Gay v. Kansas City Public Service Co.

• Decision Date: 09 October 1934
• Docket Number: No. 18100.,18100.
• Citation: 77 S.W.2d 133
• Parties: GAY v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

77 S.W.2d 133

GAY v. KANSAS CITY PUBLIC SERVICE CO.

No. 18100.

Kansas City Court of Appeals. Missouri.

October 9, 1934.

Rehearing Denied November 13, 1934.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

"Not to be published in State Reports."

Action by Jessie Gay against the Kansas City Public Service Company and another. From an adverse judgment, the named defendant appeals.

Affirmed.

Charles L. Carr and Hogsett, Smith, Murray & Trippe, all of Kansas City, for appellant.

Allan R. Browne, Benj. W. Grover, and Grover & Browne, all of Kansas City, for respondent.

TRIMBLE, Judge.

The plaintiff, a colored woman, sued to recover damages for personal injuries sustained while riding "as a passenger in a truck being operated east on Thirty-first street at or near the intersection on Benton Boulevard in Kansas City, Missouri." She alleged that the defendant Kansas City had allowed a large number of concrete or asphalt blocks to remain in said Thirty-First street when said defendant "knew, or should have known by the exercise of ordinary care, of the existence of said blocks and that they rendered said street dangerous, in time, by the exercise of ordinary care on its part, to have removed said blocks or remedied said condition, * * *" but defendant Kansas City failed to do so, and its negligence and that of "defendant Kansas City Public Service Company operated to cause the injuries to plaintiff as hereinafter set forth."

The negligence alleged against the defendant Kansas City Public Service Company was that it negligently failed to sound an audible warning or keep a sufficient lookout, and negligently operated its street car at a high and dangerous rate of speed, namely, in excess of 3 miles per hour, negligently failed to maintain its braking equipment in good repair, negligently failed to stop its car at the regular car stop at Thirty-First and Benton, and negligently failed to slow down its street car at the intersection.

Also the alleged violation of the humanitarian rule in that it knew, or by the exercise of ordinary care could have known, of plaintiff's position of peril and her obliviousness thereto or inability to extricate herself therefrom, and, although defendant, by ordinary care, could have exercised the means at hand in time to have stopped, or slowed down, or sounded a warning in time to have avoided a collision with plaintiff, yet defendant negligently failed to do these things.

That the truck on which plaintiff was riding was "by reason of the facts aforementioned and alleged against Kansas City caused to strike one of the aforementioned concrete or asphalt blocks" about 14 yards from the southwest corner of Thirty-First and Benton and about 1½ yards north from the south curb of Thirty-First street and be thrown across the west-bound street car track of said defendant Kansas City Public Service Company, at said time and place, and was negligently, as aforementioned, struck by said defendant street car, being negligently operated as aforementioned west upon said street car track. Judgment was prayed for $5,000.

The above-mentioned petition was filed January 21, 1931, and on March 9, 1931, each defendant filed a separate answer consisting of a general denial.

Thereafter, at the September term, 1932, to wit, on November 2, 1932, a trial was had, resulting in a verdict for $1,825 against the Kansas City Public Service Company, but in favor of the defendant Kansas City.

Afterwards judgment was rendered that plaintiff take nothing as to defendant Kansas City, and that it go hence without day and recover its costs.

Thereafter at the November term, 1932, to wit, on December 31, 1932, the trial court sustained the defendant Kansas City Public Service Company's motions for new trial and in arrest of judgment. (The record does not contain these motions, nor the reasons for which they are sustained.)

At the January term, 1933, to wit, on January 30, an amended petition was filed against both defendants as if the defendant Kansas City was still in the case (notwithstanding the verdict in its favor at the September term, November 3, 1932).

Said amended petition is, in substance, the same as the original petition, except that plaintiff is alleged to be a guest, instead of a passenger, on the truck, and the only negligence alleged against the public service or street car company is a violation of the humanitarian rule stated in these words:

"That at said time and place the defendant Kansas City had allowed to come into existence and remain in existence a number of large concrete or asphalt blocks or blocks in said 31st Street and that said blocks rendered said street dangerous; that defendant knew, or should have known by the exercise of ordinary care of the existence of said blocks and that they rendered said street dangerous in time by the exercise of ordinary care on its part to have removed said blocks or remedied said condition so that said blocks would not be dangerous to ordinary traffic upon said street but that defendant Kansas City failed so to do and that the negligence of said Kansas City Public Service Company operated to cause the injuries to plaintiff as hereinafter set forth.

"Defendant Kansas City Public Service Company's negligence was stated as follows:

"Although defendant knew or by the exercise of ordinary care could have known that plaintiff was in a position of imminent peril or coming into a position of imminent peril and oblivious of that peril or unable to extricate herself from that peril, and although defendant by the exercise of ordinary care could have thereafter exercised the means at its command in time with safety to the street car and its occupants to have stopped or slowed down or sounded a warning in time to have avoided said collision with the truck in which plaintiff was riding, yet defendant negligently failed to do these things, but instead negligently ran against the truck in which plaintiff was riding knocking her in and about and against said truck and injuring her as hereinafter set forth.

"That the truck upon which plaintiff was riding was caused, by reason of the facts aforementioned by Kansas City, to strike one of said large concrete, or asphalt blocks about fourteen yards west from the southwest corner of 31st and Benton and about one and one-half yards north from the south curb of 31st Street and be thrown, propelled and hurled across the westbound street car track of said defendant Kansas City Public Service Company, at said time and place, and was negligently, as aforementioned, struck by defendant Kansas City Public Service Company's street car being negligently, as aforementioned, operated west upon said street car track, at said time and place, whereby plaintiff was injured as follows," etc.

In this amended petition plaintiff placed her damages at $10,000, and prayed judgment for that sum "against the defendants."

On January 30, 1933, the defendant street car company asked leave to, and with such leave did, refile its answer theretofore filed to the original petition.

Thereupon, on January 30, 1933, the "Second Trial" was entered upon and continued for three days until on February 1, 1933, when the jury returned a verdict set forth in the record as follows:

"Second Verdict.

"We, the undersigned jurors, find the issues for the plaintiff, and do assess her damages at Three Thousand Dollars ($3,000.00)."

Said verdict was signed by nine jurors. The street car company, within due time, filed motions for new trial and in arrest; and, on the same day, plaintiff filed a paper saying she "confirms the action of the jury in the above entitled case heretofore taken on November 3, 1932, when it found the issues for defendant Kansas City, and dismisses as to defendant Kansas City only."

The trial court, on the 18th day of February, 1933, overruled the Kansas City Public Service Company's motions for new trial and in arrest, and defendant thereupon duly appealed.

Plaintiff was riding in the cab of an open body truck on the right of the driver, her son Levester. She had her baby, 14 months old, in her arms; her husband was seated on the floor of the truck in the doorway on the right-hand side. They were going out to Leeds or near there. It was November 10, 1930, about 1:10 in the afternoon of a "foggy-like, kind of misting rain" day. The street was not slick, but damp.

As the truck approached Benton boulevard, it struck "a large rock and threw us across the street car tracks and the truck came to a stop and the street car hit it." When the truck struck the rock, the truck was going east down Thirty-First street close to the south curbing, and south of the east-bound street car tracks. The rock was a large piece of asphalt. When the truck hit the lump of asphalt, the truck was thrown over on the street car track and stopped with the left front wheel on the north street car track, and a street car going west hit it. When the truck stopped, the street car was back east of it. "I guess it must have been about—I don't know—ten or twelve feet, I guess." Witness (plaintiff's husband) later testified he did not know exactly how far it was back, he could not see it from his position on the floor of the truck. The street car hit the truck, for the latter was standing still; the front end of the street car hit the left front part of the truck. The street car went from 1 to 5 feet maybe, "and then backed off and let the truck down"; it tore the truck up and was facing "kind of northeast like." No bell was sounded by the street car. Witness did not see whether the street car slackened speed or not. The collision tore off the truck's left front wheel, the left fender, and "busted" the radiator. Going west on Thirty-First street it is up grade; going east it is down hill, but the truck never got across the street car track.

On cross-examination, witness said he was sitting on the floor with his feet out on the right side on the...