Hausherr v. Kansas City Public Service Co.

• Decision Date: 03 May 1954
• Docket Number: No. 21934,21934
• Citation: Hausherr v. Kansas City Public Service Co., 268 S.W.2d 433 (Mo. App. 1954)
• Parties: HAUSHERR v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 433

268 S.W.2d 433

HAUSHERR v.KANSAS CITY PUBLIC SERVICE CO.

No. 21934.

Kansas City Court of Appeals, Missouri.

May 3, 1954.

Roscoe C. Van Valkenburgh, Bernard L. Balkin, Kansas City(Brenner, Van Valkenburgh & Wimmell, Kansas City, of counsel), for appellant.

Charles L. Carr and Frank J. Rogers, Kansas City, for respondent.

CAVE, Presiding Judge.

This is an action by a husband for the loss of companionship, society and services of his wife, and for damages to his automobile, by reason of the alleged negligence of the defendant in the operation of one of its streetcars, causing it to collide with plaintiff's automobile which was being driven by his wife.A jury trial resulted in a verdict and judgment for plaintiff for $1712.50.Defendant's motion for new trial was sustained because of asserted error in the giving of plaintiff's InstructionNo. 1, and plaintiff appealed.

The petition alleged that on November 12, 1948, plaintiff's wife was driving his automobile east on 59th Street between Brookside Boulevard and Main Street in Kansas City, and that when said automobile was crossing defendant's north bound streetcar tracks it was struck by north bound streetcars, causing injury to his wife and damage to his automobile.Several grounds of negligence were alleged, but the cause was submitted on the ground that defendant carelessly and negligently operated its streetcar at an excessive, reckless and dangerous rate of speed under the circumstances then and there existing.Defendant's answer was, in effect, a general denial coupled with a plea of contributory negligence on the part of plaintiff's wife.

The only evidence presented was that of plaintiff's witnesses.Defendant offered none.

The evidence discloses that Brookside Boulevard and Main Street are north and south streets in Kansas City, and at the point of collision and between those two streets, but not on either, the defendant has double car tracks running in a generally north and south direction; that 59th Street is an east and west street and intersects with Brookside Boulevard and Main Streets and defendant's car tracks; that there was a stationary stop sign located 6 feet west of the west rail of defendant's south bound tracks and on the south side of 59th Street, and a 'slow' sign for streetcars hanging over the north bound car tracks a short distance south of 59th Street.Mrs. Hausherr was thoroughly familiar with this crossing, as she has driven over it frequently during the past 10 years.About 4:00 p.m. on the day of the collision, she was driving her husband's car east on 59th Street; that she stopped at the stop sign just west of the tracks and shifted into low gear and looked north and south for approaching streetcars; that she saw a north bound streetcar 'three or four houses south of Morningside Drive'; that Morningside Drive is 200 feet south of the point of collision at 59th Street and that visibility of the car tracks extends another 150 feet further south; that after observing the streecar approaching from a point three or four houses south of Morningside Drive, she started forward across the tracks in low gear and travelling at a slow speed.She did not estimate the speed of the streetcar or of her automobile and did not observe the streetcar again until immediately before the collision; that she was watching traffic at the intersection of 59th and Main Streets, which is only 37 feet east of the east car track; that the streetcar struck her automobile at the right front fender and front door and pushed it sideways down the car tracks for a distance of about 80 feet; that the streetcar came to a stop with the front end 113 feet north of the point of collision.The distance from the stop sign to the west rail of the north bound tracks was 23 feet and the distance between the rails of the north bound tracks is 5 feet.Other pertinent testimony will be referred to in disposing of the questions presented.There is no contention in the briefs concerning the amount of the verdict or that Mrs. Hausherr received injuries and that the automobile was damaged.We need not detail such evidence.

The first question to be decided is whether or not plaintiff's InstructionNo. 1 hypothesized sufficient facts to submit the issue of negligent speed of the streetcar.The instruction required the jury to find that plaintiff was the husband of Mary Hausherr; that on November 12, 1948, she was driving an automobile owned by plaintiff in an easterly direction on 59th Street; that she stopped said automobile at or near a traffic stop sign which was located on the south side of 59th Street approximately 6 feet west of the west rail of defendant's car tracks at the intersection; that she looked north and south along said streetcar tracks ans observed defendant's streetcar approaching northward at a point south of the intersection of Morningside Drive; that said intersection was 200 feet south of the intersection of 59th Street; that thereupon, she proceeded eastward and drove onto the north bound car tracks, while in the exercise of the highest degree of care; that defendant's motorman operated the streetcar into the intersection of said tracks with 59th Street 'at a high and excessive rate of speed under the circumstances then existing; and if you further find and believe that operating said street car at such high and excessive speed, if so, was negligence, * * *' and as a direct and proximate result thereof the streetcar collided with plaintiff's automobile and injured his wife, then the verdict should be for the plaintiff.

The first alleged vice of this instruction is that it does not submit sufficient facts to guide the jury in determining the issue of negligent speed.In their briefs, both parties refer to substantially the same cases which have discussed this perplexing question.Such cases are: Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541;Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972;Cantwell v. Zook, Mo.Sup., 250 S.W.2d 980;Wirth v. St. Louis County Transit Co., Mo.App., 253 S.W.2d 547;Young v. Kansas City Public Service Co., Mo.App., 255 S.W.2d 113;Calhoun v. McMahan, Mo.App., 257 S.W.2d 205.We shall add the most recent case of Hooper v. Conrad, 260 S.W.2d 496, an opinion by the Supreme Court en Banc.The opinion in the Hooper case reviews most, if not all, recent decisions discussing the question now under consideration, and announces the general rule applicable to verdict-directing instructions in negligence cases as follows, 260 S.W.2d at page 500: 'Where the evidence presents two or more divergent sets of essential facts, under one or more of which plaintiff would be entitled to recover and under one or more of which he would not, then a verdict-directing instruction or instructions given in his behalf should hypothesize, either by recital or by reference to other instructions, the facts essential in law to support the verdict.In like manner, verdict-directing instructions in behalf of the defendant should recite on their face or by reference to other instructions any essential fact or facts shown or not shown which will defeat plaintiff's right of recovery.Where there is no divergence in or denial of the essential facts, then the ultimate issue of the negligence pleaded and its being the proximate cause of the injury or damage alleged may be submitted by reference to the facts and circumstances shown by the evidence without specific hypothesization in the instructions.And, we may add, that if either of the parties deems a hypothesized fact or situation not to have been clearly or sufficiently hypothesized in any instruction, he should offer a clarifying or amplifying instruction.'(Italics supplied.)

In the present case, there was no divergence or conflict in the evidence as to the essential facts and circumstances which concurred to bring about the collision.A reading of the instruction discloses that it requires the jury to find a rather detailed set of facts and circumstances which, if true, would make defendant liable for the collision, and there was no evidence of a contrary set of facts which, if true, would relieve defendant of liability.Consequently, it was unnecessary for the instruction to more specifically hypothesize the facts in submitting the issue of negligent speed.

However, defendant contends that its answer denied all allegations of negligence and that this placed the burden of proof on plaintiff to prove his case and every element thereof, and that it was not necessary for the defendant to introduce evidence disputing or contradicting plaintiff's evidence.Of course, the burden was on the plaintiff to prove and submit every essential element of his case.That always has been, and still is, the law.But what we are now discussing is, how fully must an instruction detail the facts in submitting essential elements of negligence when there is no substantial conflict in the evidence?Defendant is confusing the question of the necessity of submitting all essential elements of a case to the jury with the question of the degree of particularity with which the plaintiff must hypothesize the basic elements of the submissible case.The Yates and Cantwell cases, supra, did not introduce a new rule of law requiring evidentiary detail to be incorporated into instructions.They merely...