Cooper v. Kansas City Public Service Co.

• Citation: 202 S.W.2d 42,356 Mo. 482
• Decision Date: 12 May 1947
• Docket Number: 40081
• Parties: Jefferson H. Cooper v. Kansas City Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 42

356 Mo. 482

Jefferson H. Cooper v. Kansas City Public Service Company, a Corporation, Appellant

No. 40081

Supreme Court of Missouri

May 12, 1947

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Charles L. Carr, William A. Kitchen, Alvin C. Trippe, Hale Houts and Hogsett, Trippe, Depping & Houts for appellant.

(1) The court erred in giving plaintiff's Instruction 1. The instruction was not supported by the evidence. There was no evidence that the front door of the bus was closed on deceased's coat and that she was in such manner injured. The testimony of Laura Wilson that deceased's coat was caught in the rear front door was contrary to the physical facts and inherently impossible. State ex rel. Kansas City Southern Ry. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Gurley v. Railway, 104 Mo. 211, 233, 16 S.W 11; Freed v. Mason, Mo. App., 137 S.W.2d 673, syl. 7; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Carner v. St. Louis-S.F. Ry., 338 Mo. 257, 89 S.W.2d 947; Dyrcz v. Railroad, 238 Mo. 33, 141 S.W. 861; Nugent v. Milling Co., 131 Mo. 241, 33 S.W. 428; Kibble v. Railroad, 285 Mo. 603, 227 S.W. 42; Gwaltney v. Kansas City So. Ry., 339 Mo. 249, 96 S.W.2d 357; Davidson v. Missouri Orpheum Corp., 236 Mo.App. 1025, 161 S.W.2d 707; Dunn v. Alton Railroad, 340 Mo. 1037, 104 S.W.2d 311; Arnold v Scandrett, 345 Mo. 115, 131 S.W.2d 542, syl. 3; Sexton v. Railway, 245 Mo. 254, 272, 149 S.W. 21; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Carlisle v. Tilghmon, 159 S.W.2d 663. (2) The court erred in overruling defendant's motion for directed verdict at the close of all the evidence. The judgment should be reversed outright for failure to prove the case submitted. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; And authorities Point I, supra. (3) The court erred in giving plaintiff's Instruction 2. Plaintiff submitted his case to the jury under the penalty statute (Sec. 3652, R.S. 1939), and was not entitled to recover under the compensatory statute (Sec. 3654, R.S. 1939). Casey v. St. Louis Transit Co., 205 Mo. 721; Wallace v. Woods, 340 Mo. 452, 102 S.W.2d 91; Borrson v. M.-K.-T.R. Co., Mo. Sup., 161 S.W.2d 227; Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920; Secs. 3652, 3654, R.S. 1939; Crites v. Kansas City Pub. Serv. Co., Mo. Sup., 190 S.W.2d 924; Chamberlain v. Missouri-Arkansas Coach Lines, 351 Mo. 203, 173 S.W.2d 57; Lackey v. Missouri & Kansas Interurban Ry., 305 Mo. 260, 264 S.W. 807; Secs. 8367, 8383, R.S. 1939; Crumpley v. Hannibal & St. Joseph R., 98 Mo. 34. (4) Instruction 2 erroneously instructed for compensatory damages under the compensatory statute, instead of for a penal sum in the discretion of the jury under the penalty statute. Treadway v. United Railways Co., 300 Mo. 156, 253 S.W. 1037; State ex rel. Wabash v. Bland, 313 Mo. 246, 281 S.W. 690; Ervin v. St. Louis, Iron Mountain & Southern Ry., 158 Mo.App. 1, 54-59, 139 S.W. 498; Pedigo v. St. Louis-S.F. Ry., 220 Mo.App. 1175, 299 S.W. 110; Beaber v. Kurn, 231 Mo.App. 22, 91 S.W.2d 70; Ward v. Mo. Pac. Ry., 311 Mo. 92, 277 S.W. 908; Secs. 3652, 3654, R.S. 1939.

Maurice J. O'Sullivan and John G. Killiger, Jr., for respondent.

(1) Plaintiff's case was fully supported by the evidence and Instruction No. 1 was properly given. Adams v. Thompson, 178 S.W.2d 779; Hopkins v. Kurn, 171 S.W.2d 625, 351 Mo. 41, 149 A.L.R. 762. (2) Appellant failed to make specific objection to Instruction No. 2 in the trial court and thereby waived the objection it now asserts. Wilkerson v. Mo. Pac., 69 S.W.2d l.c. 306; Sec. 122, General Code of Civil Procedure, Laws of 1943; Sec. 3.21, Rules of the Supreme Court of Missouri, revised January 18, 1945; Rule 51. The Federal Rules of Practice and Procedure; Palmer v. Hoffman, 63 S.Ct. 477, 318 U.S. 109, 87 L.Ed. 645, 144 A.L.R. 719, l.c. 726; Lincoln v. Claflin, 7 Wall. (U.S.) 132, 19 L.Ed. 106; Beaver v. Taylor, 93 U.S. 46, 23 L.Ed. 797; Mobile & M.R. Co. v. Jurey, 111 U.S. 584, 28 L.Ed. 527, 4 S.Ct. 566; McDermott v. Severe, 202 U.S. 600, 50 L.Ed. 1162, 26 S.Ct. 709; Norfolk & W.R. Co. v. Earnest, 229 U.S. 114, 122, 57 L.Ed. 1096, 33 S.Ct. 654, Ann Cas. 1914C, 172; Pennsylvania R. Co. v. Minds, 250 U.S. 368, 63 L.Ed. 1039, 39 S.Ct. 531; Krug v. Mutual Benefit Health & Accident Association, (C.C.A., 8th Cir.), 1941, 120 F.2d 296, l.c. 301. (3) Instruction No. 2 was not erroneous and did not misdirect the jury on a case submitted under Sec. 3652, R.S. Mo. 1939. Sec. 3652, R.S. Mo. 1939; Webster's Standard Dictionary; Hall v. Wabash Railway Co., 80 Mo.App. 463; State v. Summers, 281 S.W. 123; Wilkerson v. Mo. Pac. R. Co., 69 S.W.2d l.c. 306; Ward v Mo. Railway Co., 277 S.W. 908, 311 Mo. 92; Beaber v. Kurn, 91 S.W.2d 7, 231 Mo.App. 22; Treadway v. United Railways, 300 Mo. 156, 253 S.W. 1037; Irvin v. St. Louis Ry. Co., 139 S.W. 498, 148 Mo.App. 1; Hach v. St. Louis Ry. Co., 106 S.W. 525, 208 Mo. 581.

OPINION

Hyde, J.

This is an action for damages for the wrongful death of plaintiff's wife, when a passenger on defendant's bus. Plaintiff obtained a verdict for $ 10,000.00 and defendant has appealed from the judgment entered.

The case was submitted on plaintiff's Instruction No. 1 requiring a finding of the following facts concerning the occurrence: "That on January 13th, 1945, said bus mentioned in evidence stopped to discharge passengers at 15th and Grand Avenue, and that plaintiff's wife followed other passengers to the front door on the right-hand side to get off of said bus in the usual and ordinary way and was exercising ordinary care for her own safety, and while she was so doing that the front door of said bus was closed on the sleeve or other part of her outer coat and said bus was started to go north on Grand Avenue before she could get away therefrom and pulled her along the side of said bus while it was moving and that she was thereby knocked under and run over by the right front wheel of said bus."

Defendant contends that the court erred in overruling its motion for a directed verdict (and also in giving Instruction No. 1) on the ground that there was no substantial evidence of the facts submitted. It argues that the testimony upon which plaintiff relies to establish these facts was contrary to the physical facts and inherently impossible.

Mrs. Cooper was injured between 6:30 and 6:45 a.m. It was a dark foggy morning. There were lights on the bus and the street lights were lighted. She was on her way to work at a war plant, and was a passenger on defendant's trolley bus west bound on 15th street. She got off at the stop for Grand Avenue, which was at the northeast corner of the intersection, where it was necessary for her to go west across Grand Avenue to transfer to another bus. The bus from which she alighted was to turn north onto Grand Avenue. It was defendant's theory (and it had testimony to so show) that she got off the bus safely, walked a few feet west to the corner, started across Grand Avenue with the green traffic light and walked into the front of the bus as it came around the corner. She was the last passenger to get off the bus, leaving by the front door; and there was testimony that the driver "did close the doors very fast and started right up", and that passengers on the bus heard a cry or scream almost immediately after the bus started. The bus driver said that after he closed the doors he released the brakes and coasted to the corner where he waited for the traffic light to change, and that he heard a scream soon after he put on the power and started around the corner onto Grand Avenue. He said that he stopped the bus immediately with the front end in the pedestrian lane (east and west) across Grand Avenue. The front wheel of the bus ran against Mrs. Cooper crushing her pelvis. The bus was moved back enough to release her and a picture taken at the scene by the police shows a large bloody spot on the top of the tire. The right sleeve of her coat was completely torn off. The evidence as to the speed of the bus was that it was moving slowly, about three to five miles per hour.

The only person, who said she saw Mrs. Cooper's sleeve caught in the door, was a colored woman, Mrs. Laura Wilson, who was also a passenger on the bus but got off before Mrs. Cooper did. Mrs. Wilson said that she walked west a few feet and then went north on the east side of Grand Avenue toward the bus stop where she was going to transfer to another bus going north. She turned to look south for this bus and saw the bus which she had left turning north on Grand Avenue. She saw Mrs. Cooper at the side of the bus with her right coat sleeve, between the wrist and elbow, caught in the back part of the front door. She said it was caught between the body of the bus and the back of the door where the hinges were. She said Mrs. Cooper was "running backward, keeping up with the bus and was knocking on the window with her purse," which was in her left hand, saying "stop the bus." Mrs. Wilson said she "ran out there and knocked on the window" and said "there is a lady caught in the bus," but at that time the operator "speeded the bus up and that pulled Mrs. Cooper off of her feet and threw her under the bus."

Pictures in evidence show that the bus had two front doors, one on each side of the entrance, which came together in the center of the entrance when closed. Each of these doors had two panels which folded together when opened. When the doors were opened, these panels folded out and extended beyond the body of the bus. The back one of these two doors was fitted flush with the body of the bus and appeared to have hinges there on the outside, which protruded beyond the body of the bus. Defendant says that these physical facts show that it would have been impossible...