Fowlkes v. Fleming

• Decision Date: 29 March 1929
• Docket Number: No. 27230.,27230.
• Parties: NELLIE FOWLKES v. FRED W. FLEMING and FRANCIS M. WILSON, Receivers of Kansas City Railways Company, Appellants.
• Court: Missouri Supreme Court

17 S.W.2d 511

NELLIE FOWLKES v. FRED W. FLEMING and FRANCIS M. WILSON, Receivers of Kansas City Railways Company, Appellants.

No. 27230.

Supreme Court of Missouri. Division One.

March 29, 1929.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

AFFIRMED.

Charles L. Carr, John R. Moberly and E.M. Tipton for appellants.

(1) Instruction number 1 given for plaintiff is fatally defective. (a) It improperly shifted the burden of proof to defendants without first requiring a finding of injury to plaintiff. The presumption of negligence on the part of defendants never arises until after plaintiff has established the relation of passenger and carrier, accident or untoward occurrence, and resulting injury. Robinson v. Ry. Co., 103 Mo. App. 110; Lemon v. Chanslor, 68 Mo. 356; Hurck v. Railroad, 252 Mo. 39; Van Tresse v. K.C.P.S. Co., 4 S.W. (2d) 1096; Laible v. Wells, 296 S.W. 430; Gardner v. Met. St. Ry. Co., 223 Mo. 391; Trowbridge v. Fleming, 269 S.W. 614; Stofer v. Dunham, 208 S.W. 645; Bell v. Railroad, 125 Mo. App. 660; Nelson v. Stove Co., 8 S.W. (2d) 920; Goodloe v. Met. St. Ry. Co., 120 Mo. App. 194; Clark v. Ry. Co., 127 Mo. 197; Och v. Ry. Co., 130 Mo. 27; Hipsley v. Ry. Co., 88 Mo. 348; Furnish v. Mo. Pac. Ry. Co., 102 Mo. 438; Dougherty v. Railroad, 97 Mo. 647; Smiley v. Ry. Co., 160 Mo. 629; Coudy v. Ry. Co., 85 Mo. 79; Stauffer v. Railroad, 243 Mo. 305; Orcutt v. Century Bldg. Co., 201 Mo. 424; Redmon v. Met. St. Ry. Co., 185 Mo. 1; Watson v. Ry. Co., 287 S.W. 815; Partello v. Mo. Pac. Ry. Co., 240 Mo. 122; Norris v. Railroad, 239 Mo. 695; Logan v. Ry. Co., 183 Mo. 582; Peck v. Trans. Co., 178 Mo. 617. (b) It allowed the jury to presume injuries from the proof of accident and placed the burden on defendants to disprove plaintiff's alleged injuries, or if there were injuries, to prove that the same did not result from the accident. There is no presumption of injuries and the burden of proof as to plaintiff's injuries never shifts. Stofer v. Dunham, 208 S.W. 644; Robinson v. Ry. Co., 103 Mo. App. 110; Lemon v. Chanslor, 68 Mo. 340; Hurck v. Railroad, 252 Mo. 39; Van Tresse v. K.C.P.S. Co., 4 S.W. (2d) 1096; Laible v. Wells, 269 S.W. 430; Trowbridge v. Fleming, 269 S.W. 614; Clark v. Ry. Co., 127 Mo. 197; Och v. Ry. Co., 130 Mo. 27; Stauffer v. Railroad, 243 Mo. 305; Gardner v. Met. St. Ry. Co., 223 Mo. 391; Orcutt v. Century Bldg. Co., 201 Mo. 424; Peterson v. Ry. Co., 265 Mo. 479; Logan v. Railway, 183 Mo. 582. (c) It broadened the issues made by the proof. Under the evidence there was no ground for submitting the case to the jury on the res ipsa loquitur doctrine after plaintiff's proof of the specific cause of the accident. Price v. Met. St. Ry. Co., 119 S.W. 938; Nelson v. Stove Co., 8 S.W. (2d) 921; Nixon v. Railroad, 141 Mo. 440; Bergfeld v. Rys. Co., 285 Mo. 654; State ex rel. v. Ellison, 270 Mo. 653; Degonia v. Railroad, 224 Mo. 589; 10 C.J. 1028, n. 95; Stangy v. Boston El. Ry. Co., 220 Mass. 414; Hufft v. Railroad, 222 Mo. 286; Bailey v. City Ry. Co., 152 Mo. 449; Lynch v. Met. St. Ry. Co., 112 Mo. 433; Davidson v. Transit Co., 211 Mo. 361; Orcutt v. Century Bldg. Co., 201 Mo. 424. (d) It does not require the jury to find that the collision in which plaintiff claimed to be involved through the negligence of defendants was the proximate cause of her injuries or disability, and that such injuries or disability resulted directly and solely from such collision. Hurck v. Railroad, 252 Mo. 39; Van Tresse v. K.C.P.S. Co., 4 S.W. (2d) 1096; Stofer v. Dunham, 208 S.W. 645. (e) It is plaintiff's general instruction purporting to cover the entire case, but fails to set forth and require findings on elements essential to plaintiff's recovery. Allen v. Mo. Pac. Ry. Co., 294 S.W. 87; Peterson v. Railway, 265 Mo. 479; Van Tresse v. K.C.P.S. Co., 4 S.W. (2d) 1096; Gardner v. Met. St. Ry. Co., 223 Mo. 391. (f) It improperly discusses abstract propositions of law not applicable to this case, and although it nowhere requires the jury to find that plaintiff's alleged disability was proximately caused by the collision, yet it dwells upon and gives undue prominence to such injuries and disability. Krodinger v. Citizens' Bank, 300 S.W. 311; Irons v. Am. Exp. Co., 300 S.W. 283; Ward v. Railroad, 311 Mo. 92. (g) Where this instruction has been previously approved and permitted to stand, the questions now raised by these appellants were not in those cases. This court did not in those cases endeavor to inject controversy over matters conceded and admitted by the parties, and to find error of which the parties were not complaining. Throughout this case, appellants have refused to concede any of those questions. State ex rel. Dunham v. Ellison, 213 S.W. 459; Price v. Met. St. Ry. Co., 220 Mo. 435; Powell v. Railroad, 255 Mo. 441; Simpson v. Ry. Co., 192 S.W. 743; Seigel v. Ry. Co., 172 S.W. 422; Loftus v. Met. St. Ry. Co., 220 Mo. 470. (2) Plaintiff's Instruction 2 is erroneous. (a) It is improperly related to and innoculated by the errors of Instruction 1. (b) It fails to require the jury to find that defendants' negligence, if any, was the proximate cause of plaintiff's injuries or disability before assessing damages against defendants, and in the absence of this essential element from plaintiff's Instruction 1, it is vital to this instruction and to respondent's case that it should be here included. See cases cited under 1 (b) and 1 (d). (3) The court erred in refusing defendants' Instruction 4. The doctrine of presumptive negligence did not apply, and in cases where plaintiff's recovery depends on a finding of specific negligence, this Instruction 4 properly states the law and should have been given. See cases cited under 1 (b) and 1 (c). (4) The court erred in refusing defendants' Instruction D-10. It properly stated the law applicable to and available in appellants' defense, particularly in view of the submission of plaintiff's case on the theory of presumptive negligence, and in view of the evidence produced by plaintiff. (5) The verdict is excessive, and so grossly excessive as to establish that it was the result of bias, passion and prejudice on the part of the jury, and is clearly not based on the evidence and the instructions of the court. (a) Verdicts comparable in amount, awarded for much more serious injuries, have been substantially reduced by the appellate courts of this State. Rose v. Ry. Co., 315 Mo. 1181; Henson v. Kansas City, 277 Mo. 443; Fitzsimmons v. Ry. Co., 294 Mo. 551; Clifton v. Railroad, 232 Mo. 708; Partello v. Mo. Pac. Ry. Co., 240 Mo. 122; Norris v. Railroad, 239 Mo. 695. (b) Verdicts which have been customarily awarded for injuries similar to respondent's and which have been approved by the appellate courts of this State are under one-half and generally in the neighborhood of one-fourth the size of this verdict. Bradfield v. Kansas City, 204 S.W. 819; Morris v. K.C. Rys. Co., 223 S.W. 784; Pyle v. K.C.L. & P. Co., 246 S.W. 979.

Mosman, Rogers & Buzard and Ralph E. Griffith for respondent.

(1) Instruction P-1 was a proper declaration of the law of the case. Trowbridge v. Fleming (Mo.), 269 S.W. 611; Price v. Met. St. Ry. Co., 220 Mo. 435; Powell v. Union Pac. Railroad Co., 255 Mo. 420; Johnson v. Rys. Co. (Mo. App.), 233 S.W. 942; Robinson v. Railway, 103 Mo. App. 110; Stofer v. Dunham (Mo. App.), 208 S.W. 641. (2) The instruction was a general instruction on the issue of negligence, but it did not direct a verdict. It must be read in conjunction with the other instructions. Neal v. Crowson, 231 S.W. 1033; Sturtevant Co. v. Ford Mfg. Co., 253 S.W. 76; Strayer v. Ry. Co., 170 Mo. App. 514. (3) By the instructions given on behalf of the defendants it was assumed that plaintiff was a passenger and was injured. (4) The doctrine of res ipsa loquitur applies to this case. The specific cause of the collision was not shown. Price v. Met. St. Ry. Co., 220 Mo. 435; Miller v. Fire Clay Products (Mo. App.), 282 S.W. 141; Kinchlow v. Ry. Co. (Mo.), 264 S.W. 416; Patterson v. Traction Co., 178 Mo. App. 250. (5) Instruction P-2 was proper and did not direct a verdict. If there was any error it was one of non-direction and not mis-direction. The instructions must be read as a single charge to the jury. Carney v. United Rys., 205 Mo. App. 495; Strayer v. Ry. Co., 170 Mo. App. 514. (6) Defendants' instructions were properly refused. The burden of proof to show the cause of the collision was not upon the plaintiff. Porter v. Ry. Co. (Mo.), 277 S.W. 913. Instructions unsupported by record evidence are erroneous. Ry. Co. v. Couch (Mo.), 187 S.W. 64; Quinn v. Van Raalte, 276 Mo. 71; Baker v. McMurry Const. Co., 282 Mo. 685. (7) The verdict is not excessive. Meyers v. Wells, 273 S.W. 110; Powelson v. Ry. Co., 263 S.W. 149; Hulen v. Wheelock, 300 S.W. 479; Grott v. Shoe Co., 2 S.W. (2d) 785. Lewis v. Parking Co., 3 S.W. (2d) 244.

LINDSAY, C.

The plaintiff had judgment for damages in the sum of $14,000, for injuries alleged to have been received by her while she was a passenger on a street car operated by the defendants. The plaintiff was employed as a saleswoman in a millinery store in Kansas City, and on the evening of March 3, 1924, while on her way from her place of employment to her home, was a passenger on one of defendant's street cars, eastbound on Twelfth Street. She took a seat near the rear end of the car. It stopped at Brooklyn Avenue to take on passengers. Almost immediately after coming to a stop the rear end of this car was struck by another eastbound car, moving at a speed of about ten miles an hour. The force of the collision was such that many of the windows of both cars were broken. Plaintiff was thrown from her seat, onto the floor of the car. She testified that she did not have a clear remembrance of what happened thereafter for several hours, and did not remember clearly how she got up and got off the car; but she remembered trying to get up from the floor between the...