn. 329; Peppercorn v. Black River Falls, 89 Wis. 38; Luquer v. Bunnell, 170 N.Y.S. 665; Wooldridge v. Wright, 105 Ky. 247; Curry v. Quast, 166 N.Y.S. 366. (5) The court erred in refusing to discharge the jury. Clack v. Subway Co., 138 Mo.App. 216. (6) The verdict is excessive. Applegate v. Ry. Co., 252 Mo. 173; Kinney v. Ry. Co., 169 S.W. 23; Ostertag v. Ry. Co., 261 Mo. 463; Newcomb v. Ry. Co., 182 Mo. 727; Farrar v. Ry. Co., 155 S.W. 439; Hurst v. Railroad, 219 S.W. 566; Hollenback v. Ry. Co., 141 Mo. 97; Brady v. Railroad, 206 Mo. 509; Swearingen v. Mining Co., 212 Mo. 524; Harris v. Ry. Co., 200 S.W. 111; McWhirt v. Ry. Co., 187 S.W. 830; Lessenden v. Ry. Co., 238; Mo. 247; Yost v. Ry. Co., 245 Mo. 252; Willitts v. Ry. Co., 221 S.W. 65; Bryant v. Ry. Co., 217 S.W. 632. (7) The verdict as rendered by the jury is so grossly excessive as to show passion and prejudice upon the part of the jury. Willitts v. Ry. Co., 221 S.W. 65; Ganz v. Ry. Co., 220 S.W. 497; Ossenberg v. Chemical Co., 218 S.W. 421; Riggs v. Ry. Co., 212 S.W. 878; Hulse v. Ry. Co., 214 S.W. 155; Young v. Lusk, 268 Mo. 640; Davenport v. Electrical Co., 242 Mo. 11; Lundahl v. Kansas City, 209 S.W. 564; Henson v. Kansas City, 210 S.W. 13; Turnbow v. Ry. Co., 211 S.W. 41; Johnson v. Brick Co., 205 S.W. 615; Haynes v. Trenton, 108 Mo. 123; Nichols v. Glass Co., 27 S.W. 516; Cambron v. Railroad, 165 Mo. 543; Furnish v. Railroad, 102 Mo. 438; Chitty v. Railroad, 166 Mo. 435; Taylor v. Railway, 185 Mo. 239; Stoltze v. Railroad, 188 Mo. 581; Chlanda v. Transit Co., 112 S.W. 249; Partello v. Ry. Co., 217 Mo. 645; Norris v. Ry. Co., 239 Mo. 659; Campbell v. Ry. Co., 243 Mo. 141; Clark v. Ry. Co., 234 Mo. 396; Rodney v. Ry. Co., 127 Mo. 676; Lyons v. Railroad, 253 Mo. 143; Dominick v. Coal Co., 255 Mo. 305; Holzmer v. Ry. Co., 169 S.W. 102; Gibney v. Transit Co., 204 Mo. 704; Morrell v. Laurence, 203 Mo. 363; Adams v. Ry. Co., 100 Mo. 569; Markey v. Ry. Co., 185 Mo. 364; Waldher v. Railroad, 87 Mo. 37; Welborn v. Ry. Co., 170 Mo.App. 351; Wellman v. Ry. Co., 219 Mo. 154; McDonald v. Railroad, 164 Mo.App. 56; Aaron v. Ry. Co., 159 Mo.App. 307; Stokes v. Ry. Co., 173 Mo.App. 676; Guilbert v. Kessinger, 173 Mo.App. 680; Dent v. Traction Co., 145 Mo.App. 61; Davidson v. Transit Co., 211 Mo. 320; Clifton v. Railroad, 232 Mo. 708; Moore v. Transit Co., 226 Mo. 689; Waddell v. Ry. Co., 111 S.W. 542.

Harry G. Kyle for respondent.

(1) The trial court did not err in overruling the appellant's demurrer, offered at the close of plaintiff's case, and again at the close of the entire case. Simon v. Ry. Co., 231 Mo. 65; Cytron v. Transit Co., 205 Mo. 692; Cornovski v. Transit Co., 207 Mo. 263; Wise v. Transit Co., 198 Mo. 546; Koenig v. Ry. Co., 194 Mo. 564; Levin v. Ry. Co., 140 Mo. 624; Schmidt v. Ry. Co., 163 Mo. 645; Meeker v. Ry. Co., 178 Mo. 173; Wagner v. Ry. Co., 160 Mo.App. 334; Childers v. Ry. Co., 141 Mo.App. 685; Bryant v. Rys. Co., 217 S.W. 633. (2) Respondent's instructions correctly declared the law applicable to this case. Crowl v. Linseed Co., 255 Mo. 330; Raming v. Railway, 157 Mo. 477; Knorpp v. Wagner, 195 Mo. 637; Turnbow v. Rys. Co., 211 S.W. 41; Bryant v. Rys. Co., 217 S.W. 633; Salmons v. Railway, 197 S.W. 35. (3) The evidence admitted was within the allegations of the petition. Strother v. Dunham, 193 S.W. 882. (4) The court did not err in permitting plaintiff to remain in and around the court-room. Art. 2, sec. 10, Mo. Constitution; Sec. 3862, R. S. 1909; Boyd v. Mo. Pac. Ry. Co., 236 Mo. 81. (5) The verdict in this case is not excessive. Hurst v. Railroad, 219 S.W. 566; Miller v. Harpster, 273 Mo. 605; Gurtman v. Lusk, 208 S.W. 61; Turnbow v. Rys. Co., 211 S.W. 41; Griffith v. Railway, 97 Mo. 647; Rodney v. Railway, 127 Mo. 676. (6) The verdict did not show passion and prejudice upon the part of the jury. Hurst v. Railroad, 219 S.W. 566.

GRAVES, J. Walker, C. J., concurs in all that is said except the reference to Hurst's case. To that modification James T. Blair, Higbee, David E. Blair and Elder, JJ., concur, and Walker, C. J., Woodson and Graves, JJ., dissent.

OPINION

In Banc.

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 39th Street in Kansas City, Missouri. West 39th 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 39th. 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.

I. 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 three and one-half years old, was oblivious of his danger, in crossing from the south to the north side of West 39th 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 v. Kansas City Rys. Co., 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 39th Street. The accident occurred at about 3:00 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 2 1/4 per cent grade from Genesee Street on the east to the point of accident, about fifty 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 east-bound 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 defendan...