Freeman v. Metropolitan Street Railway Company

• Citation: 68 S.W. 1057,95 Mo.App. 94
• Parties: J. H. FREEMAN, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 02 June 1902
• Court: Court of Appeals of Kansas

68 S.W. 1057

95 Mo.App. 94

J. H. FREEMAN, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 2, 1902

Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Arthur F. Smith, John H. Lucas and Frank Hagerman for appellant.

(1) The court erred in giving plaintiff's instruction 4. It was a clear comment upon the testimony. Anderson v Kincheloe, 30 Mo. 525; Fine v. Public Schools, 39 Mo. 68; Jones v. Jones, 57 Mo. 143; Forrester v. Moore, 77 Mo. 660; Benjamin v. Railroad, 50 Mo.App. 612; Barr v. Kansas City, 105 Mo. 559; Blair v. Railroad, 31 Mo.App. 231; Pryor v Railroad, 85 Mo.App. 380; Spohn v. Railroad, 87 Mo. 74; Lynch v. Railroad, 112 Mo. 433; Weller v. Railroad, 120 Mo. 654. It authorized the jury to consider contradictory statements made by the conductor when there was no proof thereof. (2) There was error in giving plaintiff's instruction 1. It required too high a degree of care (Feary v. Railroad, 162 Mo. 104) and conflicted with defendant's instruction 2 and modified instruction 1. Conflicting instructions are always erroneous. Frederick v. Allgaier, 88 Mo. 603; State v McNally, 87 Mo. 658; State v. Simms, 68 Mo. 310; Simmons v. Carrier, 60 Mo. 585; Henschen v. O'Bannon, 56 Mo. 292; Thomas v. Babb, 45 Mo. 388; Goetz v. Railroad, 50 Mo. 474. (3) The court erred in giving plaintiff's instruction 2. It assumed that plaintiff's wife was healthy and strong, that her society, health, strength and usefulness were impaired, and that this impairment was the result of defendant's negligence. Fullerton v. Fordyce, 121 Mo. 13; Turner v. Loler, 34 Mo. 461; Moffatt v. Conklin, 35 Mo. 457; Peck v. Ritchey, 66 Mo. 121; Comer v. Taylor, 82 Mo. 348; Wilkerson v. Thompson, 82 Mo. 328; State v. Hecox, 83 Mo. 538; Maxwell v. Railroad, 85 Mo. 105; Matthews v. Railroad, 26 Mo.App. 91; State v. Taylor, 111 Mo. 541; Patterson v. Railroad, 47 Mo.App. 570. (4) The court erred in giving plaintiff's instruction 3 for the reason that it improperly assumes facts. Cases cited in point 3, supra.

J. H. McVay for respondent.

(1) Instruction four, first complained of by appellant, was not a comment on the testimony. It simply stated the law and did not mention one syllable of the testimony. Clark v. Gordry, 69 Mo.App. 6; Tyler v. Hall, 106 Mo. 323; Dunn v. Henley, 24 Mo.App. 579; State v. Munson, 76 Mo. 109; Rose v. Spies, 44 Mo. 20; State v. Marshall, 137 Mo. 463; Fullerton v. Fordyce, 144 Mo. 519; Baker v. Railroad, 147 Mo. 140; R. S. 1899, sec. 687. (2) The first instruction given by the court did not require too high a degree of care. Furnish v. Railroad, 102 Mo. 438, and cases therein cited; Leslie v. Railroad, 88 Mo. 50; Jones v. Railroad, 31 Mo.App. 614; Smith v. Railroad, 108 Mo. 243; Powers v. Railroad, 60 Mo.App. 481. There was no conflict between this instruction and the one given for defendant on the same point. (3) Instruction two, given for the plaintiff, is not vulnerable to the objection urged by the defendant, that it assumed that plaintiff's wife was healthy and strong, and that her society, health, strength and usefulness were impaired, and that this impairment was the result of defendant's negligence. Instruction two states the law. Brown v. Railroad, 31 Mo.App. 661 and cases therein cited; Van Nata v. Railroad, 133 Mo. 13; McGuire v. Railroad, 43 Mo.App. 354; Bentley v. Vette, 61 Mo.App. 281; Taylor v. Scherpe & Cohen Iron Co., 133 Mo. 349; Fields v. Railroad, 80 Mo. 203; Pope v. Railroad, 99 Mo. 400; Brown v. Emerson, 66 Mo.App. 63; Robinson v. Estes, 53 Mo.App. 582; Blackman v. Cowen, 11 Mo.App. 589; Klutts v. Railroad, 75 Mo. 642; Young v. Webb City, 150 Mo. 333. (4) In its instruction on the measure of damages, the court should, as far as possible, point out what are and what are not elements of damage appropriate for the jury to consider, and thus keep them within the bounds of legitimate inquiry. Young v. Webb City, 150 Mo. 333; Schaub v. Railroad, 106 Mo. 74; Chilton v. St. Joseph, 143 Mo. 192; Goss v. Railroad, 50 Mo.App. 614; Chartrand v. Railroad, 57 Mo.App. 425; Haniford v. Kansas City, 103 Mo. 172; Rosenkrantz v. Railroad, 108 Mo. 9; Bigelow v. Railroad, 48 Mo.App. 367; Russell v. Inhabitants of Columbia, 74 Mo. 480. (5) The judgment is for the right party and should be sustained. Hall v. Goodnight, 138 Mo. 576; State v. Branch, 151 Mo. 622; Doyle v. Trust Co., 140 Mo. 1; Town of Hurdland v. Hardy, 74 Mo.App. 614; Barkley v. Barkley Cemetery Assn., 153 Mo. 300; Langston v. Railroad, 147 Mo. 457; Baustian v. Young, 152 Mo. 317; Fields v. Railroad, 80 Mo.App. 603; Fugate v. Miller, 109 Mo. 291; Fitzgerald v. Barker, 96 Mo. 661; Henry v. Railroad, 113 Mo. 525.

OPINION

BROADDUS, J.

--The plaintiff sues as the husband of Mary Freeman, who is alleged to have been injured by the negligence of defendant while she was a passenger on one of its cable cars, on the eighteenth day of July, 1900. The injury complained of occurred at the crossing of defendant's cable tracks at Twelfth street and Troost avenue in Kansas City, Missouri. It is claimed by plaintiff that his wife's injuries were occasioned by a sudden stop of the train, upon which she was a passenger, which was caused by "the unskillful, careless and negligent management of said car and its equipment, by the defendant," and "by reason of the equipments of the track, negligently and carelessly being allowed by said defendant to become and remain out of repair."

A cable car, it is conceded, is propelled by a cable rope running in a conduit below the surface of the street; a grip-shank fastened to the car runs along through a narrow slot extending under the ground, where it grasps the moving rope, and thus power is given to move the train, the gripping and releasing of the rope being done by a lever which loosens or tightens the jaws of the grip-shank upon the rope. At cable crossings, of necessity, one rope must pass under another, and it is necessary to throw the rope entirely out of the grip upon this line so as to permit the cable to be depressed and the lever to go above the other cable, thus letting the car, by its own momentum, pass over without obstruction.

Where the accident in question occurred, the Twelfth street cable line had the lower cable, and in order to make the crossing from east to west, as the car in question was going, the gripman would give the car momentum to carry it over Troost avenue, open his grip at a certain point, when some appliance, called the "let go" removes the rope from the grip, and the rope is again caught after the crossing is made. For the protection of the Troost avenue cable, there is placed in the conduit a block of wood called the "dead man." Plaintiff claimed that the accident in question was caused by the failure of the gripman to let go of the rope at Troost avenue, while the defendant claimed there was some little obstruction unnoticeable in its nature, that got in the slot which caused the same to be blocked so as to suddenly stop the car. In addition, the plaintiff further claimed that even if the train did strike some obstruction in the slot, the defendant was guilty of negligence in the management of its car which was the cause of it.

The evidence in the case was somewhat conflicting. There was testimony tending to show that the gripman in charge of the train, when he arrived at the crossing of the two cables, did not throw his cable so as to release his grip, but that he stood in his position without taking any action until he was thrown from it by the force of the collision. The evidence of the defendant tended to show that there was no defect in the appliances of the train, nor that the car or track was out of repair, but that the accident was caused by the grip running through the slot striking some obstruction, which from its nature was unnoticeable by the operators of the train. The cause was submitted to a jury upon the evidence and instructions of the court. The finding and judgment were for the plaintiff in the sum of $ 1,000, from which defendant appealed.

There are many grounds alleged why the cause should be reversed. In plaintiff's first instruction the jury were told that if "the said accident could have been prevented by the exercise of the utmost human skill, diligence and foresight on the part of the defendant's" agents and employees, the jury were instructed to find for the plaintiff. It is contended that this was requiring too high a degree of care, and was in conflict with defendant's instruction number two, which was to the effect, that the defendant "was not bound to use more care than was reasonably practicable."

In Furnish v. Railroad, 102 Mo. 438, the court, in discussing the question, said: "The care required of a railroad towards its passengers may also be defined as the highest practicable care, caution and diligence which capable and faithful railroad men would exercise under similar circumstances." Judge BARCLAY, who delivered the opinion of the court, in commenting on the instructions in that case said: "Throughout the instructions it is asserted that the duty, owing by a steam railway carrier to its passengers, is to furnish reasonably safe and sufficient roadbed, track, cars and engine, so far as human skill, diligence and foresight could provide," and that defendant "is responsible for all injuries from slight negligence on its part." In another part of the opinion the import of the words, "utmost human skill, diligence and foresight," as used by the court, is explained to be "such skill, diligence and foresight as is exercised by a very cautious person under like circumstances." This is substantially and almost literally the same language as is approved by the...