Kinney v. Metropolitan Street Railway Co.
| Decision Date | 14 July 1914 |
| Citation | 169 S.W. 23,261 Mo. 97 |
| Parties | BENJAMIN F. KINNEY v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. E. Porterfield, Judge.
Affirmed (conditionally).
John H Lucas, Boyle & Howell, Jos. S. Brooks, Chas. N. Sadler and M T. Prewitt for appellant.
(1) The court erred in overruling defendant's instruction in the nature of a demurrer to the evidence at the close of the evidence. Williams v. Railroad, 149 Mo.App. 489; Koenig v. Railroad, 173 Mo. 698; Klockenbrink v Railroad, 172 Mo. 678; Moore v. Railroad, 194 Mo. 1; Eppstein v. Railroad, 197 Mo. 720; Murrell v. Railroad, 105 Mo.App. 88; Abbott v. Railroad, 121 Mo.App. 582; Brody v. Railroad, 206 Mo. 509; Moore v. Railroad, 146 Mo. 582; 1 Bailey on Personal Injuries, sec. 1121. (2) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by plaintiff. Fechley v. Railroad, 119 Mo.App. 372; Mooney v. Kennett, 19 Mo. 555; Bailey v. Kansas City, 189 Mo. 514; Tarkio v. Lloyd, 179 Mo. 605; St. Louis v. Roche, 128 Mo. 541; Crone v. Mallinkrodt, 9 Mo.App. 316; Keane v. Klausman, 21 Mo.App. 489. (3) The verdict of the jury is excessive. Farrar v. Railroad, 155 S.W. 444; Brody v. Railroad, 206 Mo. 540; Newcomb v. Railroad, 182 Mo. 727; Scrivner v. Railroad, 260 Mo. 421. (4) The court erred in permitting attorney for plaintiff to improperly examine jurors on voir dire, and permitted said attorney to make improper remarks before the jury in the closing argument. (5) The court erred in overruling appellant's motion for a new trial. The verdict of the jury is excessive, and evidences passion and prejudice on the part of the triers of the fact. Lehnick v. Railroad, 118 Mo.App. 616; Spohn v. Railroad, 87 Mo. 84; Price v. Evans, 49 Mo. 336; Fugler v. Bothe, 117 Mo. 502; Waddell v. Railroad, 111 S.W. 542; Briscoe v. Railroad, 120 S.W. 1162; Wellman v. Railroad, 219 Mo. 126. (6) The court erred in giving instruction 2-p, on behalf of the plaintiff, in this: (a) The court refers the jury to the petition sued on for the injuries suffered by plaintiff. (b) It tells the jury that they may assess his damages at such an amount as they find will compensate him for his injuries so received, such injuries not being specified in the instruction. (c) It tells the jury they may take into consideration physical and mental anguish "sued for in this case," and then tells the jury that they may find for the plaintiff in such sum as will fairly compensate him for his injuries, it being alleged in the petition that plaintiff had been compelled to expend and became liable for seven hundred and fifty dollars for doctor's bills, medicines, etc. Hawes v. Stockyards Co., 103 Mo. 66; McGowan v. Store Co., 109 Mo. 578; Pandjiris v. Hartman, 196 Mo. 547; State v. Scott, 109 Mo. 231; Shaw v. Dairy Co., 56 Mo.App. 521; Grant v. Railroad, 25 Mo.App. 227; Schaub v. Railroad, 106 Mo. 74.
Brewster, Kelly, Brewster & Buchholz for respondent.
(1) The court did not err in overruling defendant's demurrer to the evidence. Theobold v. Transit Co., 191 Mo. 432; Trigg v. Water, Light & Transit Co., 215 Mo. 543; Petty v. Railroad, 179 Mo. 674; Carter v. McDermott, 29 Mo.App. Cas. (D. C.) 145; 10 Am. & Eng. Ann. Cas. 601. (2) The evidence offered was competent and proper, and in support of the allegations of the petition. Campbell v. Railroad, 175 Mo. 175; Lancaster v. Railroad, 143 Mo.App. 172; Bragg v. Railroad, 192 Mo. 350; Lee v. Railroad, 195 Mo. 425; Ahlfeldt v. Mexico, 129 Mo.App. 199; Lewis v. Railroad, 142 Mo.App. 585; Canfield v. Railroad, 98 Ill.App. 1. (3) The verdict was not excessive, and the final judgment of $ 15,000 should not be further reduced. Oglesby v. Railroad, 150 Mo. 137; Corby v. Telephone Co., 231 Mo. 417; Yost v. Railroad, 245 Mo. 219; Thompson v. Lumber Co., 147 S.W. 296; Railroad v. Spurney, 197 Ill. 471; Railroad v. Dunn, 106 Ill.App. 194; Light Co. v. Rombold, 68 Neb. 54; Kalfur v. Railroad, 161 N.Y. 660; Williamson v. Railroad, 65 N.Y.S. 1054; Railroad v. Scott, 21 Tex. Civ. App. 24; Railroad v. Abbey, 29 Tex.App. 211; Railroad v. Tolliver, 37 Tex. Civ. App. 437; Hollenbeck v. Railroad, 141 Mo. 97; Shohoney v. Railroad, 231 Mo. 131. (4) The court did not err in permitting the questions asked the jury on voir dire. Meyer v. Mfg. Co., 67 Mo.App. 389. (5) The court did not err in overruling defendant's motion for a new trial. The verdict was not so large as to indicate passion or prejudice on the part of the jury. Cases under point 3; Cook v. Globe-Democrat, 227 Mo. 471. (6) The court did not err in giving instruction 2 on behalf of plaintiff. Corrister v. Railroad, 25 Mo.App. 627; Kain v. Railroad, 29 Mo.App. 62; Britton v. St. Louis, 120 Mo. 444; Allen v. Springfield, 61 Mo.App. 273; Sherwood v. Railroad, 132 Mo. 345; Taylor v. Iron Co., 133 Mo. 363; Hartpence v. Rogers, 143 Mo. 633; Dwyer v. Transit Co., 108 Mo.App. 162; Lead Co. v. Railroad, 123 Mo.App. 408; Robertson v. Railroad, 152 Mo. 389.
Action for damages for personal injuries. Verdict for $ 20,000. There was a compulsory remittitur of $ 500, and a judgment for $ 15,000, from which the defendant has appealed. Plaintiff's age is not shown. He has a wife but no children. He testified that he had lived in Kansas City twenty-five or thirty years, and had been in the service of the defendant about five years as a motorman. He stated that he was experienced in that work. He was acting as a motorman on defendant's car No. 123 at the time of the alleged injury at about 9:40 p. m., June 11, 1909. His car was going east on the defendant's line from Kansas City to Independence. The place of the accident was in the country, about one hundred feet west from Tullis station, and three or four hundred feet east of Smalley station. It is a double track; the south track was used for cars bound eastward, and the north track for westbound cars. Those tracks were eight or ten feet apart. They were straight from Smalley to Tullis and then curved to the northward; there was a moderate upgrade. Beaumont station was a distance of two short blocks eastward from Tullis. There was a cluster of ordinary incandescent lights on the trolley pole at Tullis. The evidence is conflicting as to whether they were burning. Plaintiff testified that they were not. One witness for defendant stated that they were. Plaintiff's car No. 123 was an ordinary trolley car with the usual vestibule enclosed in front with sheet-iron waist high to the motorman as he sat on his stool. The windows of the vestibule had three sashes which opened by being dropped. The center and left sashes were up and closed. The right hand sash was down and opened. There was an ordinary incandescent light, and also an are light called a "headlight," attached to the front of the vestibule of plaintiff's car. The are light had a reflector to throw the light ahead along the track.
The injury was caused by a collision between plaintiff's car and a "work-car," sometimes called the "mogul." That car was an ordinary box car fitted with a motor, controller and vestibules similar to those on plaintiff's car. There were doors in each end and also in the middle of both sides. There were windows on both sides, one near each end, but none in the end. There were five sixteen-candle incandescent lights in a row in the center of the roof inside the car. It had an arc headlight.
Two witnesses for the defendant stated that the car extended six inches above the end door, but plaintiff testified that it was about eighteen inches above the end door. There were two lanterns lighted and sitting inside of the car on the floor. That car was in charge of Wilbur F. King, who acted as motorman, and with him were Jennings and Walters. That car had preceded plaintiff's car on the same track. There is no evidence showing that plaintiff was aware of its presence ahead of him. Plaintiff's car was going at ten miles an hour, and he testified that the car could have been stopped in seventy or eighty feet. Defendant's evidence was to the effect that it could have been stopped within thirty or forty feet. The work car stopped at the place of accident for the purpose of unloading tools and material for track repairs. There was no red light or light of any kind on the rear end of the work car. The rule and custom of defendant required a red light on the rear of all cars at night as a danger signal. The evidence as to such rule and custom was objected to by defendant on the ground that such rule and custom were not pleaded. The objection was overruled.
King testified that he could give no excuse for the absence of that red light. At the trial it was a contested question as to whether the rear door of the work car was open at the time of the accident and as to whether the lights in that car were then visible to the plaintiff. The plaintiff testified that no lights of any kind were visible on the work car or in it either before or after the collision.
Plaintiff's witness Diamond, a passenger on plaintiff's car, stated that from the inside of the car he could see nothing ahead on account of darkness. Mr. Roberts, another passenger, witness for plaintiff, testified that after the accident he went out of the car and forward so that he stood by the side of plaintiff's car near the front end and saw what appeared to be reflected lights in the work car.
Jennings one of the crew of the work car and witness for the defendant, said that after the car stopped he was standing leaning out of the door on the north side, looking back at plaintiff's car, which at first was about two blocks away, and said that he supposed it would stop and not run into the work car. That when it got fifty or seventy-five...
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