Grubbs v. Public Service Co., No. 29333.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Atwood
• Citation: 45 S.W.2d 71
• Parties: NONIE GRUBBS v. KANSAS CITY PUBLIC SERVICE COMPANY, Appellant.
• Decision Date: 21 December 1931
• Docket Number: No. 29333.

45 S.W.2d 71 NONIE GRUBBS
v.
KANSAS CITY PUBLIC SERVICE COMPANY, Appellant. No. 29333. Supreme Court of Missouri, Division One. December 21, 1931.

[45 S.W.2d 73]

Appeal from Jackson Circuit Court. — Hon. Clarence A. Burney, Judge.

AFFIRMED.

Charles L. Carr, Harding, Murphy & Tucker and E.E. Ball for appellant.

(1) The peremptory instruction offered by the defendant at the close of plaintiff's case and also at the close of the whole case should have been given. Fanning v. Transit Co., 103 Mo. App. 157; Sims v. Railroad Co., 116 Mo. App. 579; Haffey v. Railway, 154 Mo. App. 495; Watson v. Railway Co., 133 Mo. 251; Holwerson v. Railway Co., 157 Mo. 226; Guyer v. Mo. Pac., 174 Mo. 350; Moore v. Lindell Ry. Co., 176 Mo. 542; Schmidt v. Railroad, 191 Mo. 234; Mockowik v. Railroad Co., 196 Mo. 570; Cahill v. Railway, 205 Mo. 394; Sissel v. Railroad, 214 Mo. 515; Kinlen v. Railroad, 216 Mo. 164; Pope v. Railroad, 242 Mo. 239; Keele v. Railroad, 258 Mo. 78; Butler v. United Rys. Co., 293 Mo. 259; Banks v. Morris & Co., 302 Mo. 254; Stewart v. Ry. Co., 308 Mo. 383; Hebeler v. Street Ry. Co., 132 Mo. App. 551; Barnard v. St. Ry., 137 Mo. App. 684; Tuck v. Railway Co., 217 Mo. App. 442; Albright v. Oil Co., 206 Mo. App. 412; Zumwalt v. Railroad Co., 266 S.W. 717; Finn v. United Rys. Co., 267 S.W. 416; Grief v. Lead Co., 274 S.W. 83; Allen v. Autherieth, 280 S.W. 79; Pett v. Sales Co., 281 S.W. 973; Moore v. Railway, 283 S.W. 732; Conley v. Railway Co., 284 S.W. 180; Siegel v. Wells, 287 S.W. 775. (2) The court erred in permitting counsel for plaintiff to question plaintiff and her husband concerning the street car tracks making a turn at the place in question and their knowledge thereof. (3) The court erred in taking too active a part in the trial of this case, and in practically taking over the examination in chief of certain witnesses, and in asking leading and suggestive questions. 38 Cyc. 1316; Artz v. Robertson, 50 Ill. App. 27; Lauders v. Railroad, 134 Mo. App. 80; Edwards v. Cedar Rapids, 138 Iowa, 421, 116 N.W. 323; McGinnis v. Railroad, 21 Mo. App. 413; State v. Turner, 125 Mo. App. 21; Dreyfus v. Railroad, 124 Mo. App. 585; Schmidt v. Railroad, 149 Mo. 269; McElwain v. Dunham, 221 S.W. 773; Coal Co. v. Shepard, 112 Ill. App. 458; Kramer v. Riss, 77 Ill. App. 623; Bolt v. Railroad, 38 N.Y. App. Div. 234, 56 N.Y. Supp. 1038; Flynn v. Ferry, 127 Cal. 648, 60 Pac. 434. (4) The court erred in sustaining plaintiff's objection wherein witness Lamberth testified that the street car slowed down to a stop just before the Ford went across and hit the car. (5) The court erred in ignoring objections made by defendant and in refusing and failing to rule thereon. Corning v. Wooding, 46 Mich. 44; Hays v. Smith, 62 Ohio St. 161. (6) The court erred in making prejudicial comment in the presence of the jury and within the hearing of the jury concerning the credibility of the testimony of witness M.R. Cole and the respondent Nonie Grubbs. 38 Cyc. 1322; Hudson v. Hudson, 90 Ga. 581. (7) The court erred in refusing to grant the defendant a new trial, on the ground of newly discovered evidence shown by affidavits in support of motion for new trial. Devine v. Wells, 300 Mo. 177, 254 S.W. 65; R.S. 1919, sec. 1453; Ridge v. Johnson, 129 Mo. App. 541; Thompson v. Emerson, 118 Mo. App. 232; Rickrode v. Martin, 43 Mo. App. 597; St. Joe Co. v. Railroad Co., 148 Mo. 478; 40 Cyc. 2765; Lauders v. Railroad, 134 Mo. App. 80; Cribs v. Power Co., 215 S.W. 762; Galewski v. Casualty Co., 205 Ill. App. 247; Richey v. Robertson, 86 Ore. 525, 169 Pac. 99; Rose v. Kansas City, 125 Mo. App. 231; 30 Cyc. 1322; Hudson v. Hudson, 90 Ga. 581. (8) The court erred in giving Instruction 1 at the request of plaintiff. Allbright v. Joplin Oil Co., 206 Mo. App. 422; Mockowik v. Railroad, 196 Mo. 569; Murphy v. Railroad, 176 Mo. 183; McManamee v. Railroad, 135 Mo. 449; Moody v. Railroad, 68 Mo. 474; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Pope v. Railroad, 242 Mo. 238; Sissell v. Railroad, 214 Mo. 530; Perrine v. Wells, 22 S.W. (2d) 863; Tannehill v. Railroad, 279 Mo. 158, 213 S.W. 822. (9) The court erred in giving Instruction 4 at the request of plaintiff. Bond v. Railroad Co., 288 S.W. 785; Gruenewald v. Iron Works, 5 S.W. (2d) 714; Vaughn v. Magee, 218 Fed. 630. (10) The court erred in refusing Instruction 21 offered by defendant. Pope v. Railroad, 242 Mo. 238; Sissel v. Railway, 214 Mo. 530; Winkler v. Railway, 229 S.W. 231. (11) The court erred in refusing to give Instruction 26 at the request of defendant. (12) The verdict was excessive.

Harry G. Kyle and Walter A. Raymond for respondent.

(1) The peremptory instruction offered by defendant was properly refused. McGinnis v. Ry. Co., 268 Mo. 667, 187 S.W. 1168; Logan v. Ry. Co., 300 Mo. 611, 254 S.W. 711; Ellis v. Met. Street Ry. Co., 234 Mo. 710; Larkin v. Wells, 278 S.W. 1088; Burke v. Pappas, 293 S.W. 145; Highfill v. Wells, 16 S.W. (2d) 103; Hawkins v. Wells, 297 S.W. 195; Wheaton v. Wells, 296 S.W. 1033; Bosley v. Wells, 260 S.W. 128; Bode v. Wells, 15 S.W. (2d) 336; McGowan v. Wells, 24 S.W. (2d) 638. (2) Plaintiff and her husband were properly permitted to testify as to their ignorance concerning the street car tracks turning to the southwest at the place in question. Murphy v. Electric Park Amusement Co., 241 S.W. 654, High v. Railroad Co., 300 S.W. 1105. (3) The court was warranted in taking the part he did in the interest of expediting the case and getting at the true facts. Vernon v. Rife, 274 S.W. 749. (4) There was no prejudicial error to appellant in the court's ruling on witness Lambert's testimony. Bryson v. Baum, 278 S.W. 415. (5)

The court committed no reversible error in failing to rule on some of appellant's objections. Shanahan v. St. Louis, 212 S.W. 852. (6) The court's comments during the testimony of witness Cole and respondent were not prejudicial error. Burton v. Phillips, 7 S.W. (2d) 714; Hutchison v. Safety Gate Co., 274 Mo. 118; Ford v. Pieper, 24 S.W. (2d) 1058. (7) The court committed no error in refusing to grant defendant a new trial on the ground of newly discovered evidence. Mahany v. Ry. Co., 286 Mo. 601, 228 S.W. 825; Devine v. Wells, 254 S.W. 67; MacCullum v. Printing Co., 221 S.W. 158; Fromento v. Hines, 225 S.W. 105; Winn v. Grier, 217 Mo. 461. (8) The court did not err in giving Instruction 1 at the request of plaintiff. Banks v. Morris & Co., 302 Mo. 254; Zumwalt v. Ry. Co., 266 S.W. 717; Murray v. Wire & Iron Works Co., 238 S.W. 840; McKenzie v. Randolph, 257 S.W. 127; Ward v. Ry. Co., 277 S.W. 911; Sibrell v. Ry. Co., 9 S.W. (2d) 915. (9) The court did not err in giving Instruction Four at the request of plaintiff. Standefer v. Fleming, 298 S.W. 139; Gilchrist v. Ry. Co. (Mo. Sup.), 254 S.W. 165; Boyer v. Ry. Co. (Mo. Sup.), 293 S.W. 388. (10.) The court did not err in refusing defendant's Instruction Number 26. Sidway v. Land & Live Stock Co., 163 Mo. 342; Wendt v. Real Estate Trust Co., 299 S.W. 69; Jeffries v. Fire Clay Products Co. (Mo. App.), 233 S.W. 262. (11) The verdict is no more than reasonable compensation for plaintiff's injuries.

ATWOOD, J.

This is a personal injury case growing out of a collision between a street car, owned by the Kansas City Railways Company and operated by its receivers, and an automobile in which respondent, Nonie Grubbs, was riding. Appellant, Kansas City Public Service Company, is the successor of the Kansas City Railways Company and as such defended the action.

The case was submitted under the humanitarian rule, plaintiff's petition stating "that on November 18, 1925, she was riding as a passenger in a Ford sedan which at that time was being driven and operated north on Benton Boulevard and was approaching the intersection of that street and St. John Avenue, both public streets in Kansas City, Jackson County, Missouri; that when the automobile in which plaintiff was riding reached St. John Avenue, it was turned east on St. John Avenue and along the south side of said street; that at that time the agents and servants of the receivers were driving and operating one of said receivers' street cars west along St. John Avenue and were approaching said intersection; that about seventy-five feet east of Benton Boulevard the wesbound car tracks on St. John Avenue turned towards the southwest and across the south side of St. John Avenue; that as the automobile in which plaintiff was riding reached a point on St. John Avenue about seventy-five feet east of the east curb line of Benton Boulevard and approaching the said car tracks the agents and servants of the said receivers carelessly and negligently drove said street car around said turn on said track and into violent collision with the automobile in which plaintiff was riding, turning said automobile over and throwing plaintiff to the pavement with great force and violence," and that as a direct result thereof plaintiff received certain injuries. The petition further alleges "that the aforesaid injuries and injurious consequences which are permanent, progressive and lasting were directly caused by the negligence of the defendant acting through its said agents and servants in this to-wit: That they negligently drove said street car into violent collision

45 S.W.2d 74

with the automobile in which plaintiff was riding after they saw or by the exercise of ordinary care could have seen plaintiff in a position of peril and oblivious to her danger in time by the exercise of ordinary care to have sounded a warning, slowed down said street car or stopped the same in time to have avoided the collision but negligently failed so to do."

The answer of defendant, Kansas City Public Service Company, contains a general denial, and an allegation that plaintiff's "injuries, if any, were caused by her negligence and/or the negligence of the driver of said automobile in which she was riding at said time, for which negligence this defendant is not...