Harrow v. Kansas City Public Service Co.
| Decision Date | 09 October 1950 |
| Docket Number | No. 41586,No. 2,41586,2 |
| Citation | 233 S.W.2d 644,361 Mo. 42 |
| Parties | HARROW v. KANSAS CITY PUBLIC SERVICE CO. et al |
| Court | Missouri Supreme Court |
Harry L. Jacobs, Robert J. Coleman, J. M. Lommis, and Walter A. Raymond, all of Kansas City, for appellant.
Charles L. Carr, A. C. Popham and Sam Mandell, all of Kansas City (Popham Thompson, Popham, Mandell & Trusty, Kansas City, of counsel), for respondent Kansas City Public Service Co.
BOHLING, Commissioner.
This is an appeal by Marjorie Harrow from an order awarding the Kansas City Public Service Company, a corporation (hereinafter designated defendant), a new trial in an action wherein she recovered a judgment for $15,000 for the wrongful death of her husband, Charles Harrow. Plaintiff joined Roy Heath as codefendant but the court sustained his motion to dismiss and no further action was taken as to him. Defendant was awarded a new trial on account of error in plaintiff's instruction submitting a recovery under the humanitarian rule for failure to warn, or to slacken speed, or to stop. The facts, briefly, follow:
About 6:30 p. m. October 5, 1946, Charles Harrow, who was 69 years of age, was crossing Troost avenue from the east to the west at about 3610 Troost, Kansas City, Missouri. This was about 100 to 143 feet south of the south curb line of 36th street.
Troost avenue is 50 to 55 feet wide from curb to curb and double streetcar tracks occupy the middle of the street, the inside rails being about 5 feet apart. There was a distance of about 5 feet between the north and the southbound tracks. The weather was clear. The street was level and dry. It was dark but the street lights were on, as were the automobile headlights; and the streetcar headlight was on dim. The southbound traffic on Troost was heavy, a double line of automobiles were moving south at the time.
Roy Heath testified he was driving his automobile south between 15 and 20 miles an hour, next to the automobiles parked along the west curb and west of the west rail of the southbound streetcar tracks, and that there were automobiles in front of and behind his automobile. Other witnesses put Heath's automobile in the east line of the southbound automobile traffic and on the southbound streetcar tracks, and one witness stated there were only one or two southbound automobiles and Heath's automobile was the last one.
Heath testified that when he first saw Mr. Harrow he was standing between the two streetcar tracks, probably 4 to 6 inches west of the west rail of the northbound tracks, facing directly west and 20 to 30 feet south of Heath.
At the time one of defendant's streetcars was traveling north on the northbound track. The sides of the streetcar overhung the rails 18 inches. The streetcar was coasting, the power was off and it was moving about 12 miles an hour.
The motorman, Paul W. Hinton, testified that he first saw Mr. Harrow about 30 to 40 feet north of the streetcar, standing 4 feet to the west of where the northbound streetcar would pass; that Mr. Harrow was standing perfectly still, facing directly west and he never turned his head or looked in the direction of the streetcar; that Mr. Harrow was not near the west rail of the northbound tracks, and that witness looked down to his left at Mr. Harrow standing there as the front of the streetcar passed Mr. Harrow. After the front of the streetcar passed Mr. Harrow, witness felt something hit the side of the streetcar about 12 feet back of the front and 6 feet behind his seat.
There was no warning signal from the streetcar, and its speed was not slackened.
Mr. Heath testified he did not slow the speed of or swerve his automobile; and that after he passed Mr. Harrow there was a slight thud against the rear of his automobile.
There was evidence on behalf of plaintiff that defendant's streetcar struck Mr. Harrow and spun or threw him against the rear of Mr. Heath's automobile which was traveling in the southbound streetcar tracks.
The streetcar stopped about 20 to 25 feet north of where Mr. Harrow's body was on the southbound tracks. The rear license plate of Mr. Heath's automobile was bent. The motorman examined the streetcar and testified the only mark on it was a brush mark 6 or 8 inches long, shoulder high about 12 feet back from the front of the streetcar.
Mr. Harow died on October 10, 1946, from the injuries thus received.
Plaintiff's sole verdict directing instruction, so far as material, read: 'The Court instructs the jury that * * * if you further find that * * * the deceased was standing on Troost Avenue, * * * in Kansas City, Missouri, * * * as mentioned in evidence, within three to twelve inches from the west rail of defendant's north bound streetcar tracks and within the line of travel of said streetcar, and that the defendant * * * was operating one of its streetcars north on Troost Avenue * * *, and if you further find * * * that the defendant * * * saw or * * * could have seen that deceased was in a position of imminent peril and danger of being struck and injured by said defendant's streetcar, in time thereafter * * * to have stopped said streetcar or to have diminished the speed of same, or to have sounded a signal warning of the approach of same, and if you further find * * * that the defendant * * * could thereby have avoided * * * inflicting upon the deceased the injuries from which he died, * * * and if you further find and believe from the evidence that the defendant, its operator and agent, failed to sound a signal warning of the approach of said streetcar, or failed to stop said streetcar, or failed to diminish the speed of said streetcar, and that said failure was carelessness and negligence on the part of the defendant, its operator and agent, and if you further find and believe from the evidence that as a direct result of said carelessness and negligence said streetcar did violently collide with deceased and that as a direct result thereof deceased received injuries from which he died, then plaintiff is entitled to recover * * *.' (Italics ours.)
Defendant contends the humanitarian submission of failure to warn was erroneous because there was no required finding of Mr. Harrow's obliviousness.
Defendant relies upon cases to the effect a warning would afford one not oblivious but aware of his imminent peril no greater knowledge than he possesses, and a failure to warn such a plaintiff would not constitute an essential element of his case or a proximate cause of his injury; as would also be the situation if a plaintiff were in a position of inextricable peril. Kirkpatrick v. Wabash R. Co., 357 Mo. 1246, 212 S.W.2d 764, 768[6, 7]; Jordan v. St. Joseph Ry., Light, Heat & Power Co., 335 Mo. 319, 73 S.W.2d 205, 208; Pentecost v. St. Louis Merchants' Bridge Terminal R. Co., 334 Mo. 572, 66 S.W.2d 533, 535; Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368, 371; Crawford v. Byers Transp. Co., Mo.App., 186 S.W.2d 756, 761[4, 5].
The issue respecting the necessity of requiring a finding of obliviousness in an instruction submitting humanitarian negligence in the conjunctive for a failure to slacken speed and to warn was before the court in Perkins v. Terminal R. Ass'n, 340 Mo. 868, 102 S.W.2d 915, 920, 921; and a majority of the court there held that it was not necessary to require a finding that plaintiff was oblivious to his peril when the instruction required a finding that plaintiff was in a position of imminent peril, as does the instant instruction.
Barnes v. Terminal R. Ass'n, 343 Mo. 589, 122 S.W.2d 907, 909, followed Perkins v. Terminal R. Ass'n, supra. However, the record in the Barnes case discloses that the instruction, so far as material, read: '* * * and if you find * * * that said automobile truck and plaintiff therein became and were in a position of imminent peril of being struck and plaintiff injured by said train * * *, and that plaintiff was oblivious to said peril, then if you further find that the defendant * * * could have seen plaintiff and said truck in such position of imminent peril * * * in time for defendant * * * thereafter * * *' et cetera. (Italics ours.) Consult Scott v. Terminal R. Ass'n, Mo.App., 86 S.W.2d 116, 119.
This contention of defendant is disallowed.
Did plaintiff make a submissible case on slackening the speed of the streetcar? Mr Harrow had stopped on his way across the street from the east to the west. He was standing still, facing the southbound automobile traffic to the west, not moving or turning his head, and was within 3 to 12 inches of the west rail of defendant's northbound streetcar tracks and within the line of travel of the approaching northbound streetcar and, as plaintiff states, 'obviously oblivious' of the approaching streetcar and his imminent peril. When struck by the streetcar he was thrown into the rear portion of Heath's southbound automobile. The streetcar, traveling 12 miles an hour, could have been stopped in a distance of 35 to 40 feet. Its speed could have been more readily slackened.
The term 'slackened' or 'diminished,' referring to speed in a humanitarian instruction, is to be construed in a practical sense and means 'slowed down in the sense that more time would have been required for the locomotive to reach the point of collision than if its speed had not been slackened.' Sevedge v. Kansas City, St. L. & C. R. Co. (Banc), 331 Mo. 312, 53 S.W.2d 284, 287. The humanitarian negligence involved in a failure to stop differs from that involved in a failure to warn or slacken speed in that, broadly put, the avoidance of an impending peril through ability to stop rests solely with the defendant whereas the avoidance of an impending peril through a timely warning or a slackening of speed presupposes cooperative action on the part of the one imperiled in time to escape.
In the Sevedge case the occupants of an automobile had experienced...
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