Gilchrist v. Kansas City Rys. Co.

• Decision Date: 31 July 1923
• Docket Number: No. 22459.,22459.
• Parties: GILCHRIST v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

254 S.W. 161

GILCHRIST v. KANSAS CITY RYS. CO.

No. 22459.

Supreme Court of Missouri, Division No. 1.

July 31, 1923.

Rehearing Denied August 15, 1923.

Appeal from Circuit Court, Jackson County; Daniel, E. Bird, Judge.

Action by Owen L. Gilchrist against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals.firmed conditionally.

Chas. N. Sadler and Louis H. Weiss, both of Kansas City, for appellant.

S. L. Trusty, E. H. Gamble, and. Meanies, Kennard & Trusty, all of Kansas City, for respondent.

JAMES T. BLAIR, J.

This case has been reassigned at this term. Respondent is a fireman in the employ of Kansas City, and was seriously injured when a fire department truck on which he was riding was struck by one of appellant's cars. The jury assessed his damages at $20,000, and thin appeal followed.

There was ample evidence tending to prove the case. Respondent had been a fireman for over 9 years, and had attained the position of lieutenant in the service. He was on duty on April 23, 1918, in charge of station No. 28, at Sixtieth and Troost, from 7 a. m. to 7 p. m. He was subject to call et all times. He lived at 9201 Michigan avenue. Near his home was another station, No. 22, at Thirty-Seventh and Woodland. Respondent went home after 7 p. m., and about 9 p. m. went over to station No. 22. He knew the firemen stationed there. Capt. Heyde was in charge. At 9:08 an alarm came in from Forty-Eighth and Paseo. There was evidence that Capt. Hayde ordered respondent to go with the crew of station No. 22 to the fire, that it was respondent's duty to obey that order, and he took his place upon the fire truck in the course of obedience thereto. The route to the scene of the fire was along Woodland avenue to Swope parkway, and thence west to Paseo. The truck proceeded south along the west side of Woodland. On its front it carried three "bright headlights," "big blazing headlights," a large spotlight, which the chauffeur said was "as big as my head," and "two red lights, one on each dash, to indicate a fire apparatus." The full complement of lights required by the regulations was displayed. A bell or "locomotive gong" was clanging. A siren which was audible for a mile, on a still night like that in question, was shrieking its warning. A street car was moving north on the east track on Woodland. About 200 feet south of Forty-Fifth street the paving under the west or south-bound street car track was in such condition that motor vehicles or wagons could not pass safely over it. This bad condition extended far enough to the west of the south-bound track that the west side of the street could not be used at that point. This defective paving extended 30 or 40 feet along Woodland. This state of things had existed for more than a year before the night in question. In the meantime, hose company No. 22 had, in response to alarms, passed this spot on Woodland many times, and was quite familiar with conditions there. This must have been true of appellant, also. It was its duty to pave between its rails and tracks and 18 inches on each side. The fire truck came down Woodland from Thirty-Seventh on the west or south-bound track. At Forty-Fifth street, about 200 feet north of the bad paving referred to, the driver turned the truck to the left out upon the east or north-bound track. At this time the street car was about 200 feet south of the hole in the paving. It was running north at the rate of about 15 miles per hour. The fire truck was running south at the rate of 15 to 20 miles per hour. Both were proceeding along the same track. The motorman says he saw the lights of the truck before it reached Forty-Fifth, but "could not tell whether it was a commercial truck, a fire truck, or a pleasure vehicle until it got right up close to him." He says he was confident that the driver "would turn off the track," but, "when it got right down close to" him "and kept coming right towards" him, he "tried to stop." An ordinance required that upon the approach of "any fire apparatus * * * the driver of a street car shall immediately stop his car and keep it stationary," and all other vehicles "shall draw up as near as practicable to the right curb of the street and remain at a standstill until such apparatus * * * shall have passed." It was the custom for fire trucks to run on the car tracks and customary for street cars to stop upon their approach. In this case the fire truck reached the south end of the defective paving, and was rapidly passing over to the west or south-bound track. Just before the rear of the truck left the east track the street car struck it, and respondent was thrown violently to the street. The street car ran about 200 feet farther, and was stopped. The fire truck stopped in about its own length. The motorman came back and said to Capt. Hayde, "Honest to God, pardner, I did not see you !" There is evidence that the truck could not have passed safely to the east of the street car.

The appellant assigns for error: (1) Alleged misconduct of a juror; (2) certain rulings on evidence; (3) rulings in giving and refusing instructions; and (4) excessiveness a the verdict. The facts with reference to (1) and (4) appear subsequently.

I. Charles W. Sims was a member of the panel of 18. Codnsel for appellant directed his questions on the voir dire examination to the group. When one of the 18 answered so that counsel was impressed to do so, he examined him further individually. One general question put was whether any of the 18 ever had a claim or suit against appellant for "personal injury or property damage." Three made such answers that they were examined further. One of them was excused from service by the court. Sims made no answer to the question. Appellant challenged him peremptorily. The verdict was unanimous. Soon thereafter Sims was called in other cases. In these, one of them against appellant, he disclosed that he had an action for personal injuries pending against appellant. This disclosure by Sims came to appellant's knowledge after the trial in this case. Sims' affidavit was filed in opposition to the motion. He stated that his first experience in a lawsuit was in this case; that he knew nothing about court procedure; that he was confused by the novelty of his first appearance in court; that he did not hear or understand that he was asked whether he had a suit or claim against appellant; that he had no purpose to serve in concealing the fact that he had an action pending; that he would have disclosed it had he heard or understood the question; that in the next case in which he was called he was made to understand a like inquiry, and promptly answered as the fact was, as well, also, in two other cases in the next day or two; that he had no bias or prejudice against the company, and had never had any dealings with it except the "filing of said claim referred to for personal injuries which occurred by the car leaving the track;" that he had never seen or heard of respondent, any of his witnesses, or any of his lawyers until he was called to be examined; that he did not understand or hear any such question as forms the basis of this complaint.

The record does not disclose the nature of the negligence or of the injuries on which Sims' case is alleged to be founded. The showing does not bring this case within the statute concerning challenges for cause. Section 6632, R. S. 1919. The position of appellant is that the fact he had sued appellant for damages for personal injuries shows Sims was prejudiced against appellant in this case. This question of prejudice is one triable by the court, and its ruling on the facts is not lightly overthrown. Coppersmith v. qty. Co., 51 Mo. App. loc. cit. 365, and cases cited. The trial court has found against the suggestion that Sims willfully concealed a material fact in order to get on the jury and wreak vengeance on-appellant. It has found against the charge that he was prejudiced. There is nothing wrong with this finding. There is no showing that Sims' injury or the character of the accident of which he complained is such as to engender prejudice on his part. He did not serve on the trial jury. The verdict was unanimous. The point must be ruled against appellant under the decision cited and Richardson v. K. C. Rys. Co. (Mo. Sup.) 231 S. W. loc. cit. 940, 941; Pietzuk v. K. C. Rys. Co. (Mo. Sup.) 232 S. W. loc. cit. 991 et seq.

II. (1) Respondent was asked: "How is your sleep?" An objection was made that "there is nothing in the pleadings about that." Respondent was allowed to answer: "Restless. Q. Restless at night? A. Yes, sir; and then several times, quite frequently, I get up at 2 or 3 o'clock in the morning, or I cannot sleep or breathe lying down. It catches my side, and I cannot lay in no position at all." A motion to strike out on substantially the same ground as the objection quoted was made and overruled. Cases of the type of Hall v. Coal & Coke Co., 260 Mo. loc. cit. 373, 268 S. W. 927, Ann. Cas. 19160, 375, are cited. It was alleged that the injury caused a "concussion of the lungs resulting in a tearing of the tissues and structure thereof." It was also alleged that the injuries included "breaking the bones of five of his ribs on his left side and tearing and lacerating the muscles, ligaments, tendons, nerves, and vessels thereof attached to said ribs, resulting in callouses and adhesion" thereof, and that these injuries are permanent. Evidence tending to prove these allegations was competent. An injury or condition, though not Pleaded, and, therefore, not itself available as a part of the basis for the assessment of damages, nevertheless may be of such character as to constitute evidence tending to prove a condition or injury which is pleaded as a basis of recovery. The former does not lose its competency as evidence because it is not made a part of the cause of action pleaded. Lyons v. Railroad, 253 Mo. loc. cit. 163, 131, 131 S. W. 726, Ann. Cas....