Cooper v. K.C. Pub. Serv. Co.

• Decision Date: 04 April 1938
• Docket Number: No. 19078.,19078.
• Citation: 116 S.W.2d 212
• Parties: RENA COOPER, APPELLANT, v. KANSAS CITY PUBLIC SERVICE CO., RESPONDENT.
• Court: Missouri Court of Appeals

116 S.W.2d 212

RENA COOPER, APPELLANT, v. KANSAS CITY PUBLIC SERVICE CO., RESPONDENT.

No. 19078.

Kansas City Court of Appeals. Missouri.

April 4, 1938.

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

AFFIRMED.

Cope & Hadsell and Roy W. Rucker for appellant.

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

REYNOLDS, J.

This is an action for personal injuries received by the plaintiff while riding as a passenger in a motorbus being operated by the defendant in an easterly direction on Twenty-seventh Street and across Holmes Street, in Kansas City, Missouri, resulting from an automobile being driven south on Holmes Street colliding with such bus at or about the intersection of Twenty-seventh and Holmes Streets, which collision the defendant is alleged to have carelessly and negligently permitted.

The petition charges that the defendant as a corporation is engaged, and at the time of the injury complained of by the plaintiff was engaged, in the business of a common carrier of passengers for hire and that on or about February 23, 1936, the plaintiff boarded one of the defendant's eastbound motorbuses, paid her fare, and became a passenger thereon and that, while said bus was traveling in a easterly direction on Twenty-seventh Street, a public street in Kansas City, Missouri, at or near the intersection of Twenty-seventh Street, another public street of said city, the defendant negligently caused or permitted such motorbus to come into violent contact and collision with a southbound automobile on Holmes Street and thereafter to run upon and over the curbing and on to a sidewalk at the southeast corner of the intersection of said street and that, as a direct and proximate result of such, the plaintiff received permanent and progressive personal injuries. The petition enumerated in detail the injuries resulting to the plaintiff from such collision. The prayer of the petition was for judgment for $7500.

The answer was a general denial.

The trial was before the court and a jury, and the cause was submitted for the plaintiff solely under the humanitarian rule. A verdict and judgment resulted for the defendant, from which, after an unsuccessful motion for a new trial, the plaintiff prosecutes this appeal.

There is but one assignment of error presented and that alleges error in the giving of instruction No. 6 for the defendant which instruction is as follows: "The Court instructs the jury that if you find and believe from the evidence in this case that such injuries, if any, as plaintiff received at the time and place complained of in this action and as shown by the evidence, if so, were the result of the sole negligence, if any, of the driver of the southbound automobile that collided with said bus in question, if so, and if you further find that said sole negligence, if any, consisted of the speed and manner in which he caused said automobile to be operated into said intersection in question (namely 27th & Holmes Street, in Kansas City, Mo.) as shown by the evidence, if so, and by the failure, if any, of said driver of said southbound automobile to stop at the Arterial stop sign, if any, before entering into 27th Street, if so, as shown by the evidence, if so, and if you further find that a highly careful and prudent automobile driver under the same or similar circumstances, as surrounded the driver of said automobile that collided with said bus in question, would not have driven his automobile into the intersection of 27th and Holmes, at said time and place referred to in evidence without first stopping at or near said arterial stop sign and before entering 27th Street, if so, and would not have driven his car into said intersection in the manner and at the speed in which said driver drove said automobile into said intersection in question, as shown by the evidence, if so, and if you further find that the bus driver in question operated said but into and across said intersection in such manner as a highly careful and prudent bus operator would have operated the same under the same or similar circumstances, if so, and without any negligence on his part, if so, then in such event plaintiff is not entitled to recover herein and your verdict should be for the defendant and against the plaintiff."

The assignment is as follows: "The court erred in giving defendant's instruction No. 6."

The assignment is faulty and, standing alone, presents nothing for review. [University Bank v. Majors, 229 Mo. App. 963, 83 S.W. (2d) 924; Scott v. Missouri Pacific R. Co., 333 Mo. 374, 62 S.W. (2d) 834; State v. Kelly (Mo.), 107 S.W. (2d) 19.]

However, the assignment appears renewed under the heading, "Points and Authorities," immediately following in the plaintiff's brief where the grounds upon which the plaintiff predicates her complaints of alleged error in the giving of such instruction are fully set out in a manner sufficient to present such alleged error for our review.

The grounds set out and relied upon are as follows:

"(1) Said instruction was confusing and misleading to the jury.

"(2) The instruction under the guise of sole negligence improperly authorized the jury to find for defendant because of alleged antecedent and primary negligence of the driver of the automobile.

"(3) The instruction proceeded on the erroneous theory that the contributory negligence of the driver of the automobile could defeat the plaintiff's right to recover.

"(4) The instruction was broader than the issues in that the only issue presented to the jury by plaintiff's instruction was whether or not after the bus had entered a position of peril of being struck by the southbound automobile, the driver of the bus exercised the highest degree of care in preventing the collision, and defendant should not have been permitted, as it was, to broaden the issues."

After having considered the same, we are not of the opinion that the instruction is subject to any of the criticisms made or that any of the grounds advanced, upon which alleged error is based, or any of the reasons assigned in support thereof are well made.

We are not of the opinion that the instruction is erroneous by reason of any of the grounds or reasons advanced by the plaintiff.

That it is allowable for the defendant in a case under the humanitarian rule not only to disprove one or more of the basic facts upon which that rule rests but also to make the further defense that the sole cause of the plaintiff's injury was the negligence of the plaintiff or of some third person and that such injury was not the result of or caused by any act, omission, or fault upon his part is well settled. He is not restricted to merely disproving one or more of the facts upon which the rule under which he is charged rests; and, where an issue is made as to whether the plaintiff's negligence or that of some third person was the sole cause, he is entitled to have such issue submitted to the jury through an appropriate instruction. [Borgstede v. Waldbauer 337 Mo. 1205, 88 S.W. (2d) 373; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W. (2d) 742; Thomas v. Stott, Kansas City Court of Appeals, not yet reported.]

In a case submitted under the humanitarian rule, the contributory negligence of the plaintiff or of a third person is not involved. Neither the contributory negligence of a third person nor of the plaintiff defeats recovery, but the negligence of either as the sole cause...