Crews v. Kansas City Public Service Co.

• Citation: 111 S.W.2d 54,341 Mo. 1090
• Parties: Narcissa Crews v. Kansas City Public Service Company, a Corporation, Appellant
• Decision Date: 14 December 1937
• Court: United States State Supreme Court of Missouri

111 S.W.2d 54

341 Mo. 1090

Narcissa Crews v. Kansas City Public Service Company, a Corporation, Appellant

Supreme Court of Missouri

December 14, 1937

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

Affirmed.

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

The trial court erred in refusing defendant's request for a separation and sequestration of witnesses under the rule which request was made in proper time before any witness was put upon the stand and before the introduction of any evidence; the court erroneously ruling that a request for sequestration of witnesses (for the rule) must be made before opening statements of attorneys. The court did not exercise a sound discretion, or any discretion, in so ruling but erroneously interpreted the rule with respect to the time that enforcement of the rule may be requested. The sequestration of witnesses upon request before the introduction of evidence, in furtherance of justice, the exposure of perjury and the prevention of witnesses falsely or unconsciously modifying their testimony to track, and be consistent with, the testimony of other witnesses, is, and should be, a matter of right and not a mere matter of discriminatory and varying discretion, a negative exercise of which cannot be based upon just and logical reasoning. Wigmore on Evidence (2 Ed.), chap. LXI, secs. 1837-1841, pp 901-913; Bishop v. State, 81 Tex. Cr. 101, 194 S.W. 391; Rainwater v. Elmore, 48 Tenn. 368; Nelson v. State, 32 Tenn. 258; Salisbury v. Commonwealth, 79 Ky. 432; Gregg v. State, 3 W.Va. 709; State v. Zellers, 7 N. J. L. 226; Southey v. Nash, 32 Eng. C. L. 664, 7 Carr. & P. 632; Regina v. Murphy, 34 Eng. C. L. 403, 8 Carr. & P. 307; Taylor v. Lawson, 14 Eng. C. L. 705, 3 Carr. & P. 543; 2 Phillips on Evidence, p. 395; State v. Sloan, 186 S.W. 1003; State v. Compton, 317 Mo. 477, 296 S.W. 138; O'Bryan v. Allen, 95 Mo. 75, 8 S.W. 226. Error is presumed to be prejudicial unless the contrary clearly appears from the record. Aronovitz v. Arky, 219 S.W. 625; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 655, 195 S.W. 724.

Louis R. Weiss and Fred M. Roberts for respondent.

(1) The trial court cannot be convicted of error for declining to make an order requiring the several witnesses to remain outside the courtroom, during the introduction of testimony, for the reason that in Missouri the action of the court in making such an order is discretionary. Furthermore, there was no showing made that any of the witnesses remained in the courtroom or in the hearing of any of the testimony adduced by either side. 64 C. J. 118; 26 R. C. L. 1058; State v. Compton, 296 S.W. 138; Berberet v. Electric Amusement Co., 276 S.W. 36, Id., 3 S.W.2d 1025; Sturdivant Bank v. Wright, 168 S.W. 359; State v. Sloan, 186 S.W. 1003; Glens Falls Ins. Co. v. Hall 79 S.W.2d 388; Southland Greyhound Lines v. Matthews, 74 S.W.2d 716; Simpson v. Schiff, 197 P. 857; People v. Ring 255 N.W. 373. (2d) The court committed no prejudicial error in permitting counsel for plaintiff to cross-examine defendant's witness Reddish of and concerning his report of the accident that he made in his line of duty as a police officer. 28 R. C. L., sec. 186 p. 596; 2 Wigmore on Evidence (2 Ed.), sec. 753, p. 32, sec. 762, p. 42; 70 C. J., sec. 816, p. 650; State v. Miller, 234 Mo. 588, 137 S.W. 890; Morris v. United States, 149 F. 123; Fuller v. Robinson, 230 Mo. 22, 130 S.W. 354; Steinberg v. Merchants Bank, 67 S.W.2d 68; Dunn v. Alton Railroad Co., 88 S.W.2d 228; State v. Ehlers, 119 A. 15, 25 A. L. R. 1003; Atchison, T. & S. F. Ry. Co. v. Hays, 54 P. 322; Brown & Co. v. Canty, 161 A. 91, 83 A. L. R. 804. (3) No reversible error was committed by the action and ruling of the trial court upon such objections and exceptions as made and saved by appellant to the argument of counsel for plaintiff, for various separate reasons, to-wit: (a) That no proper objections and exceptions were made at the trial, and thereafter the purported assignment of error in the motion for new trial was not sufficiently specific in that it failed to set forth and point out that portion of the argument objected to, together with the reasons wherein it was claimed to have been improperly made; (b) that at no time during the course of the argument did defendant lay the foundation for appellate review by requesting the trial court to admonish, reprimand or rebuke counsel for plaintiff; (c) that only a fragmentary portion of the argument is preserved; hence the discretionary action of the trial court will not be interfered with; (d) that in the absence of all the argument, it will not be presumed on appeal in aid of error that the argument was unwarranted by the situation and facts existing which were well known to the trial court; and, (e) that the fragmentary portion of the argument as shown by the record was legitimate and proper under the circumstances. Smith v. Kansas City Pub. Serv. Co., 56 S.W.2d 843; Wendler v. House Furnishing Co., 65 S.W. 741; Adkinson v. United Ry. Co., 228 S.W. 484; Marlow v. Nafziger Baking Co., 63 S.W.2d 119; Goyette v. Frisco Ry. Co., 37 S.W.2d 556; Rouchene v. Gamble Const. Co., 89 S.W.2d 65; Irons v. Am. Ry. Express Co., 300 S.W. 292.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries resulting from being struck by a street car. Plaintiff had a verdict for $ 8,740. Defendant has appealed from the judgment entered thereon.

The case was submitted solely upon negligence under the humanitarian rule. Defendant does not assign error in the court's refusal of its peremptory instruction, but assigns error in plaintiff's main instruction authorizing a verdict, and also as to rulings concerning certain incidents occuring during the trial. We will consider first the assignment against plaintiff's Instruction No. 1. This instruction (leaving out "if so," etc.), after findings concerning the place of accident, is as follows:

"And if you further believe and find from the evidence that plaintiff approached said street car track, upon which said street car was running, and that she entered and was in a position of imminent peril, or immediately approaching a position of imminent peril by reason of the approach of said street car and was oblivious of such peril; and if you further believe and find from the evidence that defendant's motorman then and there operating said westbound street car saw, or by the exercise of ordinary care on his part, could have seen plaintiff in such position of imminent peril, or approaching a position of imminent peril and with obvious intent of proceeding across the track in front of the defendant's car, and apparently oblivious of such imminent peril in time thereafter with the means and appliances at hand, and with safety to himself, his passengers and such street car, to have either stopped said street car, sufficiently slackened its speed, or given warning to plaintiff that said street car would not stop and thereby have prevented colliding with plaintiff and injuring her, but negligently failed to do so, and that as a direct result of such negligent failure plaintiff was struck and injured by said street car, then your verdict must be in favor of plaintiff and against defendant, even though you should believe from the evidence that plaintiff failed to use ordinary care for her own safety and was careless in going upon said westbound street car track in front of said approaching street car."

The ground for defendant's assignment against this instruction as a whole is stated to be that it is "erroneous in not limiting the duty of the street car operator to the time that he saw, or by the exercise of ordinary care could have seen, plaintiff in a position of imminent peril from which she could not extricate herself." Since there is no assignment as to overruling its demurrer to the evidence, apparently defendant concedes that plaintiff made a case of humanitarian negligence on her own evidence based on helpless inextricable peril after she got into the path of the street car, or was close enough to it that she would not be able to escape injury from it solely by her own efforts. Defendant's complaint is that the position of peril is broadened by plaintiff's instruction to include a time and place when and where plaintiff had complete ability to prevent her injury if she had continued to watch the street car and been aware of the necessity of keeping off the track, whether the motorman actually saw her or not. Defendant attacks the Missouri Humanitarian Doctrine (insofar as it places liability on the operator of a vehicle who does not actually see an oblivious person approaching the path of his vehicle) and asks that it be reexamined on fundamental principles of proximate cause.

Plaintiff was a woman sixty-one years old and weighed about 225 pounds. The place of the accident was the intersection of Flora Avenue (a north and south street) and Thirty-first Street (an east and west street) in Kansas City. The time was about six p. m., November 21, 1932. The street lights were on at the intersection. Plaintiff's evidence was that she was walking north on the west side of Flora, intending to take one of the westbound Thirty-first street cars which regularly stopped for passengers at the northeast corner of this intersection. Plainiff saw that there was no one waiting for the car at this corner. When she was thirty or thirty-five feet south of Thirty-first Street she saw a westbound street car, with headlights burning, a block east and "walked a little brisker" until she came to the southwest corner of the intersection. A westbound street car had to come up a slight grade approaching Flora. The crest of this hill was on the...