Crews v. Wilson

• Decision Date: 26 February 1926
• Docket Number: 25099
• Citation: 281 S.W. 44,312 Mo. 643
• Parties: FLOYD E. CREWS and ETHEL CREWS, Appellants, v. FRANCIS M. WILSON and FRED W. FLEMING, Receivers of Kansas City Railways Company
• Court: Missouri Supreme Court

281 S.W. 44

312 Mo. 643

FLOYD E. CREWS and ETHEL CREWS, Appellants, v. FRANCIS M. WILSON and FRED W. FLEMING, Receivers of Kansas City Railways Company

No. 25099

Supreme Court of Missouri

February 26, 1926

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

Affirmed.

Swearingen & Finnell for appellants.

(1) The court erred in giving Instruction 2 at the request of defendants. (a) This court has often held that where there is no evidence upon which to base this instruction it is error to give it. Keeline v. Sealy, 257 Mo. 498; Schmidt v. Railroad, 149 Mo. 289; Lass v. Rys Co., 233 S.W. 70; Sampson v. Railroad, 156 Mo.App. 419; Wyatt v. Central Coal Co., 209 S.W 585; Hill v. Dillon, 176 Mo.App. 192. (b) The instruction is vicious. If error can be greater in one instance than in another, we would say that this instruction was the climax. Plaintiffs had no "interested" witness except to facts that were conceded to be true. Neither of the plaintiffs saw the accident. None of plaintiff's witnesses were shown to have been moved by any "relation to or feeling for or against plaintiffs or defendants." None was related to plaintiffs or interested in their recovery beyond the interest of the every-day individual to speak the truth concerning matters in question. (2) The court erred in refusing plaintiff's Instruction 7. (a) As many causes of action as are consistent therewith may be submitted with a humanitarian case. Foster v. Rys. Co., 235 S.W. 1070; DeRousse v West, 198 Mo.App. 293; Dunn v. Rys. Co., 204 S.W. 592; Haley v. Railroad, 197 Mo. 15. Plaintiffs may submit the humanitarian doctrine in one instruction and any other theory of the case pleaded and proved in another. Taylor v. St. Ry., 256 Mo. 210. The operatives of street cars and other dangerous agencies must be governed by the circumstances that surround them at the various places along the line. Freie v. Ry. Co., 241 S.W. 671; Heinzle v. Railway, 182 Mo. 558. (b) The instruction did not say that it was negligent for this motorman not to come down under control; it didn't say that he came down without having his car under cntrol, but it follows the rule. It says to the jury, if you believe from the evidence that the motorman came down to the place where Jack Crews was killed without having his car under control, and if you believe it was negligent to do so, and if you find that this negligence was the cause of his death, then you will find the issues for the plaintiffs, and this is the law. Stauffer v. Railroad, 243 Mo. 336; Central Railroad v. Young, 200 F. 359; Gt. Northern v. Hooker, 170 F. 154; Moore v. Street Ry., 142 Mo.App. 294; Harrington v. Dunham, 273 Mo. l. c. 431; Cole v. Met., 121 Mo.App. 609; Freie v. Railroad, 241 S.W. 671; Benton v. St. Louis, 248 N.W. 98; Greer v. Railroad, 173 Mo.App. 276; Stewart v. St. Ry. Co., 188 S.W. 200. (c) "Under control" is a well-understood phrase, and especially by railroad and automobile people. Freie v. Railroad, 241 S.W. 671; Torantolla v. Rys. Co., 226 S.W. 617; Heinzle v. Railway, 182 Mo. 558; Stauffer v. Railroad, 243 Mo. 336. The plaintiffs have a right to have the jury pass on the question whether it was negligent for the motorman to come west on Forty-Third Street with the car not under control. Benton v. St. Louis, 248 N.W. 98; Greer v. Railroad, 173 Mo.App. 276; Stewart v. St. Ry. Co., 188 S.W. 200; Harrington v. Dunham, 273 Mo. 414; Foster v. Rys. Co., 235 S.W. 1070. (d) This car could have been stopped after Jack was knocked down and before the wheels cut him up. Spencer v. Transit Co., 222 Mo. 310; Hill v. Harvey, 201 S.W. 535; Heinzle v. St. Ry. Co., 213 Mo. 102.

Charles N. Sadler and Ben L. White for respondents.

(1) Instruction 2-d, given at the request of the de-defendants was proper. There was abundant evidence on which to base it. Lass v. Rys. Co., 233 S.W. 71; Hinton v. Railroad Co., 106 S.W. 396; Pelster v. Shamrod Boiler Co., 268 S.W. 892. (2) Instruction 7, requested by plaintiffs, was properly refused. (a) The allegation is too general and comprehensive, too lacking in any specification of what is meant by the clause "negligently and carelessly failed to stop." Applegate v. Railroad, 252 Mo. 173; McNanamee v. Ry., 135 Mo. 447; Waldhier v. Railroad, 71 Mo. 515. (b) But if said allegation be held an averment of specific negligence, then, it is squarely in conflict with the predication of the humanitarian doctrine.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On April 16, 1921, the plaintiffs, Floyd E. Crews and Ethel Crews, filed in the Circuit Court of Jackson County, Missouri, their action for damages against the Kansas City Railway Company, and its receivers, on account of the killing of their six-year-old son in said city on March 22, 1921, by said railway company.

(1) The petition in substance charges that about 7:45 o'clock A. M. on March 22, 1921, while plaintiffs' son, Jack Crews, was walking across 43rd Street in said city, from south to north, at a point about sixty feet east of the east line of Main Street, in said city, defendants' servants in charge of defendants' east-bound car carelessly and negligently ran said car against and over said Jack Crews and killed him; that the servants of defendants in charge of said car saw, or by the exercise of ordinary care could have seen, Jack Crews coming into a perilous position, and in a perilous position, oblivious of the approach of said car, in time, by the use of ordinary care and caution, with due regard to the safety of the people on said car, to have stopped said car and avoided injuring plaintiffs' son, and negligently failed to do so.

(2) It is further alleged that said car was equipped with a bell or gong, to warn people of danger, and that the motorman in charge of said car negligently failed to sound said gong for the purpose of informing Jack Crews of the approach of said car.

(3) It charges that defendants were guilty of negligence in failing to have the car under control which killed plaintiffs' son, and that he was killed by reason thereof.

(4) It is averred that by reason of the foregoing acts of negligence, plaintiffs' son was run over and killed as aforesaid, and for which they seek to recover $ 10,000 as damages, etc.

The answer was a general denial.

The case was tried before a jury, and on November 16, 1922, a verdict was returned in favor of defendants. Judgment was entered in due form on the verdict aforesaid. Plaintiffs, in due time, filed a motion for a new trial, which was overruled, and the cause appealed by them to this court.

It appears from the evidence, that on the morning of March 22, 1921, plaintiff Ethel Crews sent her daughter, Evelyn, then about eight years old, and her son, Jack Crews, then about six years old, on an errand to get some cookies. In order to do this errand, it was necessary for the children to cross 43rd Street, near its intersection with Main Street in Kansas City, Missouri. Forty-third Street runs east and west and Main Street north and south. Each of said streets has double-track street-car lines with appropriate switches and cross-overs. The above switches and cross-overs were what are commonly called spring or plug switches, and were not electrical switches. The Rockhill-Independence Avenue street cars move north and south on Main Street, and east and west on 43rd Street, reaching the one or the other by the switches mentioned, at their intersection at 43rd and Main. As the cars move west on 43rd Street, they make regular passenger stops from ten to fourteen feet east of Main. The first street east of Main is Walnut Street, which runs north and south. The block between Main and Walnut is about 250 feet long. From Walnut to Main there is a slight down grade. The switch-point of the west-bound track on 43rd Street is about seventy or seventy-five feet east of Main Street. It is not an electrical switch-point, but a spring or plug. When two cars are meeting -- one east-bound on the south track and the other west-bound on the north track -- the west-bound car, approaching the switch-point, is required to slow down until the rear trucks pass said switch-point -- this, to guard against a possible split switch. The width of each track is four feet and eight inches; and the width or space between the east-bound and west-bound tracks is five feet. The distance from the south curb of 43rd Street, to the south rail of the north or west-bound track is about twenty-three feet. The street structure, on either side of the rails on 43rd Street, consists of cobble-stones, which are rough and coarse, some being about an inch or an inch and a half above the top of the rails.

When Evelyn and Jack Crews reached the south curb on 43rd Street a car was moving east-bound on the south track and another moving west-bound on the north track. The motorman on the west-bound car was sounding his gong and slowing down to about six miles per hour. The east-bound car had completely rounded the curve or switch and was moving directly east and passing in front of said children. Evelyn had hold of Jack's hand when they reached the curb and they stopped to let the car pass, but suddenly Jack broke away from his sister and ran as fast as he could immediately behind the east-bound car and directly in front of the west-bound car. At this time, the cars had passed the switch-points and were accordingly moving with the usual speed, the west-bound car traveling eight or ten miles per hour. The evidence discloses that deceased ran directly within two or three feet behind the east-bound car. He was there and within about a foot or eighteen inches south of the north rail of the east-bound track when the motorman first saw him. He was then from five to seven feet south of the west-bound car and two or three...