Hauck v. K.C. Pub. Serv. Co.

• Decision Date: 03 February 1947
• Docket Number: No. 20810.,No. 20811.,20810.,20811.
• Citation: 200 S.W.2d 608
• Parties: HERMAN J. HAUCK v. KANSAS CITY PUBLIC SERVICE COMPANY, A CORPORATION, AND KANSAS CITY, MISSOURI, A MUNICIPAL CORPORATION,
• Court: Missouri Court of Appeals

200 S.W.2d 608

HERMAN J. HAUCK v. KANSAS CITY PUBLIC SERVICE COMPANY, A CORPORATION, AND KANSAS CITY, MISSOURI, A MUNICIPAL CORPORATION,

No. 20810.

No. 20811.

Kansas City Court of Appeals, Missouri.

February 3, 1947.

Appeal from the Circuit Court of Jackson County. — HON. EMORY H. WRIGHT, Judge.

JUDGMENT REVERSED.

David M. Proctor, Henry Arthur, and John J. Cosgrove, Attorneys for Kansas City.

(1) The court erred in refusing to give the separate motion of defendant Kansas City for a directed verdict offered at the close of all the evidence, for the reason that there was no evidence that said defendant was guilty of negligence toward plaintiff. Griffin v. Chillicothe, 279 S.W. 84, 41 A.L.R. 1273; Sparks v. Kansas City, 160 S.W. (2d) 819; Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W. (2d) 54, 61 A.L.R. 242; Basset v. City of St. Joseph, 53 Mo. 290; Boland v. Thompson, 142 S.W. (2d) 790; Fox v. City of Joplin, 297 S.W. 449; Chance v. City of St. Joseph, 195 Mo. App. 1, 190 S.W. 24; Bennett v. City of Mt. Vernon, 276 N.Y. Supp. 207. (2) The court erred in refusing to give said motion for a directed verdict for the reason that plaintiff's injuries and damages were the direct result of his own negligence. Jackson v. Southwestern Bell Telephone Company, 219 S.W. 655, 281 Mo. 358; State ex rel. v. Shain, 105 S.W. (2d) 915; Kaley v. Huntley, 333 Mo. 771, 63 S.W. (2d) 21; Grimes v. St. Louis and San Francisco Railroad Company, 341 Mo. 1129, 106 S.W. (2d) 426; Rohmann v. City of Richmond Heights, 135 S.W. (2d) 378. (3) The court erred in giving plaintiff's instruction No. 1. Peves Dork v. Union Electric Light Co., 333 Mo. 1155, 64 S.W. (2d) 939; Owens v. McCleary, 313 Mo. 213, 281 S.W. 618; Luft v. Strobel, 322 Mo. 955, 19 S.W. (2d) 721; Hutchinson v. Railroad, 335 Mo. 82, 72 S.W. (2d) 87. (4) There was no evidence that appellant City knew that persons driving automobiles would be likely to drive southward from Ward Parkway on Belleview Avenue. Gunde Lach v. Compagnie Generale Transatlantic, 41 S.W. (2d) 1; (5) Said instruction erroneously ignored uncontradicted evidence favorable to this appellant. McCollum v. Winnwood Amusement Co., 322 Mo. 779, 59 S.W. (2d) 693; Bouligny v. Life Insurance Co., 133 S.W. (2d) 1094.

Charles L. Carr, R. Carter Tucker, John Murphy, Wililam H. Wilson, Robert L. Spurrier, for appellant Kansas City Public Service Company.

(1) The trial court erred in refusing the separate motion of appellant Kansas City Public Service Company for a directed verdict at the close of plaintiff's evidence for the reason that all of the evidence discloses that plaintiff failed to prove facts constituting a claim against this appellant. Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W. (2d) 54, 62; Sparks v. Kansas City, 236 Mo. App. 710, 160 S.W. (2d) 819; Boland v. Thompson, (Mo. App.), 142 S.W. (2d) 790, 792-793; Bennett v. City of Mt. Vernon, 276 N.Y. Supp. 205, 207-208. Kaley v. Huntley, 333 Mo. 771, 63 S.W. (2d) 21, 23-24; State ex rel. Kansas City Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W. (2d) 915, 919; Rohmann v. City of Richmond Heights, 135 S.W. (2d) 378, 382 (Mo. App.); Grimes v. St. Louis, San Francisco Ry. Co., 341 Mo. 1129, 106 S.W. (2d) 462, 465. (2) The trial court erred in giving plaintiff's Instruction No. 1. Gundelach v. Compagnie Generale Transatlantique, (Mo.) 41 S. W. (2d) 1, 2; Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W. (2d) 54, 62; Sparks v. Kansas City, 236 Mo. App. 710, 160 S.W. (2d) 819; Boland v. Thompson, (Mo. App.) 142 S.W. (2d) 790, 792-793; Bennett v. City of Mt. Vernon, 276 N.Y. Supp. 205, 207-208. (a) Said instruction erroneously ignored uncontradicted evidence favorable to this appellant, and permitted findings by the jury which are contrary to uncontradicted evidence. McCollum v. Winnwood Amusement Co., 322 Mo. 779, 59 S.W. (2d) 693, 698; Bouligny v. Metropolitan Life Ins. Co. (Mo. App.) 133 S.W. (2d) 1094, 1097; Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W. (2d) 267, 275; Kennedy v. Bowling, 319 Mo. 401, 4 S.W. (2d) 438, 447; Comfort v. Travelers Ins. Co. (Mo. App.) 131 S.W. (2d) 734, 741; Perles v. Feldman, (Mo. App.) 28 S.W. (2d) 375, 377. (b) Said instruction erroneously ignored the physical facts in evidence and permitted findings by the jury which are contrary to said physical facts. Rohmann v. City of Richmond Heights, (Mo. App.) 135 S.W. (2d) 378, 382, 383. (c) Said instruction erroneously gave the jury a roving commission to speculate and impose liability on this appellant upon mere speculation and surmise and was confusing and misleading. Pevesdorf v. Union Electric Light & Power Co., 333 Mo. 1155, 64 S.W. (2d) 939, 946-947; Owens v. McCleary, 313 Mo. 213, 281 S.W. 682, 685. (d) Said instruction erroneously permitted a finding of negligence on the part of this appellant to permit the "conditions aforesaid" without warning or signs without requiring any findings by the jury as to what constituted said alleged "conditions aforesaid," without furnishing any guide to the jury and without having previously mentioned "conditions" in the plural. Neff v. City of Cameron, 213 Mo. 350, 365-366, 111 S.W. 1139; Luft v. Strobel, 322 Mo. 955, 19 S.W. (2d) 721, 731-732. (e) Said instruction erroneously permitted the jury to speculate and conjecture as to what character of warning, sign, contraption or device would indicate to an automobile driver that automobiles should not be driven south over the open track right-of-way of this appellant, and the parkway of appellant Kansas City, Missouri. Hutchison v. St. Louis-San Francisco Ry. Co., 335 Mo. 82, 72 S.W. (2d) 87, 96; Pevesdorf v. Union Electric Light & Power Co., 333 Mo. 1155, 64 S.W. (2d) 939, 946, 947.

Paul C. Sprinkle, William F. Knowles, and Sprinkle & Knowles, for respondent.

(1) The court did not err in overruling separate motions for directed verdict by each appellant at the close of plaintiff's evidence and at the close of all the evidence. Birkhimer v. City of Sedalia (Mo. App.) 200 S.W. 298; Boyd v. Kansas City, 237 S.W. 1001, 291 Mo. 622; Metz v. Kansas City, 81 S.W. (2d) 463, 229 Mo. App. 402; Van De Vere v. Kansas City et al. (Mo. App.) 196 S.W. 785; Plater v. Mullins Construction Co., 17 S.W. (2d) 658, 223 Mo. App. 650; Benton v. City of St. Louis, 118 S.W. 418, 217 Mo. 687; Robison v. Kansas City et al. (Mo.) 181 S.W. 1004; State ex rel. City of Springfield v. Cox, 36 S.W. (2d) 102, 327 Mo. 152; Hendrick v. Kansas City, 60 S.W. (2d) 704, 227 Mo. App. 998; Chance v. City of St. Joseph, 190 S.W. 24, 195 Mo. App. 1; Williams v. City of Mexico, 34 S.W. (2d) 992, 224 Mo. App. 1224; Clinkenberd v. City of St. Joseph, 10 S.W. (2d) 54, 321 Mo. 71; Sparks v. Kansas City, 160 S.W. (2d) 819, 236 Mo. App. 710. (2) The court did not err in refusing to sustain motions for directed verdict on the part of the appellants at the close of plaintiff's evidence and at the close of all the evidence, because the plaintiff was not guilty of contributory negligence as a matter of law. Boyd v. Kansas City, 237 S.W. 1001, 291 Mo. 622; Gallagher v. City of Tipton, 113 S.W. 674, 133 Mo. App. 557; Ahlfeldt v. City of Mexico, 108 S.W. 122, 129 Mo. App. 193; Hendrick v. Kansas City, 60 S.W. (2d) 704, 227 Mo. App. 998; Metz v. Kansas City, 81 S.W. (2d) 462, 229 Mo. App. 402; Chance v. City of St. Joseph, 190 S.W. 24, 195 Mo. App. 1. (3) Instruction No. 1 was not erroneous. Boyd v. Kansas City, 237 S.W. 1001, 291 Mo. 622.

BLAND, P.J.

This is an action for damages for personal injuries to plaintiff and to an automobile owned by him. There was a verdict and judgment in favor of plaintiff in the sum of $2500, and defendants have appealed. There were two separate appeals but they have been consolidated in this court so that one opinion will dispose of the issues in both.

The casualty that gives rise to this action occurred shortly after nine p.m., on February 12, 1944, when plaintiff drove his automobile off of an abutment to the south of and adjacent to a trestle owned by the defendant, Kansas City Public Service Company. The abutment is situated about 76 or 78 feet south of North Ward Parkway (an east and west street) and directly south of the end of Belleview Street, a north and south thoroughfare, entering North Ward Parkway but not extending south thereof. There are a double set of street car tracks laid in Belleview, which extend across North Ward Parkway and south thereof over the trestle.

Plaintiff testified that he was 67 years of age; that he resided in Valley Falls, Kansas; that on the day in question he was in Kansas City to visit his wife who was a patient in Bell Memorial Hospital; that on the evening in question he had eaten at a restaurant on Broadway near the Ambassador Hotel and was on his way back to the Hospital intending to turn west on 39th Street, which was south of the restaurant; that he did not notice that he was crossing 39th Street until he had passed beyond the center thereof; that instead of turning back he thought that it would be better to proceed on and turn to his right and get back on 39th Street; but he got lost and later made inquiry as to the way to the Hospital; that he drove into North Ward Parkway and along the same toward the west looking for the street car tracks to which he had been directed as being on his route to the Hospital; that he was a stranger in the city and had not been on North Ward Parkway prior to that time; that he traveled several blocks on North Ward Parkway before he came to any street car tracks; that he was travelling at a rate of speed of about 15 miles per hour when he came to a double set of street car tracks; which he afterwards found to be laid in the center of Belleview Street, across North Ward Parkway and thence to the south over the trestle in question, that he thought he was north of the Hospital; that he a turn in the curbing; that it appeared to him that the paving turned to the left, or south; that he did not recollect...