Jarboe v. Kansas City Public Service Co.

• Decision Date: 11 April 1949
• Docket Number: 40870
• Parties: Rudolph E. Jarboe, Respondent, v. Kansas City Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

220 S.W.2d 27

359 Mo. 8

Rudolph E. Jarboe, Respondent, v. Kansas City Public Service Company, a Corporation, Appellant

No. 40870

Supreme Court of Missouri

April 11, 1949

Motion for Rehearing or to Transfer to Banc Overruled May 9, 1949.

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Reversed and remanded (with directions).

SYLLABUS

Plaintiff bus passenger was injured when defendant's bus suddenly stopped. After a submission on the res ipsa loquitur theory a verdict in favor of defendant was set aside and a new trial granted on the ground that it was error to give defendant's sole cause instruction based on an automobile suddenly entering a street intersection without stopping at a stop sign. This instruction was proper, and it was not error to give another defendant's instruction based on the bus driver being faced with a sudden emergency. Plaintiff abandoned the humanitarian doctrine by failing to offer an instruction on that theory. The verdict should be reinstated.

Charles L. Carr, R. Carter Tucker, John Murphy, William H. Wilson, J. Gordon Siddens and Tucker, Murphy, Wilson & Siddens for appellant.

(1) The evidence in this case abundantly supported, justified and sustained the defendant in the giving of said Instruction 4, a sudden emergency instruction. The instruction was properly given. The evidence showed defendant's operator was placed in a position of sudden emergency; it was entitled to have its theory submitted to the jury. It negatived defendant's negligence, and hypothesized facts which, if true and so found, established defendant's operator was placed in sudden emergency, acted with due care to avoid it, and emancipated defendant from negligence. Mayne v. May Stern Furniture Co., 21 S.W.2d 211; Dillard v. East St. Louis Ry. Co., 150 S.W.2d 552; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Garvey v. Ladd, 266 S.W. 727; 5 Am. Jur., sec. 171, p. 600; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Underwood v. St. Louis, I.M. & S. Ry. Co., 190 Mo.App. 407, 177 S.W. 724; Scott v. Metropolitan St. Ry. Co., 138 Mo.App. 196, 120 S.W. 131; Hutchison v. St. Louis-S.F.R. Co., 335 Mo. 82, 72 S.W.2d 87. (2) The bus operator traveling on an arterial, or through street, had the right to assume he had the right of way and that an automobile approaching the intersection from a side street and with a stop sign against it, would obey the stop sign and stop and yield the right of way. Hangge v. Umbright, 119 S.W.2d 382; Hanks v. Anderson-Parks, Inc., 143 S.W.2d 314: West Coast Transport Co. v. Landin, 60 P.2d 704. (3) Defendant's Instruction 4 was a proper instruction and was properly given. It was supported by the evidence. It did not authorize a verdict and should be considered with the instructions as a whole. Windsor v. McKee, 22 S.W.2d 65; Garvey v. Ladd, 266 S.W. 727; Mayne v. May Stern Furniture Co., 21 S.W.2d 211; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143. (4) Instructions must be read as a whole. Schweig v. Wells, 26 S.W.2d 851; Conroy v. St. Joseph Ry., L.H. & P. Co., 345 Mo. 592, 134 S.W.2d 93; Rudy v. Autenrieth, 287 S.W. 850; Malone v. St. Louis-S.F. Ry. Co., 285 S.W. 123; King v. Rieth, 341 Mo. 467, 108 S.W.2d 1; 1 Raymond on Instructions, sec. 209.

Walter A. Raymond and James H. Snyder for respondent.

(1) The trial court did not abuse his judicial discretion in granting plaintiff a new trial because of error in giving Instruction 4 at the request of the defendant. Teague v. Plaza Express Co., 356 Mo. 1186, 205 S.W.2d 563; State ex rel. United Mut. Ins. Assn. v. Shain, 349 Mo. 460, 162 S.W.2d 255; Trower v. Missouri-K.-T.R. Co., 347 Mo. 900, 49 S.W.2d 792; Carlisle v. Tilghmon, 159 S.W.2d 663; Taylor v. Farmers Bank of Chariton County, 349 Mo. 407, 161 S.W.2d 243. (2) The trial court properly sustained plaintiff's motion for a new trial because of error in giving defendant's Instruction 4. The evidence was insufficient to justify the giving of an instruction on sudden emergency. Shaw v. Fulkerson, 339 Mo. 310, 96 S.W.2d 495; Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Rose v. St. Louis Pub. Serv. Co., 205 S.W.2d 559; Moore v. East St. Louis & Suburban Ry. Co., 54 S.W.2d 767; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541; Morris v. E.I. Dupont De Nemours & Co., 351 Mo. 479, 173 S.W.2d 38; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Sullivan v. Union Electric L. & P. Co., 331 Mo. 1065, 56 S.W.2d 97; Bramblett v. Harlow, 75 S.W.2d 626; Young v. City of Farmington, 196 S.W.2d 124; Cunningham v. Kansas City Pub. Serv. Co., 229 Mo.App. 174, 77 S.W.2d 161. (3) The evidence in this case tended to show a violation of the humanitarian rule. Under his res ipsa loquitur pleading and submission plaintiff was entitled to the benefit of such evidence and theory. Instruction 4 given at the request of appellant was in conflict with and erroneously deprived plaintiff of evidence of humanitarian negligence. Miller v. Kansas City Rys. Co., 233 S.W. 1066; Malone v. Greyhound Lines, 22 S.W.2d 199; Byars v. St. Louis Pub. Serv. Co., 334 Mo. 278, 66 S.W.2d 894; Semler v. Kansas City Pub. Serv. Co., 355 Mo. 388, 196 S.W.2d 197; Lober v. Kansas City, 339 Mo. 1087, 74 S.W.2d 815; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163; Belding v. St. Louis Pub. Serv. Co., 205 S.W.2d 866; Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W.2d 254. (4) The order of the trial court awarding plaintiff a new trial should be affirmed because of error in Instruction 3 given at the request of appellant. The evidence did not justify a sole cause submission nor did Instruction 3 hypothesize the facts necessary to such a submission. Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Lankford v. Thompson, 354 Mo. 220, 189 S.W.2d 217; Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Melber v. Yourtee, 203 S.W.2d 727; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Teague v. Plaza Express Co., 356 Mo. 1186, 205 S.W.2d 563.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

Upon the trial of the respondent's action for damages for personal injuries the jury returned a verdict for the defendant. The trial court granted the respondent a new trial upon the specified ground that the court had prejudicially erred in giving the jury instruction number four. Upon this appeal the respondent also contends that the court erred in giving instruction number three.

The respondent, Jarboe, was a passenger on one of the appellant's trolley busses when, as he alleged and proved, the bus suddenly, with unusual force, and jerkingly slackened its speed or stopped and caused him to fall from his standing position in the aisle. It was the appellant's contention that the bus did not suddenly and violently slacken its speed or stop. The appellant also claimed that the respondent's fall was not due to any negligence on its part. The bus company's theory, which its proof supported, was that as the bus traveled north on Prospect, a through street, at the usual speed of twenty to twenty-five miles an hour the operator saw an automobile on Twenty-Ninth Street traveling west towards the intersection at a speed of fifteen to twenty miles an hour. The operator applied his brakes and slackened the speed of the bus to ten or twelve miles an hour. The automobile passed a stop sign on Twenty-Ninth Street, sixty-seven feet east of the intersection, and the bus operator expected the automobile to stop at the street line but, as the bus entered the street intersection, the automobile also suddenly entered the intersection eight or ten feet ahead of the bus and turned north on Prospect. The operator immediately applied the brakes again, further slackening the speed of the bus, and avoided hitting the automobile. The appellant, upon the hypothesis of these facts and a finding that they constituted the sole cause of the plaintiff's fall and that the bus operator was not negligent in any respect, exonerated itself of liability.

The respondent says that the sole cause instruction (number three) is erroneous because no facts are hypothesized negativing the bus operator's concurring or contributory negligence and that only conclusions of law are submitted without facts. In the first connection, however, at the respondent's behest the court gave an instruction which defined "sole cause" as meaning "acts or conduct which were the sole cause of the accident without any contributing negligence whatever on the part of defendant's operator as submitted in instruction letter a," and told the jury that if the operator's negligence contributed in any degree to cause the occurrence they could not find for the appellant on sole cause. Nevertheless, the respondent says that these facts do not demonstrate a sole cause situation and that it is difficult to conceive how the automobile's entering Prospect could be the sole cause of the occurrence without any negligence of the bus operator's concurring or contributing. It is his contention that the automobile did not appear suddenly but was in clear view for a period of time and distance for the bus operator to have made an ordinary and usual stop. But that is the respondent's interpretation of the situation and from his point of view a fair and reasonable one submitted by his instruction. But his is not the only viewpoint. This is not an instance of the defendant's evidence showing that his negligence contributed in some degree to cause the occurrence. Hillis v. Home Owners' Loan Corp., 348 Mo. 601 154 S.W. (2) 761. From the appellant's evidence and point of view the jury could reasonably find that the automobile suddenly drove on...