Hogan v. Public Service Co.

• Decision Date: 25 May 1929
• Docket Number: No. 28704.,28704.
• Citation: 19 S.W.2d 707
• Parties: JOHN A. HOGAN, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY.
• Court: Missouri Supreme Court

19 S.W.2d 707

JOHN A. HOGAN, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY.

No. 28704.

Supreme Court of Missouri, en Banc.

May 25, 1929.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

REVERSED AND REMANDED.

Kelly, Buchholz, Kimbrell & O'Donnell for appellant.

(1) The court erred in that by the refusal of plaintiff's Instruction P-4 and by the giving of defendant's instructions D-2, D-3 and D-7, the court declared as a matter of law that the ordinance in evidence had no application to the issues made by the pleading and the evidence, and this notwithstanding on the former appeals it was held that the motorman had violated the provisions of the ordinance in question requiring him to give the plaintiff the right-of-way. Hogan v. Fleming, 218 Mo. App. 172; Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404; Farley v. Mayor, 152 N.Y. 222; Toledo Ry. & Light Co. v. Ward, 25 Ohio Cir. Ct. 399; Kansas City v. McDonald, 60 Kan. 481; Green v. U. Rys., 165 Mo. App. 14. (2) The court erred in giving defendant's instructions D-2 and D-7, in this, that said instructions took from the jury all questions of common-law negligence and all questions of negligence in the violation of the requirements of the city ordinance and all other questions except the violation of the custom described in these instructions, and the instructions further placed a burden on the plaintiff of proving a custom different from the custom pleaded and relied on, and Instruction D-2 further was erroneous in placing the burden on plaintiff to prove that the driver, Pyeatt, was not guilty of contributory negligence, and said instructions are in conflict with plaintiff's Instruction 1. Hogan v. Fleming, 218 Mo. App. 172; Hogan v. Fleming, 297 S.W. 404; Chaar v. McLoon, 304 Mo. 249; Burleigh v. Ry. Co., 124 Mo. App. 724; Dixon v. Ry. Co., 104 Mo. 491. (3) The court erred in giving defendant's requested instruction marked 11, for the reason that the only issue raised by the pleadings was whether the collision occurred by reason of the defendant's negligence or plaintiff's contributory negligence, and there was no evidence in the case tending to show that the collision and injury was the happening of an event proceeding from an unknown cause, but all the evidence tended to show that the collision was the result of a known cause and was not an accident. Chaar v. McLoon, 304 Mo. 245; Simon v. Ry. Co., 178 S.W. 449; Zeiss v. Brew. Assn., 205 Mo. 651; Turnbow v. Dunham, 272 Mo. 53; Wise v. Transit Co., 95 S.W. 898; Boland v. Ry. Co., 284 S.W. 141; Head v. Lumber Co., 281 S.W. 441; Maloney v. U. Rys. Co., 237 S.W. 509; Beard v. Ry. Co., 272 Mo. 142; Nehring v. Stationery Co., 191 S.W. 1054; Hanke v. St. Louis, 272 S.W. 933.

Charles L. Carr and Watson, Gage & Ess for respondent.

(1) The court erred in refusing to give peremptory instructions requested by respondent at the close of the plaintiff's case, and renewed at the close of all the evidence in the case, for the following reasons: (a) Because all of the evidence disclosed that the appellant and the driver of the patrol wagon were not relying upon the alleged custom of respondent to stop immediately upon the sound of the police siren. Percell v. Street Ry. Co., 126 Mo. App. 43; Tillery v. Harvey, 214 S.W. 347; Schumacher v. Breweries Co., 247 Mo. 160; Hogan v. Fleming, 317 Mo. 524, 297 S.W. 408. (b) Because there was no substantial evidence that the street car could have been stopped, by the exercise of ordinary care on the part of the motorman, before the front end thereof reached the south edge of the west loading dock. Alexander v. Frisco Ry. Co., 289 Mo. 621; Kibble v. Ry. Co., 285 Mo. 618; Sexton v. Railroad Co., 245 Mo. 275; Phippin v. Railway Co., 196 Mo. 321; Rollison v. Railroad Co., 252 Mo. 543; State ex rel. Railroad v. Bland, 313 Mo. 254; Sullivan v. Railroad Co., 308 Mo. 75. (c) Because there is no evidence upon which to base a finding that respondent's motorman negligently failed to yield the right of way to the police patrol. Hogan v. Fleming, 317 Mo. 524, 297 S.W. 412; Sadler v. Peoples, 105 Fed. 712. (d) Because, all of the evidence disclosed that the alleged negligent failure of respondent to stop the street car before entering the space opposite the west loading dock was not the proximate cause of the collision. Hogan v. Fleming, 297 S.W. 409; Borac v. Mosler Safe Co., 288 Mo. 90; De Moss v. Rys. Co., 246 S.W. 566; Wood v. Wells, 270 S.W. 332; 1 Cooley on Torts (3 Ed.) 103, 104, secs. 76, 77; Morris v. Light & Power Co., 258 S.W. 431. (2) The court did not err in refusing appellant's requested Instruction P-4. Degonia v. Railroad Co., 224 Mo. 589; MeKenzie v. Randolph, 257 S.W. 126; Hogan v. Fleming, 297 S.W. 412; Partello v. Ry. Co., 240 Mo. 122; Austin-Weston Machinery Co. v. State Bank, 282 S.W. 105; Loud v. Trust Co., 313 Mo. 614; Booth v. Scott, 240 S.W. 217; Davidson v. Railroad Co., 301 Mo. 79; Barrett v. Stoddard County, 272 Mo. 129; Hinzeman v. Ry. Co., 199 Mo. 56. (3) The court did not err in giving respondent's instructions numbered D-2 and D-7. Simpson v. Wells, 292 Mo. 329. (4) The court did not err in giving respondent's Instruction D-2 on accident. Hoffman v. White Line Co., 296 S.W. 772; Yawitz v. Novak, 286 S.W. 66; Barnett & Record Co. v. Schlapka, 208 Ill. 426; Lehnerts v. Elevator Co., 256 S.W. 822; Dameron v. Commonwealth Steel Co., 186 Ill. App. 556; Doody v. Woolen Mills Co., 216 S.W. 535; Parry Mfg. Co. v. Eaton, 41 Ind. App. 81; Ry. Co. v. Caple's Admxr., 110 Va. 514, 66 S.E. 855; Driscoll v. Allis Chalmers Co. (Wis.), 129 N.W. 401.

ELLISON C.

The plaintiff, a Kansas City police sergeant, sues for $50,000 damages for personal injuries sustained February 16, 1921, in a collision between a police patrol motor wagon on which he was riding and a street car operated by the receivers of the Kansas City Railways Company. The trial below resulted in a verdict for defendant and the plaintiff appeals, complaining of the giving of eight certain instructions for the defendant and of the refusal of one instruction requested by him.

The case has been tried in the circuit court three times, and thrice appealed. On the first trial a demurrer to the evidence was sustained and the Kansas City Court of Appeals reversed and remanded the cause, as reported in 218 Mo. App. 172, 265 S.W. 875. (The amount sued for was then only $7500.) At the second trial the plaintiff had a verdict for $15,000 and the (then) defendant receivers appealed. This division reversed and remanded the cause for failure to give an instruction requested by the defendants, as more fully appears from the report of the case in 317 Mo. 524, 297 S.W. 404. After this second appeal and before the third trial nisi the Kansas City Public Service Company became the owner of the street car system and assumed liability for the casualty. It was, therefore, substituted as defendant and is respondent here.

We are now called upon to decide whether the case shall be sent back for a fourth trial, again because of error in the instructions. Regrettable as it is that the litigation should be thus protracted, we are driven to the conclusion that this must be done. In giving our reasons it will be necessary to go over much ground covered by the former opinions, but the statement of facts will be condensed as much as possible.

The collision occurred during the busy noon hour of a clear day on Grand Avenue between Tenth and Eleventh Streets, one of the most congested sections of Kansas City. Grand Avenue there runs north and south, and is sixty-four feet wide between sidewalks. Along the center line of this vehicular traffic space were two parallel street car tracks, the east one for northbound cars and the west one for southbound cars. On the west side of the west car track and about one and one-half feet therefrom was a wooden platform about four feet wide and nine inches high, which served as a loading and unloading dock and safety zone for street car patrons. This platform was long enough for two street cars, which would be about 100 feet, and appears to have extended from about the center of the block south toward Eleventh Street. The block is 384 feet long, so the south end of the dock was ninety-two feet or more north of Eleventh Street.

There was a similar platform on the east side of the east car tracks, but located further north. Apparently the north end of the west platform was about even with the south end of the east platform, though the evidence is not clear as to the north and south position of these platforms in the block. Some of the testimony was that both platforms were nearer Tenth Street than Eleventh Street. From the east edge of the west platform to the west side of a street car on the east track the distance was ten feet, or very close to that. The distance between the two platforms, if they were opposite each other any part of their distance, was seventeen feet and eight inches or thereabouts. The distance from the west edge of the west platform to the east curb of the sidewalk on the west side of Grand Avenue — across the space used by ordinary southbound vehicles — was about twenty feet and six inches.

The patrol wagon was going south on Grand Avenue in response to a call to police headquarters, the nature of which had not been disclosed to the appellant. It was traveling a little to the right of the middle of the street, about astride the west rail of the west street car track. The appellant was on the driver's seat to the right of the chauffeur, a man named Pyeatt, but testified he had no control over the chauffeur's driving. Both were in police uniform. It is not disputed that the police siren was being sounded intermittently, but there is sharp conflict in the evidence regarding the speed of the wagon as it approached the point of collision, which was a few feet south of the north end of the west loading platform. The appellant testified it was going twelve to fifteen...