Jones v. Kansas City Public Service Co.

• Citation: 155 S.W.2d 775,236 Mo.App. 794
• Parties: STELLA JONES, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY, APPELLANT
• Decision Date: 06 October 1941
• Court: Court of Appeals of Kansas

155 S.W.2d 775

236 Mo.App. 794

STELLA JONES, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

October 6, 1941

Appeal from Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

AFFIRMED.

Judgment affirmed.

M. J Henderson, Thos. E. Deacy, M. J. Henderson, Jr. and Ben W Swofford for respondent.

(1) Plaintiff's petition, proof and her Instruction No. 1 properly presented this case upon the res ipsa loquitur doctrine, and the court did not err in giving said instruction. (a) Since the relationship of passenger and carrier existed between the plaintiff and the defendant and plaintiff's evidence showed that the car upon which she was a passenger started with a sudden, violent and unusual lurch and jerk, the plaintiff had the right to rely upon the res ipsa loquitur theory of negligence in this case. Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S.W. 932, 132 Am. St. Rep. 588; Powell v. St. Joseph Ry., Light, Heat & Power Co., 336 Mo. 1016, 81 S.W.2d 957; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Zimmerman v. K. C. Pub. Serv. Co., 226 Mo.App. 369, 41 S.W.2d 579; Doherty v. Mo. Railroad Co., 81 Mo. 325. (b) The benefit of the res ipsa loquitur doctrine cannot be withdrawn from the plaintiff unless her proof definitely showed the exact and specific negligent acts or omissions on the part of the defendant which caused the unusual movement of the street car upon which she was a passenger and the exact person guilty of these acts. Plaintiff's evidence did not go this far and therefore her case was properly submitted on the theory of general negligence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Cecil v. Wells, 214 Mo.App. 193, 259 S.W. 844; Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S.W. 932, 132 Am. St. Rep. 588; Porter v. St. Joseph Ry., Light, Heat & Power Co., 311 Mo. 66, 277 S.W. 913; Kinchlow v. K. C. K. V. & W. Ry. Co. (Mo.), 264 S.W. 416; Fowlkes v. Fleming, 322 Mo. 718, 17 S.W.2d 511; Powell v. St. Joseph Ry., Light, Heat & Power Co., 336 Mo. 1016, 81 S.W.2d 959. (c) Plaintiff's Instruction No. 1 was a proper instruction, based upon the res ipsa loquitur doctrine and upon the proof supporting that doctrine. Orcutt v. Century Building Co., 201 Mo. 424, 99 S.W. 1062; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Dougherty v. Mo. Railroad Co., 97 Mo. 647, 8 S.W. 900; Dougherty v. Mo. Railroad Co., 81 Mo. 325; Axon v. K. C. Pub. Serv. Co., 142 S.W.2d 342; Hartnett v. May Department Stores Co., 231 Mo.App. 1116, 85 S.W.2d 641; Thompson v. K. C. Public Service Co., 232 Mo.App. 1124, 114 S.W.2d 145. (d) Appellant's authorities distinguished. Bartley v. Metropolitan St. Ry., 148 Mo. 124, 49 S.W. 840; Lammert v. Wells, 13 S.W.2d 547; Stolovey v. Fleming, 8 S.W.2d 832; Duggan v. St. Louis Pub. Serv. Co., 56 S.W.2d 626; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21; Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767; Berry v. K. C. Public Service Co., 343 Mo. 474, 121 S.W.2d 825; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 255. (e) If there was any error in the submission of plaintiff's case under Instruction No. 1 (which respondent denies) such error was joined in by the defendant in its Instructions "C" and "G." Grimes v. Red Line Service Co., 85 S.W.2d 767. (2) The court did not err in refusing to give defendant's Instruction "K" for the reason that said instruction was improper, in that it commented upon the evidence, did not properly declare the law and its unobjectionable parts were adequately covered by other instructions. Carroll v. Mo. Power & Light Co., 231 Mo.App. 265, 96 S.W.2d 1074; Schwanenfeldt v. Metropolitan St. Ry. Co., 187 Mo.App. 588, 176 S.W. 1098; Laible v. Wells, 317 Mo. 141, 296 S.W. 428; Katon v. K. C. Ry. Co., 241 S.W. 983. (3) The verdict was not excessive. Gately v. St. Louis-San Francisco Ry. Co., 332 Mo. 1, 50 S.W.2d 54; Plater v. Kansas City, 334 Mo. 842, 68 S.W.2d 800; Webb v. M.-K.-T. Ry. Co., 342 Mo. 394, 116 S.W.2d 27; Zichler v. St. Louis Pub. Serv. Co, 332 Mo. 902, 59 S.W.2d 654; Irwin v. St. Louis San Francisco Ry. Co., 325 Mo. 1019, 30 S.W.2d 56.

Chas. L. Carr, Herbert C. Hoffman and Hogsett, Trippe, Depping & Houts for appellant.

(1) The court erred in giving plaintiff's Instruction 1. (a) Although plaintiff's proof was of specific negligence and the first paragraph of Instruction 1 submitted and required the jury to find specific negligence, the second paragraph of the instruction erroneously proceeded upon the res ipsa loquitur doctrine and erroneously authorized the jury to infer and find that defendant was negligent upon the res ipsa loquitur theory, and unless the jury found from "other" evidence and all the facts and circumstances that the submitted sudden, violent and unusual jerk of the car "was not due to the negligence of the defendant." Bartley v. Street Ry., 148 Mo. 124, 139; Stolovey v. Fleming, 328 Mo. 623, 8 S.W.2d 832, 833; Lammert v. Wells, 321 Mo. 952, 13 S.W.2d 547, 548; Duggan v. St. Louis Pub. Serv. Co. (Mo. App.), 56 S.W.2d 626, 627; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21, 25; Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767, 769; Berry v. Kansas City Pub. Serv. Co., 343 Mo. 474, 121 S.W.2d 825, 830; Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 454. (b) The second paragraph of Instruction 1 in advising the jury that they might "infer" and "find" defendant negligent if they found that the car was caused to be started with a sudden violent and unusual jerk and lurch and as a result thereof plaintiff was injured, unless they found "from other evidence" that the jerk and lurch were not due to the negligence of defendant, erroneously commented on the evidence, erroneously restricted the jury's consideration of the evidence, and erroneously placed an undue burden upon defendant. Kennedy v. Phillips, 319 Mo. 573, 589-590, 5 S.W.2d 33, 40; McCloskey v. Koplar, 329 Mo. 527, 542-543, 46 S.W.2d 557, 564. (2) The court erred in refusing to give defendant's requested Instruction K. The instruction correctly stated that if there was no jar or jerk of the car sufficient to harm or injure one seated and the motorman did not know that plaintiff was on her feet changing from one seat to another plaintiff was not entitled to recover. Defendant was entitled to have the jury so advised. Schwanenfeldt v. Metropolitan St. Ry. Co., 176 S.W. 1098, 1099. (3) The verdict of $ 5833.33 was excessive. Taylor v. Terminal Railroad Association (Mo. App.), 112 S.W.2d 944, 949-950; Potashnick v. Wells, 273 S.W. 777, 779.

OPINION

CAVE, J.

This is an appeal by the defendant from a judgment for $ 5833.33, obtained by plaintiff against it for personal injuries alleged to have been sustained by her while a passenger on one of defendant's street cars being operated by its agents and employees in Kansas City. For convenience, the parties will be referred to as they were in the trial court, plaintiff and defendant.

Plaintiff's second amended petition, upon which the case was tried, after alleging certain preliminary facts and matters, further alleged:

"Plaintiff further states that at said time and place said street car in which she was a passenger was so carelessly and negligently operated, controlled and maintained by the defendants, its agents, servants and employees as to cause the same to lurch and jerk violently and suddenly, and in an unusual and violent manner, thus and thereby causing the plaintiff to be thrown violently and forcibly against the seats attached to said car and onto the floor thereof, seriously and permanently injuring this plaintiff as hereinafter set out; that at all times herein mentioned this plaintiff was a passenger for hire upon said street car, and was at all times exercising due care and caution for her own safety."

The answer was a general denial. It is conceded by the defendant that the petition declared on general negligence, and therefore, so far as the petition is concerned, an instruction on the res ipsa loquitur theory would be authorized. However, defendant asserts that plaintiff's evidence, and the only evidence in the case concerning the cause and manner of the accident, proved the specific negligence on the part of the defendant which caused plaintiff's injuries, and therefore, the specific negligence should be submitted to the jury, even though the petition charged only general negligence. That is true, if the evidence clearly shows the specific negligence which caused the accident. [Berry v. Kansas City Public Service Co., 121 S.W.2d 825, and cases there cited.]

It is also defendant's contention that the plaintiff, by the first paragraph of her Instruction No. 1, did submit the case on specific negligence, and by the second paragraph of said instruction, "erroneously proceeded upon the res ipsa loquitur doctrine and erroneously authorized the jury to infer and find that defendant was negligent upon the res ipsa loquitur theory." Such contentions will require an examination of the evidence concerning the cause of the accident, and plaintiff's Instruction No. 1.

The evidence concerning the cause of plaintiff's alleged injury is as follows:

The plaintiff testified that she boarded one of defendant's street cars to go to her work, and after paying her fare took one of the longitudinal seats near the front of the car, and rode in that position for some distance. Near Troost Avenue and 31st Street, the car stopped to let off two passengers who had been occupying a cross seat, and as these two passengers started down toward the motorman, preparatory to leaving the car, the plaintiff left her seat at the front and started towards the back of the...