Dunlap v. K.C. Pub. Serv. Co.
| Decision Date | 29 May 1939 |
| Docket Number | No. 19411.,19411. |
| Citation | 130 S.W.2d 658 |
| Parties | TAVNER DUNLAP, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Jackson Circuit Court. — Hon. Thos. J. Seehorn, Judge.
AFFIRMED.
Charles L. Carr and Hogsett, Murray, Trippe, Depping & Houts for appellant.
(1) The court erred in giving plaintiff's Instruction 1. (a) The petition charged specific negligence in failing to warn of the turning of the car, as well as general negligence. Plaintiff was therefore confined to the specific negligence in submitting his case to the jury and not entitled to submit as grounds for recovery general negligence, and the submission of general negligence by Instruction 1 was error. Thompson v. Livery Co., 214 Mo. 487, 490; Caesnowich v. Mfg. Co. (Mo.), 213 S.W. 799, 802; McGrath v. R.R., 197 Mo. 97, 105; Rosecoe v. R.R., 202 Mo. 576, 586, 589; Pointer v. Construction Co., 269 Mo. 104, 114; Byers v. Essex Inv. Co., 281 Mo. 375, 382; Pate v. Dumbauld, 298 Mo. 435, 445, 446; Sanders v. City of Carthage (Mo.), 51 S.W. (2d) 529, 532; Anderson v. Northrup (Mo. App.), 96 S.W. (2d) 521, 526. (b) It was error to submit negligence in permitting the switch to split and the car to turn and collide with the automobile, regardless of the allegation of failure to warn. Plaintiff was not entitled to recover merely because the switch split. There was no evidence of specific or actual negligence on the part of the defendant responsible for the splitting of the switch. Higgins v. St. Louis & Suburban Ry., 197 Mo. 330, 315. (c) There was no evidence that the motorman could in the exercise of ordinary care, have given warning of the turning of the car which could or would have averted plaintiff's injury and it was therefore reversible error to submit by Instruction 1, failure to warn of the turning of the car. Bury v. Frisco, 223 Mo. App. 483, 489, 17 S.W. (2d) 549; Wedele v. St. J.L.H. & T. Co., 47 S.W. (2d) 1098, 1100; Whitley v. K.C.P.S. Co., 66 S.W. (2d) 952, 954; Peterson v. Ry. Co., 270 Mo. 67; Carle v. Akin (Mo.), 87 S.W. (2d) 406, 410; Winkler v. United Rys. (Mo. App.), 229 S.W. 229; Reznowski v. Railway (Mo. App.), 81 S.W. (2d) 969, 972; Bath v. Ludwick (Mo. App.), 109 S.W. (2d) 724, 730. (d) The error of the instruction was prejudicial, and requires a reversal of the judgment. The instruction was erroneous in both respects complained of Furthermore, had either ground of recovery been submissible by itself, the other ground was so commingled in the instruction as to render it confusing to the jury and an erroneous declaration of law. Sevedge v. Railroad, 331 Mo. 312, 318, 53 S.W. (2d) 284; American Veterinary Laboratories v. Glidden Co., 59 S.W. (2d) 53, 62, 227 Mo. App. 799. (2) The court erred in refusing to give Instruction B, requested by defendant at the close of all the evidence, directing a verdict for defendant. There was no evidence that plaintiff's injury was caused by any negligent failure to warn of the turning of the car. Negligence on the part of defendant in permitting the switch to split and the car to turn and collide with the automobile, was not submissible under the pleadings, and was without support in the evidence. (3) The verdict was excessive. Lester v. United Railways (Mo. App.), 219 S.W. 666; Heckert v. St. Louis Hockey Club, (Mo. App.), 45 S.W. (2d) 869.
Johnson, Lucas, Landon, Graves & Fane for respondent.
(1) Plaintiff's Instruction 1 was not erroneous. (a) The petition charged general, not specific, negligence; therefore, the rule suggested by appellant under point (1)(a) of its brief is inapplicable. Schwanenfeldt v. Met. St. Ry. Co., 187 Mo. App. 588, 174 S.W. 143; Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Bergfeld v. K.C. Rys. Co., 285 Mo. 654, 227 S.W. 106; Bristoe v. Met. St. Ry. Co., 222 Mo. 104, 120 S.W. 1163. (b) When plaintiff showed he was on the public street, where he had a right to be, and was injured by the sudden, unexpected and uncommon movement of defendant's street car running on a track owned and operated by defendant, he made a prima facie case of negligence; therefore, it was not error to submit negligence in permitting the switch to split and the car to turn and collide with plaintiff. Kalver v. Met. St. Ry. Co., 166 Mo. App. 198, 148 S.W. 130; Baker v. Met. St. Ry. Co., 142 Mo. App. 354, 126 S.W. 764. (c) The "failure to warn" referred to in plaintiff's petition and in Instruction 1 was not an allegation or a submission of specific negligence. It was part and parcel of the charge of general negligence. Schwanenfeldt v. Met. St. Ry. Co., 187 Mo. App. 588, 174 S.W. 143. (2) Plaintiff made a case for the jury, and the court's refusal to give Instruction B directing a verdict for defendant was not error. Kalver v. Met. St. Ry. Co., 166 Mo. App. 198, 148 S.W. 130; Baker v. Met. St. Ry. Co., 142 Mo App. 354, 126 S.W. 764 (3) The verdict was not excessive. Hinkle v. C.B. & Q.R.R. Co., 199 S.W. 227; Feddick v. St. Louis Car Co., 102 S.W. 675, 125 Mo. App. 24; McDonald v. Met. St. Ry. Co., 164 Mo. App. 111, 147 S.W. 1130; Mullery v. M. & K. Tel. Co., 191 Mo. App. 118, 177 S.W. 1098; Kilroy v. K.C. & K.V. Ry. Co., 195 S.W. 522; GabeIman v. Bolt, 336 Mo. 539, 80 S.W. (2d) 171; Ulmer v. Farnham, 28 S.W. (2d) 113; Van Horn v. Union Fuel & Ice Co., 31 S.W. (2d) 260; Brockman v. Robinson, 48 S.W. (2d) 128; Crupe v. Spicuzza, 86 S.W. (2d) 347.
Plaintiff obtained a verdict and judgment for $2000, damages for injuries suffered by him in a collision between the automobile in which he was riding and a street car operated by the defendant. The defendant has appealed.
The petition alleged that on September 27, 1935, plaintiff was riding in an automobile driven by V.L. Scott in an easterly direction on Independence Avenue in Kansas City, Missouri; that said automobile was stopped at the intersection of said avenue and Prospect Avenue because of a red traffic light; that at the same time a street car being operated in a westerly direction on Independence Avenue was stopped near the east side of the intersection of said Avenues; that the street car was known to plaintiff to be an Independence Avenue car which, under the rule, practice and custom of defendant, should proceed west across Prospect Avenue; that when the traffic signal turned green for east and west traffic the automobile, Scott driving, proceeded east upon the intersection of said avenues and the street car proceeded west upon said intersection; that there was a switch in the track upon which the street car was running by which certain cars of the defendant, other than its Independence Avenue cars, turned south on Prospect Avenue; that when the automobile in which plaintiff was riding was upon defendant's track for south bound street cars at said intersection "the defendant carelessly and negligently caused and permitted its said switch to split, and said street car, contrary to said rule, custom and practice, to turn south on Prospect Avenue, suddenly and without warning to plaintiff or said Scott, and to run into, over and upon the car in which plaintiff was riding and into, over and upon the plaintiff, causing plaintiff certain painful, permanent and progressive injuries as hereinafter set forth." The petition further alleged that the street car was under the exclusive management and control of the defendant.
The answer was a general denial.
The evidence shows the automobile and street car stopped, thereafter moved into the intersection of the avenues; that the street car should have proceeded west across Prospect Avenue; that instead of moving west across the intersection it turned to the south upon Prospect Avenue, collided with the automobile, as alleged in the petition. It seems to be conceded the street car turned to the south because the switch split.
Plaintiff's instruction No. 1 allowed him to have the verdict upon the jury finding certain facts not in controversy, and that "the defendant carelessly and negligently, if you so find, permitted the switch mentioned in evidence to split, if so, and carelessly and negligently, if so, permitted its said street car to turn south on Prospect Avenue, if so, suddenly, if so, and without warning to plaintiff or said Scott, if so, and carelessly and negligently, if so, permitted its said street car to collide, if so, with the automobile in which plaintiff was riding, if so, injuring plaintiff, if so, then your verdict will be in favor of the plaintiff and against the defendant."
Defendant contends this instruction was wrong for the reasons (1) the petition charged specific negligence in failing to warn of the turning of the car, as well as general negligence; (2) that it was error to submit negligence in permitting the switch to split, regardless of the failure to warn, and (3) there was no evidence the motorman could in the exercise of ordinary care have given warning of the turning of the car in time to have averted the collision.
The defendant argues the petition charged general negligence in "permitting the switch to split and the car to turn and run into the automobile, and also specific negligence in failing to warn plaintiff or Scott of the turning of the car."
The allegation "without warning to plaintiff" was not a charge of specific negligence. It could "only go to show that plaintiff was unaware of the danger" and may be treated as surplusage. [Cull v. McMillan Contracting Co., 178 S.W. 868; Cole v. Uhlmann Grain Co., 100 S.W. (2d)...
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