Harvey v. Gardner

• Citation: 223 S.W.2d 428,359 Mo. 730
• Decision Date: 12 September 1949
• Docket Number: 41026
• Parties: Houston Harvey, Respondent, v. Henry A. Gardner, Trustee for the Alton Railroad Company, a Corporation, and Kansas City Terminal Railway Company, a Corporation, Appellants
• Court: Missouri Supreme Court

223 S.W.2d 428

359 Mo. 730

Houston Harvey, Respondent, v. Henry A. Gardner, Trustee for the Alton Railroad Company, a Corporation, and Kansas City Terminal Railway Company, a Corporation, Appellants

No. 41026

Supreme Court of Missouri

September 12, 1949

Motion for Rehearing or to Transfer to Banc Overruled October 10 1949.

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Affirmed (subject to remittitur).

SYLLABUS

Plaintiff bus passenger was injured when the bus in which he was riding was struck by a locomotive operated by the Alton Railroad Company over the tracks of the Kansas City Terminal Railway Company in Kansas City, Kansas. After settling with the bus company, a verdict was obtained against both railroad companies. There were jury issues against the Alton of operating without a headlight, giving no warning signals, violating a speed ordinance and other issues of primary negligence. The ordinance was not void. There was a jury issue against the Terminal of failure to maintain a flagman at a busy crossing. Allegations in plaintiff's petition as to the bus driver's negligence are not conclusive, and such negligence may not be imputed to plaintiff. Under the Kansas rule the railroad companies are liable for concurrent negligence. All instructions are upheld. The verdict of $ 8,000 was excessive by $ 3,000.

Charles M. Miller for appellant Gardner, Trustee.

(1) The railroad crossing accident out of which this suit arises, occurred in Kansas and is therefore governed by the law of Kansas, and under the law of Kansas, which plaintiff invokes, the plaintiff proved no actionable negligence against the defendant Gardner, Trustee. Richards v. C., R.I. & P.R. Co., 157 Kan. 378, 139 P.2d 427; Whitcomb v. A., T. & S.F. Ry. Co., 128 Kan. 749, 280 P. 900; Ross v. C., R.I. & P. Co., 165 Kan. 279; Christy v. A., T. & S.F. Ry. Co., 154 Kan. 713, 121 P.2d 208; Benton v. Railway Co., 100 Kan. 165, 163 P. 801; Railroad v. Justice, 80 Kan. 10, 101 P. 469; Kennedy v. C., R.I. & P. Co., 2 Kan.App. 693, 43 P. 802. (2) The negligence pleaded in plaintiff's petition and proven by plaintiff, with respect to the operator of the bus of the Kansas City Public Service Co., not stopping the bus and looking and listening, and approaching the crossing at a high speed, was the proximate cause of the collision of the bus with the train and bars any recovery against defendant Gardner, whose alleged negligence, if any, was at most remote. Whitcomb v. A., T. & S.F. Ry. Co., 128 Kan. 749, 280 P. 900; Richards v. C., R.I. & P.R. Co., 157 Kan. 378, 139 P.2d 427; Benton v. Railway Co., 100 Kan. 165, 163 P. 80; Railroad v. Justice, 80 Kan. 10, 101 P. 469. (3) The last clear chance doctrine of Kansas is not applicable to the facts of this case. Ross v. C., R.I. & P. Co., 165 Kan. 279; Bass v. A., T. & S.F. Ry. Co., 143 Kan. 740, 57 P.2d 467; Bucklin v. A., T. & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280; McBeth v. A., T. & S.F. Ry. Co., 95 Kan. 364, 148 P. 621. (4) Plaintiff is bound by the allegations of his petition, as to the operator of the bus and is estopped to deny them. Weil v. Posten, 77 Mo. 284; Brice v. Sims, 34 Mo. 246; Knoof v. Kelsey, 102 Mo. 291, 14 S.W. 10; Davis v. Bond, 75 Mo.App. 32; Kelly v. Briggs, 290 S.W. 105; Farm & Home Sav. v. Stubbs, 98 S.W.2d 320; Otrich v. Railroad, 154 Mo.App. 420, 134 S.W. 1199. (5) The trial court erred in giving plaintiff's Instruction 1, because the instruction did not properly and correctly declare the law applicable to this case and was erroneous and misleading. See cases cited under Points (1) to (4). (6) The trial court erred in giving plaintiff's Instruction 2, with respect to alleged violation by the train of speed ordinance of six miles per hour of Kansas City, Kansas, enacted in 1901, and permitting recovery against Gardner, because the instruction did not properly declare the law, and was not a proximate cause. Richards v. C., R.I. & P. Co., 157 Kan. 378, 139 P.2d 427. (7) The trial court erred in giving plaintiff's Instruction 3, because it did not properly declare the law, and proceeds on the theory of humanitarian negligence as applied in Missouri, which has no application in Kansas. Ross v. C., R.I. & P. Co., 165 Kan. 279; Bass v. A., T. & S.F. Ry. Co., 143 Kan. 740, 57 P.2d 467; Bucklin v. A., T. & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280; McBeth v. A., T. & S.F. Co., 95 Kan. 364, 148 P. 621. (8) The trial court erred in giving plaintiff's Instructions 5 and 7, and each of them, directing the jury to find against both defendants, if the negligence submitted in other instructions "directly contributed in any degree to cause the collision in question," because the instruction did not properly declare the law and ignored any question of proximate cause and also erroneously directed that any negligence of the bus operator "constituted no defense whatever to plaintiff's action against the present defendants." Whitcomb v. A., T. & S.F. Ry. Co., 128 Kan. 749, 280 P. 900, and other cases cited under Point (1). (9) The trial court erred in refusing defendant Gardner's requested Instructions 8, 9, 10, 11, 12, 13 and 14, and each of them, which were withdrawing instructions of the different elements of alleged negligence against defendant, Gardner, and properly declared the law, and none of the alleged negligence was the proximate cause, and at most was remote, if supported by any evidence. See cases cited under Points (1) to (4). (10) The trial court erred in refusing defendant Gardner's requested Instructions 15, 16 and 17, and each of them, which properly declared the law of Kansas, and bore upon the duty of the bus operator and whether such was the proximate cause, if such was not established as a matter of law. If the proximate cause was one for a jury, these instructions stated every essential element necessary for submission to the jury. See cases cited under Points (1) to (4). (11) The trial court erred in refusing defendant Gardner's Instructions 19, 20 and 22, and each of them, which properly declared the law of Kansas and bore upon the duty of the bus operator and whether such was the proximate cause, if not established as a matter of law, stating every essential element necessary for submission to the jury, and further requiring the jury to find that Gardner was not guilty of negligence as submitted in plaintiff's Instructions 2 and 3, which submitted to the jury the alleged negligence of Gardner, before directing a verdict for Gardner. See cases cited under Points (1) to (4). (12) The trial court erred in refusing defendant Gardner's Instruction 21, pertaining to the speed ordinance of 6 miles per hour as being unreasonable and void. The damages awarded by the 9 juror verdict of $ 8,000, are excessive. Harding v. K.C. Public Serv. Co., 188 S.W.2d 67; Kramer v. Lospe, 94 S.W.2d 1090; Faulke v. Lehman, 17 S.W.2d 994.

Samuel W. Sawyer, John H. Lathrop and James F. Walsh for appellant Kansas City Terminal Railway Company.

(1) Terminal's failure to have a flagman on duty, to protect the crossing, was not actionable negligence. Hamilton v City Light & Traction Co., 3 S.W.2d 736; Montgomery v. Mo. Pac. R. Co., 79 S.W. 930; Curlin v. St. L.M.B.T. Ry. Co., 232 S.W. 215; Swigart v. Lusk, 192 S.W. 138; Waitkus v. C. & N.W. Ry. Co., 236 N.W. 531. (2) The absence of the flagman was not the proximate cause of the collision. Jones v. K.C. Pub. Serv. Co., 147 P.2d 723; Rowell v. City of Wichita, 176 P.2d 590; Davis v. Schroeder, 291 F. 47. (3) The most that can be said is that the absence of the flagman was a remote cause and therefore not actionable. Railway Co. v. Columbia, 69 P. 338; Stephenson v. Corder, 80 P. 938; Rowell v. City of Wichita, 176 P.2d 590; Davis v. Schroeder, 291 F. 47; Lambel v. City of Florence, 222 P. 64. (4) The flagman, if on duty, could not be convicted of negligence for failing to warn traffic, since he could not under the plaintiff's evidence see or hear the approaching engine. (5) The court erred in giving plaintiff's Instruction 2 because the instruction ignores proximate cause. Griffith v. A., T. & S.F. Ry. Co., 295 P. 687; Whitcomb v. A., T. & S.F. Ry. Co., 280 P. 900; Cooper v. Railway Co., 232 P. 1024; Richards v. C., R.I. & P. Ry. Co., 139 P.2d 427. (6) The court erred in giving plaintiff's Instruction 3 because it injects primary negligence in a last chance instruction. Mayfield v. K.C.S. Ry. Co., 85 S.W.2d 116; White v. K.C.P.S. Co., 149 S.W.2d 375; Hagerman v. Rogers, 101 S.W.2d 526; Murphy v. A., T. & S.F. Ry. Co., 197 S.W.2d 632; Buchhein v. U.P. Ry. Co., 75 P.2d 280; Jamison v. A., T. & S.F. Ry. Co., 252 P. 472; Hinds v. C., B. & Q.R. Co., 85 S.W.2d 165; Vowels v. Mo. P.R. Co., 8 S.W.2d 7; White v. Hasburgh, 124 S.W.2d 560. (7) The court erred in giving plaintiff's Instruction 4 because the instruction is not supported by the evidence. Clarke v. Jackson, 116 S.W.2d 122; Gately v. St. L. & S.F. Ry. Co., 56 S.W.2d 54; Luft v. Strobel, 19 S.W.2d 721; Freeman v. Berberich, 60 S.W.2d 393; Christner v. C., R.I. & P. Ry. Co., 64 S.W.2d 752. (8) The court erred in giving plaintiff's Instruction 5 because the instruction permits a recovery for Terminal's primary negligence and Alton's last chance and primary negligence. (9) The court erred in giving plaintiff's Instruction 6 because it is conflicting, confusing and inconsistent. Nagy v. St. Louis Car Co., 37 S.W.2d 513; State ex rel. Tunget v. Shain, 101 S.W.2d 1; Seithel v. St. Louis Dairy Co., 300 S.W. 280. (10) The court erred in giving plaintiff's Instruction 7 because the instruction conflicts with other instructions and sets up two standards of negligence. DeValpine v. New York L. Co., 105 S.W.2d 977; Dove v. A., T. & S.F. Ry. Co., 163 S.W.2d 548. (11) Instructions 2, 3, 4 and 5 conflict and are confusing and misleading. ...