Flaspoler v. Kansas City Public Service Co.

• Citation: 170 S.W.2d 141,237 Mo.App. 1055
• Parties: Romie Flaspoler, Respondent, v. Kansas City Public Service Company, a Corporation, Appellant
• Decision Date: 01 March 1943
• Court: Kansas Court of Appeals

170 S.W.2d 141

237 Mo.App. 1055

Romie Flaspoler, Respondent, v. Kansas City Public Service Company, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

March 1, 1943

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn, Judge Hon. George V. Aylward, Special Judge.

Reversed and remanded.

Charles L. Carr, Watson, Ess, Groner, Barnett & Whittaker, Carl E Enggas and Douglas Stripp for appellant.

(1) Plaintiff's Instruction "P-1", which covered the case and called for a verdict for plaintiff under the humanitarian rule of negligence is prejudicially and reversibly erroneous for the following reasons: (a) The concluding phrase, or "tail" thereof, erroneously advises the jury that plaintiff would be entitled to recover even though plaintiff's driver "was guilty of negligence in getting said truck in said position" for such broad language would be in conflict with a proper sole cause instruction. Haynie v. Jones, 234 Mo.App. 948 127 S.W.2d 105; Hill v. St. Louis P. S. Co. (Mo. App.), 64 S.W.2d 633; McKerall v. St. Louis-S. F. Ry. Co. (Mo. App.), 257 S.W. 166; Hodge v. Feiner, 338 Mo. 268, 90 S.W.2d 90; Counts v. Thomas (Mo. App.), 63 S.W.2d 416; Roland v. Anderson (Mo. App.), 282 S.W. 752; Smith v. Wells (Mo. App.), 31 S.W.2d 1014; Mendenhall v. Neyer (Mo. App.), 149 S.W.2d 366; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Thomas v. Scott (Mo. App.), 114 S.W.2d 142; Pienieng v. Wells (Mo.), 271 S.W. 62; Smith v. E. St. Louis Ry. Co., 152 S.W.2d 204. (b) Said instruction unlawfully extended the danger zone and imposed upon defendant a legally nonexistent duty by requiring defendant's street car operator to act to avoid the collision when he saw or could have seen the truck in which plaintiff was riding being driven upon or approaching and in close proximity to the track. Flaspoler v. Kansas City Public Service Co., 235 Mo. 1102, 151 S.W.2d 467; State ex rel. Snider v. Shain, 345 Mo. 950, 337 S.W.2d 527; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 970; Smithers v. Barker, supra. (c) Plaintiff's instruction is erroneous because it is self-contradictory, repugnant and misleading in that it permits the jury to find that plaintiff was in imminent peril, either because of obliviousness or inextricability, when there was no evidence of obilviousness but, on the contrary, it was admitted that plaintiff and his driver were both aware of the approach of the street car. It is also erroneous because it is never proper to submit an issue which is not supported by evidence and authorizes a finding contrary to the evidence. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Schneider v. Terminal R. Ass'n., 341 Mo. 340, 438, 107 S.W.2d 787, 790; Whitley v. Kansas City Public Service Co. (Mo. App.), 66 S.W.2d 952; Gundelach v. Compagnie Generale Transatlantique (Mo. App.), 41 S.W.2d 1; Norton v. Kowazek (Mo. App.), 41 S.W.2d 1; Norton v. Kowazek (Mo. App.), 193 S.W. 556; Hockley v. Hulet Bros. Storage & Moving Co. (Mo. App.), 16 S.W.2d 749; Cory v. Interstate Securities Co. (Mo. App.), 99 S.W.2d 861; Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593. (2) The trial court erred, to the prejudice of the defendant, in not sustaining defendant's motion for new trial upon the ground that the $ 3000 verdict in favor of the plaintiff was excesesive and so excessive as to indicate passion and prejudice upon the part of the jury. Ulmer v. Farnham (Mo. App.), 28 S.W.2d 113; Johnson v. City of St. Louis (Mo. App.), 138 S.W.2d 666.

Joe Levin and Chas. N. Sadler for respondent.

(1) The court did not err in giving Instruction P-1. (a) The questions raised by defendant are not properly before this court. Romie Flaspoler v. K.C. Public Service Co., 151 S.W.2d 467; Leicher v. Keeney, 85 S.W. 920-921; McGrew v. Mo. Pac. Ry. Co., 94 S.W. 719; Warren v. Ry. Co., 99 S.W. 16, 17; Dunn v. Nicholson, 103 S.W. 114; Sheppard v. Travelers' Protective Ass'n of Am., 124 S.W.2d 529; State of Kansas ex rel. v. U. S. F. & G. Co., 40 S.W.2d 1051. (b) Even if properly before court, the instruction is not erroneous. Morris v. Banks, 257 S.W. 482-484; Branson v. Abernathy Furniture Co., 130 S.W.2d 562; Blunk v. Snyder, 129 S.W.2d 1075; Stanich v. W. U. Tel. Co., 153 S.W.2d 161-166; McDonald v. K. C. Gas Co., 59 S.W.2d 37-40; Jenkins v. Mo. State Life Ins. Co., 69 S.W.2d 666-669; Kick v. Franklin et al., 137 S.W.2d 512. (2) The verdict is not excessive. Lehnick v. Met. St. Ry. Co., 124 S.W. 542-543. (3) Unless prejudicial error is shown case may not be reversed. Sec. 1228, R. S. 1939; Mockowik v. Ry. Co., 94 S.W. 256-261; Kinney v. Met. St. Ry. Co., 169 S.W. 23-27; Hampe v. Versen, 32 S.W.2d 793-796.

Sperry, C. Boyer, C., concurs.

OPINION

SPERRY

This is a damage suit growing out of personal injuries received by plaintiff when an ice truck in which he was riding, it being driven by plaintiff's agent and under his supervision, collided with a street car owned by defendant and being then operated by its employee an agent. Trial to a jury resulted in verdict and judgment for plaintiff. Defendant appeals.

Defendant contends that plaintiff's Instruction P-1 is erroneous. Said instruction is as follows:

"The court instructs the jury, that if you find and believe from the evidence that on or about June 21, 1938, the plaintiff was riding in an automobile truck being driven in a westerly direction on the north side of East 31st Street, in Kansas City, Jackson County, Missouri, approaching Tracy Avenue; and if you further find that when said truck reached the intersection of said East 31st Street and Tracy Avenue (if you find it did reach said place), the driver turned said truck in a southerly direction across said East 31st Street for the purpose of going south on said Tracy Avenue; and if you further find that at the time said truck turned in a southerly direction (if you find it did so turn) a street car being operated by defendant, its agent and servant, was approaching said intersection from the west traveling in an easterly direction upon the south or eastbound car track; and if you further find that said truck was in a position of imminent peril, that is, in a position where there was immediate danger of being struck by said street car unless the speed of said street car was slackened, or the said street car was stopped; [and if you further find that the operator of said street car saw or by the exercise of ordinary care could have seen said truck being driven upon or approaching and in close proximity to the track] upon which said street car was traveling, if so, and saw or by the exercise of ordinary care could have seen that it was the apparent intention of the driver of said truck to cross said street car track in front of said street car (if you find such fact) and saw, or by the exercise of ordinary care, could have seen that said truck was in a position of imminent peril of a collision between said street car and said truck unless the speed of said street car was slackened, or the car stopped (if you find it was in such a position), and saw or by the exercise of ordinary care, could have seen that the driver of said truck was apparently oblivious to such peril (if you find such fact) or was unable to extricate said truck therefrom in time to prevent a collision (if you find such peril existed) in time thereafter, by the exercise of ordinary care, with the appliances then upon said street car, at the rate of speed it was then traveling, with safety to said street car and the occupants thereof, and under the conditions then and there existing as shown by the evidence, to have stopped said street car, or slackened the speed thereof, before it struck said truck (if you find it did strike same); and if you further find that the operator of said street car could by doing either or both of said acts, have prevented any injury to plaintiff (if you find he was injured), and negligently failed to do so, then under the circumstances you are instructed that your verdict should be in favor of plaintiff and against defendant, and this is true even though you may believe the driver of said truck was guilty of negligence in getting said truck in such position. (Given)" (Italics ours.)

Plaintiff's evidence tended to prove that he delivered ice over a regular route in Kansas City and used a Ford 1 1/2 ton truck in connection with that business; that on the day the collision occurred Clarence Hall, a friend of his, was driving said truck on said route and plaintiff was riding therein and delivering ice to his customers along said route; that Hall was not his employee but was a friend who drove the truck occasionally as a convenience for plaintiff and so that they could visit together while plaintiff performed his duties that the truck, with Hall driving, traveled westward astride the north rail of the westbound street car track, on the 31st street, approaching the intersection of 31st and Tracy at a speed of about five miles per hour; that the truck was thus driven to a point west of the center line of Tracy, then turned south; that as the front wheels of the truck approached the south rail of defendant's eastbound track a bicycle rider, proceeding eastward along the south rail of said track at about ten...