Elms v. Kansas City Public Service Co.

• Decision Date: 09 May 1960
• Docket Number: No. 1,No. 47404,47404,1
• Parties: Virginia L. ELMS, Respondent, v. KANSAS CITY PUBLIC SERVICE COMPANY, a corporation, Appellant, and Lewis M. Shields, Defendant
• Court: Missouri Supreme Court

Page 26

335 S.W.2d 26

Virginia L. ELMS, Respondent, v. KANSAS CITY PUBLIC SERVICE COMPANY, a corporation, Appellant, and Lewis M. Shields, Defendant.

No. 47404.

Supreme Court of Missouri, Division No. 1.

May 9, 1960.

Ima M. Goehring, Kansas City, E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for appellant.

Robert B. Vaughan, Kansas City, for respondent.

DALTON, Judge.

Action for damages for personal injuries sustained by plaintiff as the result of a collision between the trolley bus of defendant Kansas City Public Service Company, on which plaintiff was a passenger, and a 1950 Chevrolet automobile operated by defendant Shields. Verdict and judgment were for defendants, but the court set the verdict and judgment aside as to each defendant and granted plaintiff a new trial. Only the defendant Kansas City Public Service Company (hereinafter referred to as appellant company) has appealed and here contends that the court erred in granting plaintiff a new trial.

There is no contention here that plaintiff did not make a case for the jury against appellant company. Respondent has approved appellant's statement of facts and we shall adopt it with some modification. About 5 p. m. on May 22, 1955, the trolley bus, on which plaintiff was a passenger, was westbound on Truman Road in Kansas City, Missouri. In the intersection of Truman Road and Euclid Avenue, the southbound 1950 Chevrolet automobile operated by defendant Shields collided with the right side of the bus and plaintiff was injured.

Plaintiff did not see the automobile of defendant Shields nor hear any warnings prior to the collision. The testimony of one of plaintiff's witnesses tended to show he was sitting in the rear seat on the right, or north, side of the bus when he first saw the Shields car to his right about 50 or 55 feet north of Truman Road coming south on Euclid. There were three westbound traffic lanes on Truman Road. The bus was in the south lane near the center of the street. The north side of the bus was 15 to 17 feet south of the north curb. When the witness first saw the Shields car, witness was east of the alleyway immediately east of Euclid, that is, the place where he was sitting in the bus was about 150 to 175 feet from the east curb of Euclid. The speed of the automobile, when he first saw it, was 5 to 6 miles per hour. It was on the right-hand side of Euclid. The bus was traveling 20 to 25 miles an hour. It was about 30 to 40 feet long. The Shields car slowed down as it neared Truman Road and then picked up speed and continued picking up speed, until it hit the bus at a speed of 15 to 25 m. p. h., a hard collision. The automobile did not stop for the stop sign, which was 15 feet north of the intersection. The automobile swerved to the right, to the west, just before the collision. After the collision the bus came to a jarring, violent stop, angled toward the curb. Its rear was about 10 feet from the west side of the intersection. The automobile struck the bus in front of the rear door, about 25 feet from the front end. The front portion of the bus had already passed the west curb of Euclid when the collision occurred. The speed of the bus was about 20 miles an hour at the time of the impact.

The bus gave no warning signals that witness heard as it approached Euclid, nor did the witness hear any warning signals from the Shields car. Immediately before the collision the bus operator was talking to two men standing a little in back of him, talking about the Kansas City baseball team. He kept turning his head and facing the men up to the time of the collision.

Defendant Shields testified in his own behalf that he stopped for the stop sign on Euclid, which he said was 6 to 8 feet north of Truman Road. He was about 65 feet north of the stop sign when he began to slow down for the stop, and he came to a complete stop with the front of his car about even with the stop sign. He looked west and then east and started to cross Truman Road. He saw the bus about 40 feet west of Garfield, which is the first street east of Euclid. It wasn't quite 300 feet away. The speed of the bus at that time was 20 to 25 m. p. h., and he started across Truman Road. About 10 feet south of the stop sign, he tested his brakes to see if they would stop and he discovered he had no brakes and his car kept going. Its speed was about 5 m. p. h. He didn't feel he was in any danger as the bus had farther to go than he did. He thought he had time to get across, but he traveled only about 15 feet before the collision. The bus did not slow up, but continued on at the same speed.

He testified that with good brakes he could have stopped in about 20 feet. He was driving about 4 feet from the west curb of Euclid and stayed in that position as he proceeded south. After he tried his brakes and discovered that he had none he still did not realize there would be a collision. There were no passengers waiting to board the bus at Euclid. He didn't turn to the right just before the impact. At the time of the impact the greater portion of the bus was west of the west curb of Euclid. The bus traveled about 30 to 40 feet after the impact and then stopped. Defendant Shields admitted that he signed Exhibit No. 34, which defendant company's counsel exhibited to him during cross-examination. He read it before he signed it.

Exhibit 34 was a printed card prepared by defendant company. The printed part read: 'I do not in any way blame the operator of the Kansas City Public Service Company for the occurrence in which I was involved on.' This was followed by a portion in writing, 'May 22, 1955 at 15th and Euclid, Lewis, 2012 E. 24 Terrace.' The signature 'Lewis' was admitted to be defendant Shields' signature.

Plaintiff submitted her cause against appellant company under the res ipsa loquitur doctrine and against defendant Shields on specific negligence in failing to stop at the stop sign on Truman Road and negligently proceeding into the traveled portion of that road without stopping.

When Exhibit No. 34 was offered in evidence, plaintiff's counsel stated: 'On behalf of my client I object to it primarily because it is hearsay. It is pure hearsay as to my client and is not binding upon her and is prejudicial. I object to it on behalf of my client.' The request was overruled and the exhibit admitted. Counsel then stated: 'At this time I ask the Court to instruct the jury that it is hearsay as to my client and not binding in any way upon Mrs Elms, and it is admitted only against Mr. Shields.' The request was refused. The objections were further developed in plaintiff's motion for a new trial.

The court sustained plaintiff's motion for a new trial as to appellant company 'for the reason that the Court erred in denying and refusing plaintiff's request that the Court instruct the jury, at the time Exhibit No. 34 was admitted in evidence, that it was admitted only as to the defendant Shields and was not binding on plaintiff, and in denying and refusing plaintiff's motion that the Court instruct the jury to disregard said Exhibit No. 34 as to plaintiff.' Plaintiff's motion for new trial as to the defendant Lewis M. Shields was sustained for the reason that the verdict of the jury was against the weight of the evidence.

Appellant contends the court erred to the prejudice of appellant in sustaining the motion for a new trial because, as a matter of law, the exhibit 'was an extra judicial admission against interest, was not objectionable as hearsay, was not limited by the opinion rule, and was original substantive evidence entitling appellant to such benefits therefrom as the jury might deem fit to give.' Appellant cites Ozbun v. Vance, Mo.Sup., 323 S.W.2d 771, 776(5); Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618, 621; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400, 410, and other cases. Appellant quotes from the Pulitzer case as follows: '* * * and the rule is universal that prior inconsistent statements of a party to an action, by deposition or otherwise, are admissible against him as substantive evidence in the nature of admissions.' (Italics ours.) It is apparent that the cases are not applicable under the facts here. Appellant insists that no judicial discretion was involved when plaintiff's objection was overruled; and that the court did not err when it refused plaintiff's request to instruct the jury the exhibit was hearsay as to her, and not in any way binding upon her, and was admitted only against Shields. There is, of course, no discretion as to the law of the case and, if no error was committed, the court erred in granting plaintiff a new trial. Schipper v. Brashear Truck Co., Mo.Sup., 132 S.W.2d 993, 937(10), 125 A.L.R. 674; State ex rel. State Highway Commission v. Belvidere Development Co., Mo.Sup., 315 S.W.2d 781, 784.

We are not here concerned with the admissibility of the exhibit as an admission against interest as to defendant Shields, although much of appellant's brief is devoted to that issue and many cases cited so hold. Our question, however, is whether the exhibit was admissible against the plaintiff and competent evidence in her action against appellant company, the codefendant of defendant Shields. Defendant Shields was a complete stranger to plaintiff and to her relationship to the other defendant as a passenger on its bus. The exhibit evidenced an admission against interest by defendant Shields. Respondent does not question the admissibility and relevancy of the exhibit as against defendant Shields. As between the plaintiff and the appellant company the exhibit was the hearsay statement of a third party favorable to his codefendant. The admission was made by a stranger to plaintiff and it was wholly incompetent as evidence in support of appellant company's defense against plaintiff's claim. Waterous v. Columbian National Life Insurance Co., 353 Mo. 1093, 186 S.W.2d 456, 460(8); Prewitt v....