Johnson v. Kansas City Public Service Co.

• Decision Date: 13 March 1950
• Docket Number: No. 1,No. 41416,41416,1
• Citation: 360 Mo. 429,228 S.W.2d 796
• Parties: JOHNSON v. KANSAS CITY PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 796

228 S.W.2d 796

360 Mo. 429

JOHNSON v. KANSAS CITY PUBLIC SERVICE CO.

No. 41416.

Supreme Court of Missouri, Division No. 1.

March 13, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 10, 1950.

Charles L. Carr William A. Kitchen, Henry Depping, Hale Houts, Hogsett, Trippe, Depping, Houts & James, Kansas City, for appellant.

Lee H. Hamlin, John W. Hudson, Frank M. Robison, Kansas City, for respondent.

ASCHEMEYER, Commissioner.

This is an action to recover damages for personal injuries sustained by respondent (plaintiff) while alighting from one of appellant's (defendant's) streetcars. The petition prayed damages in the amount of $10,000. There was a verdict for appellant. The trial court sustained respondent's motion for a new trial, and appellant has appealed from this order.

The trial court sustained the motion for a new trial 'on account of the admission of incompetent evidence.' Appellant asserts that the order of the trial court is so general that it fails to comply with the statutory requirement that the ground or grounds upon which a new trial is granted shall be specified of record. Laws, Mo.1943, p. 388 Sec. 115, Mo.R.S.A. Sec. 847.115. We agree with this contention. The ground stated is too general to furnish any information to the parties or to this Court concerning the real basis of the trial court's action. It does not fulfill the purpose of the statute. Ordelheide v. Berger Land Co., 208 Mo. 239, 106 S.W. 620; Bartley v. Metropolitan St. R. Co., 148 Mo. 124, 138, 49 S.W. 840; Benton v. St. Louis-San Francisco R. Co., Mo.Sup., 182 S.W.2d 61; Mendenhall v. Neyer, 347 Mo. 881, 149 S.w,.2d 366. Accordingly, under Rule 1.10 of this Court, respondent has the burden of supporting the correctness of the action of the trial court. This burden is met if the respondent demonstrates that the motion for a new trial should have been sustained on any of the grounds specified in the motion. King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458, 464; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678, 683; Millar v. Madison Car Co., 130 Mo. 517, 31 S.W. 574, 575.

Respondent was a passenger on one of appellant's streetcars. While alighting from the front end, she fell and was injured. Her evidence was that a metal strip on the outer edge of the front vestibule was loose and extended about one-half inch above the floor. The strip was rusty and worn, and one of the screws designed to hold it down was loose. The heel of one shoe caught on the strip; she tripped and was thrown to the street.

Appellant's evidence was that the metal strip was properly fastened down and that the front vestibule of the car was free of any defects. Respondent was carrying two shopping bags, and her fall was probably caused by tripping on one of these bags. In addition, three motormen who operated the streetcar over a period of about twenty-four hours, both preceding and following respondent's accident, testified, over respondent's objections, that over 750 passengers had ridden the streetcar during this period; that they had used the front vestibule of the car; and that no other passenger had tripped and fallen.

One of the assignments of error in the motion for a new trial was directed specically to this testimony of the three motormen. Respondent asserts that this evidence was incompetent and the trial court's error in the admission of this evidence was ample justification for the action of the court in sustaining the motion for a new trial. Appellant argues that the evidence was competent and was properly admitted.

Before examining these contentions, we must consider a preliminary matter. The only objection made to this testimony was that it was 'wholly immaterial.' Appellant argues that such an objection is so vague and general that it amounts to no objection at all. The cases cited by appellant on this point consider the sufficiency of a record for appellate review where the trial court has denied the motion for a new trial. They have no application here. If matters of error are raised in a motion for a new trial, the trial court has the authority to correct its errors, within the scope of the motion, even though no objection had previously been made to the matters of which complaint is made. Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482; Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 127 A.L.R. 711; Schierloh v. Brashear Freight Lines, Mo.Sup., 148 S.W.2d 747. If the testimony of the motormen was erroneously admitted, we hold that the trial court had authority to correct its error by sustaining the motion for a new trial.

While there is difference of opinion upon the subject, the weight of authority seems to support the view that evidence showing the non-occurrence of other accidents is not competent to show that a place where an accident occurred was reasonably safe and free from danger. Such evidence is held to be inadmissible because it has no reasonable tendency to prove that a place of injury was free from danger and because it raises collateral issues which have a tendency to confuse and mislead the jury. Cassanova v. Paramount-Richards Theatres, 204 La. 813, 16 So.2d 444 and cases cited; 128 A.L.R. 606. (Anno.)

Appellant concedes that such evidence has been rejected in every Missouri case which has had occasion to consider the matter. It argues, however, that some of these cases recognize, at least by implication, that such evidence of the non-occurrence of other accidents is admissible in a proper case where sufficient similarity of conditions is shown and where the proffered testimony is free from hearsay. Both appellant and respondent rely upon Blackwell v. J. J. Newberry Co., Mo.App., 156 S.W.2d 14, 21. In this case the plaintiff was injured when she fell over a stepladder in an aisle in defendant's store. Defendant offered to prove by its store manager that the ladder had been kept in the aisle, or an adjoining aisle, for a long time and that he had not observed, nor had his subordinates reported to him, any accidents caused by the ladder. The court held that the offer of proof was properly rejected because it called for hearsay testimony and it did not propose to show that the conditions were the same throughout the period intended to be covered by the testimony. The court indicated its belief that evidence of the non-occurrence of the prior accidents is usually excluded because it would tend to a confusion of issues and suggested that no absolute rule of admissibility could be established other than the requirement that the party against whom the evidence was introduced have the opportunity, by cross-examination or otherwise, of developing substantially all of the circumstances 'in connection with those instances when the peril was avoided.' The court pointed out that 'it has been uniformly held in this state that evidence that no accidents or injuries occurred at a particular place other than the one in question is not admissible to show freedom from negligence on the particular occasion or that the place or appliance was safe and not dangerous' and many Missouri cases supporting this statement are cited.

In Chase v. Wabash R. Co., 156 Mo.App. 696, 137 S.W. 999, 1000; Wright v. Kansas City Terminal R. Co., 195 Mo.App. 480, 193 S.W. 963, 965; Kelley v. Parker-Washington Co., 107...