Kamoss v. Kansas City & W. B. Ry. Co.

• Citation: 202 S.W. 434
• Decision Date: 18 February 1918
• Docket Number: No. 12700.,12700.
• Court: Court of Appeal of Missouri (US)
• Parties: KAMOSS v. KANSAS CITY & W. B. RY. CO.

202 S.W. 434

KAMOSS v. KANSAS CITY & W. B. RY. CO.

No. 12700.

Kansas City Court of Appeals. Missouri.

February 18, 1918.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Anna Kamoss against the Kansas City & Westport Belt Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Clyde Taylor, of Kansas City, for appellant. Handy & Swearingen, of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a judgment in the sum of $6,500 for the death of her husband, and defendant has appealed. Plaintiff insists that this appeal should be dismissed for the reason that plaintiff says that the appeal was not taken at the same term that the motions for a new trial and in arrest of judgment were overruled.

The motions for a new trial and in arrest were overruled on May 1, 1916, at the March term of court, and on the 5th day of May, and at the same term, defendant filed its motion to set aside the order overruling defendant's motions for a new trial and in arrest of judgment. On May 10, 1916, at the May term of the court, plaintiff filed a motion to strike defendant's motion to set aside the order overruling the motions for a new trial and in arrest from the files, and at the same term the court heard the last-named motion and overruled the same. At the September term, 1916, of the court, defendant's motion to set aside the order overruling its motions for a new trial and in arrest was overruled, and at said September term of the court this appeal was perfected. Under the circumstances the motion to set aside the order overruling the motions for a new trial and in arrest of judgment carried the case over to the succeeding, or September, term. Chandler v. Gloyd, 217 Mo. 394, 116 S. W. 1073.

Plaintiff claims that the motion to set aside the order overruling the motions for a new trial and in arrest of judgment was frivolous, and for that reason did not carry the case over to the succeeding term. The motion stated that defendant desired to submit further authorities to the court on the question of the motions for a new trial and in arrest of judgment. Without passing on the question as to whether, even if the motion were frivolous, it did not carry the case over, it is apparent it was not frivolous, as the court refused to strike it out.

The evidence shows: That Herman E. Kamoss, the husband of plaintiff, between 6:30 and 7:00 o'clock of the evening of November 10, 1914, was walking southward between Forty-Sixth and Forty-Seventh streets in Kansas City, Mo., upon a pathway between defendant's tracks. This pathway had long been used by the public with the acquiescence of the defendant. That when he went upon the track he looked for cars approaching from the north, but failed to see any, and proceeded for a distance southward with his back to the north without looking behind, when he was suddenly struck and killed by one of defendant's cars. The evidence further shows that he apparently knew nothing of the approach of the car until it struck him, when he jumped.

On cross-examination defendant's motorman was asked if he did not refuse to testify before the coroner's jury, and, over an objection, he was permitted to answer that he had not. He was then asked why he had not so testified, and, over an objection, answered that one of the men down at the Metropolitan had advised him not to so testify. Defendant urges that the court erroneously admitted this testimony, citing Masterson v. Transit Co., 204 Mo. loc. cit. 524, 103 S. W. 48. Substantially the same questions were asked the motorman in that case, and he answered that he refused to testify before the coroner because it might have incriminated him, and the court in that case held that the right of the motorman to testify before the coroner under the circumstances was a personal right, of high importance, one expressly guarded in the Constitution itself, and that the court should not put him under the suspicion of carrying a guilty conscience because he had exercised such a privilege.

The facts in this case are entirely unlike those in the Masterson Case. The motorman in the case at bar, so far as the record shows, did not refuse to testify at the coroner's inquest on any constitutional ground or any other ground except that defendant had told him not to do so. This evidence tended to show that the true cause of the death was attempted to be concealed. This conduct on the part of the defendant was admissible as an admission that defendant was conscious of being in the wrong, and that its cause was unjust. Rice v. Jefferson City Bridge & Transit Co., 186 S. W. loc. cit. 573, and cases therein cited.

One of plaintiff's instructions is attacked because defendant says it required the conductor as well as the motorman to use ordinary care to see the deceased. Of course, it was not the duty of the conductor to keep a watchout for pedestrians. Heinzle v. Railway, 182 Mo. 528, 81 S. W. 848; ...