Johnson v. Kansas City Public Service Co., 43550

• Decision Date: 08 March 1954
• Docket Number: No. 2,No. 43550,43550,2
• Citation: 265 S.W.2d 417
• Parties: JOHNSON v. KANSAS CITY PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 417

265 S.W.2d 417

JOHNSON v. KANSAS CITY PUBLIC SERVICE CO.

No. 43550.

Supreme Court of Missouri, Division No. 2.

March 8, 1954.

Charles L. Carr, Hale Houts, J. D. James, Hogsett, Depping, Houts & James, Kansas City, for appellant.

Hugh B. Downey, Harry A. Morris, Thomas M. Sullivan, Kansas City, for respondent.

WESTHUES, Commissioner.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff who was a passenger on a streetcar of the defendant company when it collided with a tractor-trailer truck at the intersection of 7th Street and Chelsea Avenue (sometimes referred to as Richmond Boulevard) in Kansas City, Kansas. A trial resulted in a verdict for plaintiff in the sum of $15,000. Defendant's motion for new trial was denied and defendant appealed from the judgment entered.

The defendant on this appeal, in its brief, complains of: two instructions given by the trial court at plaintiff's request; the refusal of an instruction offered by the defendant; the excessiveness of the verdict; and the failure of a juror to disclose on voir dire examination that he had had two claims for personal injuries. We shall dispose of the points in the order mentioned.

The facts as shown by the evidence are as follows: 7th Street is a north-south street, 52 feet in width, and Chelsea Avenue runs east and west. There are no stop signs on 7th Street at Chelsea but there are stop signs on Chelsea. The defendant maintains double streetcar tracks on Chelsea Avenue. On May 28, 1945, at about 10:00 P.M., plaintiff was a passenger on a westbound streetcar on Chelsea Avenue. When the streetcar reached a point a few feet west of the center of the intersection of 7th and Chelsea, it collided with a heavy transport tractor-trailer, loaded with hogs, going south on 7th Street. The collision caused plaintiff to be thrown from the streetcar to the street and to be seriously injured.

Plaintiff's evidence was that the streetcar was not stopped at the stop sign before entering the intersection; that the streetcar was going about 20 miles per hour and struck the trailer portion of the tractor-trailer as it was crossing the intersection in the west half of the street. Defendant introduced evidence that the streetcar was stopped before entering the intersection and then proceeded west at a speed of about 2 to 4 miles per hour; that about the time the front portion of the streetcar crossed the center of the street, the tractor-trailer, going at about 25 miles per hour, entered the intersection, swerved to the right so that the tractor missed the streetcar but the trailer struck and tore the vestibule off the streetcar. The tractor-trailer turned over on the west side of the intersection.

Defendant says 'Instruction 4 authorized a verdict for plaintiff for failure to yield the right of way even if the streetcar was stopped at the stop sign.' Defendant argues that the instruction should not have been given because the 'Failure to yield the right of way was not charged by the petition.' By instruction No. 4, the court told the jury that it was defendant's duty to exercise the highest degree of care and if the motorman saw or could have seen the tractor-trailer approaching the intersection in time to have avoided a collision 'by stopping at said stop sign and yielding the right of way to said tractor-trailer' and failed to do so, then a verdict for plaintiff was authorized. The question of yielding the right of way was an issue in the case from the beginning of the trial to the end thereof. Note what counsel for the defendant told the jury in the opening statement:

'The ordinances require that after stopping he must yield the right-of-way to any traffic so near to any traffic in the intersection or so near to the intersection as to constitute an immediate hazard. But having yielded the right-of-way to any traffic in the intersection or so near as to constitute an immediate hazard, he has a right to go on through, of course.'

Note instruction B requested by the defendant and given by the court: 'The court instructs the jury that if you find and believe from the evidence that operator Christian stopped the car at the stop sign located on the east side of the intersection in question before proceeding through the said intersection and thereby under all the facts and circumstances in evidence yielded the right of way, if so then your verdict will be for the defendant.'

Defendant's theory of defense was that the streetcar was stopped at the stop sign and then proceeded across the intersection at a low rate of speed from 2 to 4 miles per hour; that the tractor-trailer was so far from the intersection that the streetcar operator was not in duty bound to yield the right of way. The petition did not use the words 'yield the right of way' but charged that the 'operator saw, or by the exercise of the highest degree of care could have seen the said truck approaching the said intersection and in danger of collision with the said streetcar, in time to stop the said streetcar, or slacken its speed, * * *.' We hold that was sufficient and was, in fact, a charge that the operator of the streetcar failed to yield the right of way. The issue was tried and submitted to a jury. Its finding was against the defendant and there is no legal ground for complaint. Defendant cites a number of cases supporting the rule of law that it is error to instruct on an unpleaded ground of negligence. Among the cases is Beahan v. St. Louis Public Service Co., 361 Mo. 807, 237 S.W.2d 105. That case does not aid the defendant. Defendant throughout the trial met the issue of 'yielding the right of way' and the wording of the petition was sufficient to place that question in issue.

Defendant contends that instructions 1 and 4 given by the court were erroneous 'because they told the jury that defendant owed plaintiff the highest degree of care without the qualification of 'practicable'.' The collision in question occurred in Kansas and defendant cites Picou v. Kansas CityPublic Service Co., 156 Kan. 452, 456, 134 P.2d 686, as authority for its contention. In that case, the question of the correctness of an instruction was not presented or considered by the court. The plaintiff was injured when he slipped on a banana peeling in the aisle of a streetcar. The court held that plaintiff failed to prove that the street car company by the exercise of the highest degree of care practicable could have discovered the object in time to have removed it before the plaintiff fell. Defendant relies on the statement of the court to the effect, 134 P.2d 689(2), 'The established rule is that a carrier of passengers for hire, including a street railway company, is required to use the greatest skill, care and foresight practicable for safety of its passengers'. In the reply brief, defendant says the Kansas Supreme Court in the case of Dryden v. Kansas City Public Service Co., 172 Kan. 31, 238 P.2d 501, approved the holding in the Picou case, supra. In the Dryden case, 238 P.2d loc. cit. 504(1), the court said, 'The plaintiff being a passenger for hire on defendant's bus, the driver was held to the highest degree of care for his safety and is liable for the slightest negligence.' This statement was followed by citations of authorities including a quotation from the Picou case. In those cases, it is evident that the Supreme Court of Kansas did not hold or indicate that the word 'practicable' in any way modified or minimized the degree of care as is understood by the term 'highest degree of...