Girratono v. Kansas City Public Service Co.

• Citation: 243 S.W.2d 539
• Decision Date: 05 November 1951
• Docket Number: No. 21619,21619
• Parties: GIRRATONO v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Court of Appeal of Missouri (US)

Page 539

243 S.W.2d 539

GIRRATONO v. KANSAS CITY PUBLIC SERVICE CO.

No. 21619.

Kansas City Court of Appeals, Missouri.

Nov. 5, 1951.

Charles L. Carr, Frank J. Rogers, Kansas City, for appellant.

Thomas E. Hudson, David T. Cavanaugh and Hudson, Whitcraft & Cavanaugh, Kansas City, for respondent.

DEW, Judge.

The respondent was plaintiff in the trial court and brought this action to recover damages for personal injuries claimed to have been incurred through the negligence of the defendant (appellant). The verdict and judgment were in favor of plaintiff in the sum of $7,500, and the defendant has appealed.

The plaintiff's petition avers, in substance, that on January 1, 1948, he was a fare-paying passenger on one of defendant's buses bound eastward on Independence Avenue in Kansas City, Missouri, and that at the intersection with Prospect Avenue, the operator of said bus set the plaintiff down and caused him to alight from the rear door of the bus near to and against a large bank of snow, and immediately thereafter started the bus forward in such manner as to cause it to skid upon the pavement and strike the plaintiff down with great force and violence, causing the permanent injuries pleaded. The particular negligence alleged was in failing to provide and allow plaintiff sufficient room and space alongside defendant's bus within which safely to alight therefrom; failing to provide plaintiff a reasonably safe place in which to alight and depart from the bus; failing to allow plaintiff sufficient time to alight and reach a position of safety before starting the bus; starting the bus forward immediately after plaintiff had alighted therefrom in such manner as to cause it to skid upon the pavement, over, upon and against the plaintiff; operating the bus in such manner as to endanger the safety of plaintiff and others upon the roadway; failing to maintain a proper lookout ahead and laterally to avoid injury to the plaintiff, which it should have done in the exercise of the highest degree of care. The petition further alleges, as a result of the carelessness and negligence described, that plaintiff suffered personal and permanent injuries, incurred medical expense, and loss of earnings, past and future, for all of which plaintiff prayed judgment for $15,000.

The answer of the defendant was in the nature of a general denial and plea of contributory negligence.

At the conclusion of the trial the defendant moved for a directed verdict in its favor, which was overruled by the court. In substance the grounds for that motion were: failure of the petition to state facts to entitle plaintiff to any relief; failure to prove defendant guilty of any act of negligence directly causing any injury to plaintiff; that plaintiff had alighted safely from the bus and was no longer a passenger at the time of the occurrence; that the mere showing of the skidding was no proof of negligence; that no negligent act on the part of defendant's operator was shown to cause the bus to skid, and no evidence that the manner in which the bus was started was likely or reasonably certain to cause it to skid into plaintiff. That motion was overruled by the court. After verdict and judgment defendant filed a motion for new trial and a motion to set aside the verdict and judgment, and to enter judgment for defendant, in accordance with its motion for a directed verdict. The latter motion adopted the grounds stated in the motion for a directed verdict and assigned the additional ground that the evidence was not sufficient to support a verdict in favor of plaintiff. These motions were overruled.

According to plaintiff's evidence, several inches of snow and sleet had fallen upon the streets the night before the accident, and they were slick. After signaling for a stop at Prospect Avenue, a regular stop, the bus stopped near the southwest corner of the intersection. Generally along the curb on the right hand side of Independence Avenue, including the place where the bus stopped, snow had been piled up about waist high, extending out into the street about three feet. There was a space of only about 18 inches between the snow bank and the right side of the bus at the furthermost of the rear exits at which plaintiff and two other passengers alighted. There was no path through the snow to the sidewalk at that point, but there was one near the front of the bus at the intersection by the sidewalk line. One of the passengers preceding the plaintiff had made his way forward to the clearing connecting with the sidewalk, and the second passenger had not yet reached that point when he noticed the bus spinning its wheels and skidding toward him, whereupon he threw himself over the snow bank and escaped, yelling as he did so, to warn the plaintiff. The plaintiff had no time to extricate himself from the position in the arrow strip between the bus and the snow bank before the bus was again put in motion and he was somewhat facing it when it started up, 'speeded up and started skidding', spinning its wheels, and swerved into the plaintiff, knocking him down and injuring him as he described in his testimony. The bus continued forward at an angle, skidding further toward the curbline, and its rear demolishing a power pole near the sidewalk on Prospect Avenue, from whence it proceeded across the street and stopped, and the motorman returned to the scene of the accident.

The theory of plaintiff's case was submitted in his Instruction No. 1, which is as follows:

'Instruction One

'The Court instructs the jury that if you find and believe from the evidence that at the time and place referred to in evidence plaintiff was a fare-paying passenger on defendant's trolley bus on Independence Avenue, and that when said bus reached the intersection of Independence and Prospect Avenue the said bus stopped for the purpose of taking on and discharging passengers and that plaintiff exercising ordinary care for his own safety, if so, alighted from said bus at the rear door thereof near to and along side a large bank of snow, if you so find, and immediately thereafter, if so, before the plaintiff reached a position of safety, if you so find, and when the operator of said bus saw or by the exercise of ordinary care should have seen that plaintiff had not yet reached a position of safety, if so, the operator carelessly and negligently started the bus forward in such manner as to cause it to skid upon the pavement, if you so find, and to strike and knock down the plaintiff, if so, and as a direct result of the negligence of the operator, as aforesaid, if you so find, the plaintiff was caused to be injured, if so, then your verdict shall be in favor of plaintiff and against the defendant.'

It will be observed that the only act of negligence submitted by the above instruction was that after plaintiff had alighted, under the conditions pleaded in his petition and shown in evidence, the defendant 'negligently and carelessly started the bus forward in such a manner as to cause it to skid upon the pavement and to strike and knock down the plaintiff.'

Defendant's first contention is that the court erred in overruling its motion to set aside the judgment and to render judgment in its favor in accordance with its motion for a directed verdict. In support of its contention defendant asserts that the plaintiff had safely alighted from the bus and the relationship of passenger and carrier had terminated, and the only fault shown by plaintiff's evidence on defendant's part was that the bus skidded into him, which did not constitute negligence. The defendant argues that the case was, in effect, erroneously submitted on the res ipsa loquitur theory, and without evidence to justify the application of that doctrine in the case. It contends that the sole act of negligence submitted was general in character and that the evidence was insufficient to support a verdict thereon. The plaintiff denies that the case was submitted on the mere fact of skidding of the bus after the plaintiff had alighted, but that the other facts and circumstances shown in the evidence must be considered in the conduct of the plaintiff and the defendant.

Defendant's Point 1 involves first a matter of procedure. If plaintiff made a submissible case on any act of negligence pleaded, the court properly overruled the motion for directed verdict at the close of all the evidence. Defendant here confines its argument on Point 1 entirely to the nature, effect and want of proof of the sole issue of negligence thereafter submitted by the plaintiff in his Instruction No. 1. Such after-trial motion required the court to consider the record, not as of the time the motion for directed verdict was filed, but in the light of and as supplemented by the subsequent record, which disclosed what act of negligence had been submitted to the jury. For the purpose of the after-trial motion to set aside the judgment and to enter judgment for defendant, no act of negligence pleaded but not submitted could then be considered. If recovery on the sole issue submitted was improper, the verdict and judgment should have been set aside on the after-trial motion.

Sections 112 and 113 of the new Code, RSMo1949, Secs. 510.280, 510.290, abolish the demurrer to the evidence and substitute the motion for a directed verdict. The motion for a directed verdict under the new code challenges, as did the former demurrer to the evidence, all the assignments of negligence covered by the pleadings. If the motion is overruled and the plaintiff thereupon submits only part of such assignments, he does so with knowledge that such assignment or assignments so submitted had been challenged, and the court is deemed to have known, when it permitted such submission, whether it regarded the issue or issues submitted had been supported by sufficient evidence. Thereafter, when the defendant renews his objections by his after-trial motion to set aside the judgment and for judgment...