Hill v. Kansas City Railways Company

• Decision Date: 11 July 1921
• Parties: IRENE MARIE HILL, Pro Ami, v. KANSAS CITY RAILWAYS COMPANY, Appellant
• Court: Missouri Supreme Court

233 S.W. 205

289 Mo. 193

IRENE MARIE HILL, Pro Ami, v. KANSAS CITY RAILWAYS COMPANY, Appellant

Supreme Court of Missouri, First Division

July 11, 1921

Appeal from Jackson Circuit Court. -- Hon. Harris Robinson, Judge.

Affirmed.

Charles N. Sadler and E. E. Ball for appellant.

(1) The court erred in overruling the demurrer interposed at the close of plaintiff's evidence and renewed at the close of all the evidence. (a) The petition fails to state facts sufficient to constitute a cause of action against defendant 1st. This accident occurred in Kansas, therefore, the laws of Kansas govern. Newlin v. Railroad, 222 Mo. 391; Chandler v. Railroad, 127 Mo.App. 34; Rahn v Railroad, 129 Mo.App. 686. 2nd. Common law not presumed to exist in Kansas. Mathieson v. Railroad, 219 Mo 542; First Nat. Bank v. Ins. Co., 222 S.W. 837. (b) The evidence did not justify a submission of this case to the jury under the allegations of the petition. 1st. Plaintiff must recover, if at all, upon the particular cause of action pleaded as pleaded. Beave v. Transit Co., 212 Mo. 352; Detrich v. Railroad, 143 Mo.App. 179; Simms v. Dunham, 203 S.W. 652; Boles v. Dunham, 203 S.W. 408; Murdock v. Dunham, 206 S.W. 915; Kirn v. Harvey, 208 S.W. 479; State ex rel. v. Ellison, 270 Mo. 653; Shafer v. Dunham, 183 S.W. 670; Hall v. Coal Co., 260 Mo. 351; Arata v. Ry. Co., 167 Mo.App. 90; Israel v. United Rvs. Co., 172 Mo.App. 660; Bobbitt v. Rys. Co., 169 Mo.App. 428. 2nd. Where petition charges two or more concurrent negligent acts combined caused the injury all must be proven to entitle plaintiff to recover. R. S. 1909, sec. 3140; Terry v. Ry. Co., 89 Mo. 587; Turner v. Ry. Co., 78 Mo. 580; Van Note v. Ry. Co., 70 Mo. 642; Downing v. Ry. Co., 70 Mo.App. 661; Kirn v. Harvey, 208 S.W. 479; Wormsdorf v. Ry. Co., 75 Mich. 474; Western Ry. Co. v. McPherson, 146 Ala. 427; Flynn v. Staples, 34 App. D. C. 92, 27 L. R. A. (N. S.) 792. 3rd. Should not have been submitted on issue of failure to warn. Peterson v. Rys. Co., 192 S.W. 940; McManamee v. Railroad, 135 Mo. 449; McNeil v. Ry. Co., 182 S.W. 762; Pope v. Ry. Co., 242 Mo. 238; Green v. Ry. Co., 192 Mo. 131. 4th Should not have been submitted on humanitarian theory. Markowitz v. Railroad, 186 Mo. 351; Grout v. Ry. Co., 125 Mo.App. 552; Roenfelt v. Ry. Co., 180 Mo. 566; Boyd v. Ry. Co., 105 Mo. 382; Haffey v. Ry. Co., 135 S.W. 937; Mockowick v. Ry. Co., 196 Mo. 570; Barnard v. Ry. Co., 137 Mo.App. 684; Van Bach v. Ry. Co., 171 Mo 347; Gessner v. Ry. Co., 137 Mo.App. 47; Banks v. Ry. Co., 217 S.W. 488; Oglesby v. Ry. Co., 177 Mo. 272. (2) The court erred in giving instructions asked by plaintiff. Authorities under Point one. (3) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by plaintiff. (a) Broadens issues made by pleadings. Shafer v. Dunham, 183 S.W. 670; Hall v. Coal & Coke Co., 260 Mo. 351; Bergfeld v. Dunham, 202 S.W. 253; Davidson v. Transit Co., 211 Mo. 363; Roscoe v. Railroad, 202 Mo. 576. (b) Invades province of jury. Taylor v. Ry. Co., 185 Mo. 256; Glasgow v. Ry. Co., 191 Mo. 364; Smart v. Kansas City, 208 Mo. 199; 203; Castanie v. Ry. Co., 249 Mo. 195. (4) The court erred in refusing to admit competent, relevant and material evidence offered by defendant. Authorities under last point. (5) The court erred in making improper remarks during trial; in preventing defendant from properly conducting its defense, and in improperly examining witnesses. McElwain v. Dunham, 221 Mo.App. 773; Landers v. Railroad, 134 Mo.App. 80; Dreyfus v. Railroad, 124 Mo.App. 592; Jackmann v. Railroad, 187 S.W. 787; Levels v. Railroad, 196 Mo. 619; Rose v. Kansas City, 125 Mo.App. 235; Buck v. Trust Co., 185 S.W. 213; Hutchinson v. Gate Co., 152 S.W. 65; 40 Cyc. 2439, 2440; Knox v. Fuller, 23 Wash. 34; 38 Cyc. 1316; Berwind Co. v. Firment, 170 F. 154. (6) The court erred in refusing to sustain the motion for new trial on the ground that it is against the weight of the evidence. Lehnick v. Ry. Co., 118 Mo.App. 611; Morris v. Kansas City, 117 Mo.App. 303; Baughman v. Fulton, 139 Mo. 558; Bohle v. Merc. Co., 144 Mo.App. 441; Northrop v. Diggs, 115 Mo.App. 93; Ridge v. Johnson, 129 Mo.App. 546; Reid v. Insurance Co., 50 Mo. 429; Powell v. Ry. Co., 59 Mo.App. 340; Kreitzel v. Stevens, 155 Mo. 285; Lawson v. Mills, 139 Mo. 172; Gould v. St. John, 207 Mo. 619.

Atwood, Wickersham, Hill & Popham for respondent.

(1) The law of Missouri and not the law of Kansas governs. Plaintiff's petition stated a common-law cause of action. Defendant did not plead the laws of Kansas, hence the common law as applied by the Missouri courts governs. Lyons v. Railroad, 253 Mo. 151; Thompson v. Railroad, 243 Mo. 349; Biggie v. Railroad, 159 Mo.App. 351. (2) The acts of negligence pleaded in plaintiff's petition were stated disjunctively. Plaintiff could submit any or all acts of negligence justified by the evidence. It is not the law, as stated by appellant, that all or none of the alleged negligent acts must be submited to the jury. Meeker v. E. L. & P. Co., 216 S.W. 931; Hanson v. Traction Co., 226 S.W. 1. (3) There was overwhelming evidence that no warning was given of the approach of the car. Due care under the circumstances required the motorman to sound warning. Petition charged failure to warn as one of the grounds of negligence and plaintiff's Instruction No. 1 properly submitted this issue to the jury. Ellis v. Met. St. Ry., 234 Mo. 683; Cytron v. Transit Co., 205 Mo. 693; Muller v. Harvey, 204 S.W. 929; Argeropoulos v. K. C. Rys. Co., 212 S.W. 375. (4) The evidence shows conclusively that this child -- hardly five years of age -- was on the east-bound track in deadly peril when the street car was at or beyond the spur or cross over switch to the west, a distance at least of from fifty to seventy-five feet away. The testimony showed the car running at the speed stated by plaintiff's witnesses and defendant's conductor, could have been stopped within fifteen feet. The motorman on the west-bound car, defendant's witness, testified car could be stopped from fifteen to twenty-five feet. This made out a clear case for the jury. Ellis v. Met. St. Ry., 234 Mo. 656; Holmes v. Railroad, 207 Mo. 163; Livingston v. Railroad, 170 Mo. 471; Turnbow v. Dunham, 197 S.W. 107; Simon v. Railroad, 231 Mo. 78. (5) Plaintiff was injured in a thickly settled part of Kansas City, Kansas. A drinking fountain was located opposite the point of accident which was much frequented by children. It was the duty of defendant's motorman not only to keep a sharp lookout ahead for children on the street, but to take note of the practice of children to be about the drinking fountain and of their crossing the street at this point and to govern his conduct accordingly. Cases under Points 3 and 4. (6) The point made by appellant that the court was guilty of improper conduct was utterly without foundation. The records show the court's attitude to have been impartial and fair, and that the attitude of counsel for defendant towards the trial judge throughout the trial was insolent and disrespectful. The small award of damages of which appellant makes here no complaint, shows that the final result was in no wise affected by any extraneous circumstances. Buck v. Buck, 267 Mo. 662. (7) Point No. 6 of appellant is wholly without merit because the greater weight of the evidence was in favor of plaintiff and against the defendant. But if it had been otherwise, this court will not weight and settle conflicts in evidence. Orblitt v. Bergfold, 191 S.W. 999.

OPINION

GRAVES, J.

Irene Marie Hill, a negro girl some five years old at the time of the incident which occasioned her injury, sues through her next friend, for damages alleged to have been occasioned by the negligence of defendant's predecessor in title to the street railway property now operated by defendant. Defendant was the purchaser at a receivership and foreclosure sale of the property. The injury occurred whilst the railway property was in the hands of receivers, but no point is made as to the liability of this defendant, if its predecessor in title, or the receivers, were liable. So the case proceeded as if the instant defendant had been the owner and operator of the street railway property at the time of the accident. The accident occurred June 16, 1915, at 7:30 p. m. in the State of Kansas, near the intersection of Quindaro Boulevard and 7th Street, in Kansas City, Kansas. There was a double-track street railway in Quindaro Boulevard. The negligence charged is thus stated in the petition:

"Plaintiff states that the said receivers and their agents and servants in charge of said car were careless and negligent in that they failed to give plaintiff any warning signals of the approach of said car to her and to said intersection, and in that they were negligently operating said car without keeping proper or reasonably sufficient lookout ahead, and without having or keeping same under proper and reasonable control. Plaintiff further says that those in charge of said car were further negligent in that they saw or by the exercise of ordinary care could have seen plaintiff upon said track or so near the same and in such position as that she was in a position of danger and peril from the approach of said car in time, by the exercise of ordinary care, under the conditions then existing, and with the use of the appliances at hand, to have stopped said car, slackened the speed thereof, or have warned plaintiff of the approach thereof, and thereby have avoided injuring her, all of which they negligently and carelessly failed to do.

"Plaintiff further states that as a direct and proximate result of the negligent and careless acts and omissions of those in charge of said car, as above described, all of said acts and...