Elizabeth Price v. Metropolitan Street Railway Company
| Decision Date | 22 May 1909 |
| Citation | 119 S.W. 932,220 Mo. 435 |
| Parties | ELIZABETH PRICE v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Editorial Note:
This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.
Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.
Affirmed.
John H Lucas, Ben T. Hardin and R. B. Young for appellant.
(1) The court erred in refusing to sustain the demurrer offered by defendant, at the conclusion of plaintiff's evidence, and the peremptory request at the conclusion of the whole case. 2 Fetter, Carr. Passengers, sec. 480; Nellis, Street Surface Railroads, p. 519; Spencer v. Railroad, 17 Am. and Eng. R. R. Cases (N. S.) 166; Hite v. Railroad, 130 Mo. 140; Roscoe v. Railroad, 202 Mo. 576. (2) The court erred in giving instructions requested by plaintiff for the following reasons, viz.: No. 1: (a) Because the doctrine of res ipsa loquitur does not apply to the case at bar. Roscoe v. Railroad, 202 Mo. 576; Bailey v Railroad, 152 Mo. 449; Feary v. Railroad, 162 Mo. 101; Tuttle v. Railroad, 48 Iowa 236; Fitzgerald v. Railroad, 50 Mo. 516. (b) It too broadly states the rule of law sought to be invoked, casts the burden on appellant, and is misleading. Ham v Barrett, 28 Mo. 388; Porter v. Hauser, 52 Mo. 524; Mansur v. Botts, 80 Mo. 651; Estes v. Desnoyers Shoe Co., 155 Mo. 577; Clark v. Kitchen, 52 Mo. 316. Instruction 2 is erroneous, in that it excludes from the consideration of the jury the evidence of defendant, ignores the issues tendered in pleadings and proof, and is misleading. Sawyer v. Railroad, 37 Mo. 240; Chappell v. Allen, 38 Mo. 213; Raysdon v. Trumbo, 52 Mo. 35; Bailey v. Railroad, 152 Mo. 449; Feary v. Railroad, 162 Mo. 101; Tuttle v. Railroad, 48 Iowa 236; Fitzgerald v. Hayward, 50 Mo. 516. (3) The court erred in refusing to give instructions asked by defendant. They properly declared the law, were sustained by the evidence and applicable to the pleadings. Instruction 2: It is the law that the burden of proof was on plaintiff. Bond v. Wood, 124 Mo. 72. Instruction 4: The petition charged that defendant had caused and permitted the collision by failure to exercise ordinary care, and plaintiff was bound by her theory. Wolfe v. Supreme Lodge, 160 Mo. 675; Sprague v. Sea, 152 Mo. 327; Reardon v. Railroad, 114 Mo. 384. Instruction 6: There was uncontradicted proof of care in selection and inspection of machinery, and the jury should have been confined to the only controverted issue of operation of train. Roscoe v. Railroad, 202 Mo. 586. (4) The court erred in admitting evidence with respect to the injury to plaintiff's womb, over the objections of defendant. Magrane v. Railroad, 183 Mo. 119; Muth v. Railroad, 87 Mo.App. 422; Atkinson v. Railroad, 80 Mo. 212; Chitty v. Railroad, 140 Mo. 64; McManamee v. Railroad, 135 Mo. 440. (5) The court erred in admitting evidence with respect to rail brakes, over the objection of defendant. Railroad v. Hall, 91 Ala. 112; Railroad v. Kithcart, 149 F. 108; McGinnis v. Canada Southern Bridge Co., 49 Mich. 466; Railroad v. McCormick, 74 Ind. 440; Railroad v. Bates, 146 Ind. 564; O'Neill v. Railroad, 66 Neb. 638; Railroad v. Seley, 152 U.S. 145.
Brown, Harding & Brown for respondent.
(1) The demurrers at the close of plaintiff's case and at the close of the whole case were properly overruled. Redman v. Railroad, 185 Mo. 1; Wilber v. Railroad, 110 Mo.App. 690; Clark v. Railroad, 127 Mo. 197; Magrane v. Railroad, 183 Mo. 119; Lemon v. Chanslor, 68 Mo. 340; Hipsley v. Railroad, 88 Mo. 348; Allen v. Railroad, 183 Mo. 411; Coudy v. Railroad, 85 Mo. 85; Och v. Railroad, 130 Mo. 51; Malloy v. Railroad, 173 Mo. 75; Robinson v. Railroad, 103 Mo.App. 115; Chouquette v. Railroad, 80 Mo.App. 520; Tateman v. Railroad, 96 Mo.App. 453; Rattan v. Railroad, 120 Mo.App. 270; Hamilton v. Railroad, 114 Mo.App. 509; Roscoe v. Railroad, 202 Mo. 576. (a) Plaintiff did not waive the res ipsa loquitur doctrine. Cassady v. Railroad, 32 Am. & Eng. Ry. Cases (Mass.), 666; Redmon v. Railroad, 185 Mo. 9; Wilbur v. Railroad, 110 Mo.App. 694. (2) The court properly gave instruction 1. (a) The doctrine of res ipsa loquitur obtained. The petition alleged relationship of carrier and passenger and a collision. The evidence admitted it. Authorities under point 1. (b) This instruction followed the allegations in the petition. Allen v. Railroad, 183 Mo. 433. (c) It properly put the burden of exculpating itself on defendant. Clark v. Railroad, 127 Mo. 208; Redmon v. Railroad, 185 Mo. 9; Lemon v. Chanslor, 68 Mo. 355; Chouquette v. Railroad, 80 Mo.App. 520. (d) Instruction 2 was properly given. It must be read in the light of instruction 1 and all of defendant's instructions, and the jury is presumed to have read them all. It first and foremost required the jury to find for plaintiff, and that she was injured by defendant's negligence, before any damages were recoverable, and then proceeded to properly fix a measure and guide. Reilly v. Railroad, 94 Mo. 600; Gordon v. Burris, 153 Mo. 223; Fisher v. Packing Co., 77 Mo.App. 108; Keen v. Schweigler, 70 Mo.App. 409; Deweese v. Mining Co., 54 Mo.App. 476; Vegele v. Pickle, 56 Mo.App. 583; Noble v. Blount, 77 Mo. 735. (3) The court did not err in refusing to give instruction 2 asked by defendant. It improperly placed on plaintiff the burden of proving the negligence of defendant. Cases cited under points 1 and 2. (4) The court properly admitted evidence relative to plaintiff's womb. (a) The injury was covered by the allegations in the petition. Wilbur v. Railroad, 110 Mo.App. 693; Brown v. Railroad, 99 Mo. 318. (b) It was the natural and direct result of her injury. Wilbur v. Railroad, 119 Mo.App. 693; Coontz v. Railroad, 115 Mo. 674. (c) Defendant waived objections by bringing out evidence on this subject. (5) The court properly admitted evidence respecting rail brake. (a) Defendant made no objection to the introduction of any of the evidence on this subject except Kevan, and that was upon a different ground than the one urged in this court. Russell v. Glasser, 93 Mo. 360; Bank v. Harris, 54 Mo.App. 160. (b) The evidence was properly admitted because it was shown without contradiction that the rail brake was an effective factor in controlling trains on an incline; that defendant was and had been using the rail brake on its other lines for nine or ten years.
OPINION
In Banc
Upon consideration of this cause by the court In Banc, it is considered that the petition herein does not charge specific negligence, but general negligence, and the opinion by Graves, J., in division is adopted as the opinion of the court. The court is of the opinion that there is no real conflict between the views expressed in this case and that of Davidson v. Transit Company, 211 Mo. 320, 109 S.W 583, and that the language used in the Davidson case, supra, and quoted in the opinion in this case, was language used arguendo in the discussion of an instruction there under consideration, and it was not thereby meant to say that the petition in the Davidson case was a charge of specific negligence. Judgment is therefore affirmed. All concur; Valliant, C. J., in separate opinion.
GRAVES, J. -- Plaintiff, a passenger of the defendant, sues for damages in the sum of $ 15,000, for injuries alleged to have been received by reason of the car upon which she was riding having collided with another on the same track. The locus of the accident is the viaduct on the Twelfth Street line of defendant's railway system in Kansas City, Missouri, and the date November 4, 1903, between seven and eight o'clock in the morning. Plaintiff was a resident of Kansas City, Kansas, and was working for the firm of Emery, Bird & Thayer, having charge of the underwear department of that firm's store. On the day in question she boarded one of defendant's cars at Grandview station in Kansas City, Kansas, and rode to a point two short blocks from the defendant's Twelfth Street line, where it crosses Mulberry street. Procuring a transfer ticket she went to Mulberry street and there boarded an east-bound cable train (composed of a gripcar and coach or trailer) to go to her place of business. Mulberry street is near the west end of the Twelfth Street viaduct, which is quite a steep incline, upon which were two cable tracks, one for east-bound and one for west-bound cars. The eastbound cars used the south track. After leaving Mulberry street, there is quite a space covered by this overhead viaduct, and going east the first street reached where the car rests on terra firma, is the bluff or sometimes designated Bluff street. A block east is Lincoln street, which is on an upward incline from the bluff or Bluff street, and whereat is a level space to receive and discharge passengers. Then there is an upward incline to Summit street, where there is another level place to receive and discharge passengers, and going east from Summit is another upward incline. The cable train upon which plaintiff was riding passed over the incline and reached in safety Summit street, where it stopped. It then started and after going up the incline a short space started to run backward, slowly at first, but continued to increase its speed until it reached a point somewhere near the middle of the viaduct incline, where it collided with another of defendant's cable trains,...
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