Knox v. Missouri, Kansas & Texas Railway Company
| Citation | 203 S.W. 225,199 Mo.App. 64 |
| Parties | EDNA E. KNOX, Respondent, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY and THE MISSOURI & KANSAS INTERURBAN RAILWAY COMPANY, Appellants |
| Decision Date | 18 February 1918 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
REVERSED AND REMANDED.
Judgment reversed and remanded.
Hadley Cooper, Neel & Wright and J. D. Bowersock for appellants.
Brewster Brewster, Kelly & Buchholz for respondent.
This is an action for personal injuries. Plaintiff recovered a verdict and judgment against both defendants and they have appealed. As a matter of convenience the defendant, Missouri, Kansas & Texas Railway Company, will hereinafter be referred to as the Railroad Company and the defendant, The Missouri & Kansas Interurban Company, will be referred to as the Interurban Company. The accident happened in the city of Olathe, Kansas, at about 9:55 P. M. on the 4th day of January, 1915, while plaintiff was a passenger upon one of the cars of the Interurban Company. At the point of accident the Frisco Railroad Company maintained four tracks running northwardly and southwardly across a public street in said city. The defendant's, Interurban Company, track ran along said street and crossed said four tracks in an easterly and westerly direction. When the car in which plaintiff was seated (which was a west-bound car) reached a point with its rear trucks on one of the railroad tracks, a caboose and freight train of the defendant Railroad Company, using the tracks of the Frisco Railroad, backed into the Interurban car and injured plaintiff.
The petition charges general negligence against the Interurban Company and specific negligence against the Railroad Company.
Plaintiff called as her witnesses the motorman and conductor on the Interurban Company's car upon which she was a passenger. The conductor testified that when the Interurban company's car reached a point twenty (20) or thirty (30) feet from the railroad tracks it stopped and he alighted from the car and went on to the tracks and looked in both directions for trains; that a Frisco train was standing to the north and near the crossing and had an engine attached to it; that about 100 or 140 feet south of the Interurban tracks he saw the caboose and rear end of the freight train that later backed into the car; that at that time the freight train was standing still; that he then motioned for the motorman to proceed across the tracks; that it was in the nighttime and there was no one on the rear of the freight train or anything there that one by looking could see and tell when the train moved; that he did not notice that the freight train had moved until its rear end had reached a point forty to fifty feet from the Interurban Company's tracks; that he knew that it moved at that point only by reason of his hearing the jamming of the cars, and that it was then too late to avoid the accident. The motorman testified that the conductor alighted from the car and went to the place described by the conductor and that the conductor gave him a signal to proceed across; that he was unable to see the freight train approaching for the reason that there was a string of cars standing on a track between him and the track upon which the freight train was standing, which obscured his view until he reached a point eight (8) feet from the track upon which was the freight train; that at that time he first saw the train and immediately attempted to stop his car but was unable to do so but thought that he might beat the train across, so he speeded up but was unable to get across before the collision. He further testified that when he reached a point where he could see the train he was going at a rate of speed that would require a distance of twenty (20) feet in which to stop the car. There was evidence on the part of the Railroad Company that the Interurban car was late; that it made no stop; that no one alighted from it before it proceeded across the railroad tracks, and that when the Railroad Company started its train, the latter gave three whistles.
At the trial the defendant, Interurban Company, sought to prove and argue to the jury that when its conductor went on to the tracks and saw the stationary train he was justified in assuming that the train would not back across the street and the Interurban's tracks without giving some warning; that the train started up and ran into the Interurban car without giving any warning or signal whatever to show that it was going to cross the street. The court refused this evidence and refused to permit counsel for the Interurban Company to argue the matter before the jury and reprimanded him for referring to it. This evidence, and the effort to argue the same to the jury, was refused by the court on account of objections made by the defendant, Railroad Company. The basis of these objections was that there was nothing in plaintiff's petition in reference to any failure of the Railroad Company to give any warning or signal before backing its train across the street in question. On the rulings of the court in reference to this matter the Interurban Company bases a claim of error, and in support thereof it urges that it had a right to introduce testimony tending to show and to argue to the jury any fact that would exculpate itself from negligence. There was evidence tending to prove that the cars were "kicked" or "shunted" across into the Interurban car. And in this connection this defendant suggests that there is a rule of law that a railroad company may not start up and back its trains or "kick" them across a public street without giving some warning. This is undoubtedly the rule. [Wilkins v. St. Louis, I. M. & S. R. R. Co., 101 Mo. 93; Fusili v. Mo. P. Ry. Co., 45 Mo.App. 535; O'Connor v. Mo. P. Ry. Co., 94 Mo. 150, 7 S.W. 106; Tabor v. Missouri Valley Ry. Co., 46 Mo. 353; 2 Shearman and Redfield on Negligence (6 Ed.), sec. 471.]
There was no mention in the pleadings of a failure on the part of the railroad company to give a signal or warning, and for this reason plaintiff, if objection had been made, could not have introduced evidence tending to show such failure. However, the offer made on the part of the Interurban Company had nothing to do with plaintiff's right to recover against the railroad company. The offer was made for the purpose of showing that the Interurban Company had used a high degree of care in the operation of its car as it was required to do. We think that the court erred in refusing to allow the Interurban Company to introduce this evidence and to argue the matter to the jury. Had such evidence been admitted, as it should have been, the defendant, Railroad Company, could have been protected by asking an instruction from the court to the effect that the jury was not to consider the evidence in connection with the railroad company's liability to plaintiff. [State v. Phillips, 24 Mo. 475; The Union Savings Association v. Edwards, 47 Mo. 445; Stotebier v. St. Louis Transit Co., 203 Mo. 702, 721, 102 S.W. 651; Carle v. DeSoto, 63 Mo.App. 161; Phillips v. Hamilton Brown Shoe Co., 178 Mo.App. 196, 165 S.W. 1183.]
The rule as to the admissibility of evidence under circumstances as present in this case is stated by Wigmore as follows:
"It constantly happens that a fact which is inadmissible for one purpose is admissible for other purposes; while, on the other hand, a fact which is entirely admissible, so far as some rules are concerned, is excluded because it fails to satisfy some other rule. . .
In other words, when an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some other capacity and because the jury might improperly consider it in the latter capacity. . .
Here the only question can be what the proper means are for avoiding the risk of misusing the evidence. It is uniformly conceded that the instruction of the court suffices for that purpose; and the better opinion is that the opponent of the evidence must ask for that instruction; otherwise, he may be supposed to have waived it as unnecessary for his protection." [Wigmore on Evidence, sec. 13.]
There is a rule that two joint defendants are not permitted to bring into the case the relative duties and obligations existing between themselves, as the controversy involves the liability of each to plaintiff and not their responsibilities among themselves. Defendants are not authorized to invoke agreements, rules or customs made among themselves, designed to define their rights in their business relations to each other under ordinary circumstances, and about which the plaintiff has no concern, nor can one of such defendants shift the entire responsibility, so far as may affect plaintiff, upon the offender against the agreement, rule or custom among themselves, when the non-offender could have avoided the accident by the use of ordinary or the highest degree of care. The law-making power and not the defendants can alone promulgate the obligation and liability of defendants to their passengers. [Taylor v. Grand Avenue Co., 137 Mo. 363, 39 S.W. 88; O'Rourke v. Lindell Rd. Co., 142 Mo. 342, 44 S.W. 254.]
Plaintiff attempts to invoke this rule as against the right of the Interurban Company to show that it was not guilty of negligence on account of the Railroad Company not giving the warning. The duty of the railroad company to give the warning was not based upon any rules or customs existing between these defendants, and the evidence was not introduced for the purpose of bearing on any duties, rights or liabilities of the defendants between themselves....
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