Lotta v. Kansas City Pub. Serv. Co.

• Decision Date: 26 May 1938
• Docket Number: No. 35587.,35587.
• Citation: 117 S.W.2d 296
• Parties: WILLIAM LOTTA ET AL. v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

117 S.W.2d 296

WILLIAM LOTTA ET AL. v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 35587.

Supreme Court of Missouri.

Division One, May 26, 1938.^*

Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.

REVERSED.

Charles L. Carr, Cooper, Neel, Kemp & Sutherland and E.E. Ball for appellant.

(1) The court erred in giving, at the request of respondents, Instruction 2 for the reasons hereinafter set out: (a) The evidence does not make out a case against appellant under the humanitarian rule, as submitted in said Instruction 2. (b) The operator of the street car was not guilty of any negligence within the humanitarian rule in driving his street car upon and proceeding across the Holmes Road slab. Smith v. Wells, 31 S.W. (2d) 1023; Ziegelmeier v. East St. L. & Sub. Ry. Co., 51 S.W. (2d) 1029; Banks v. Morris & Co., 257 S.W. 486; McGowan v. Wells, 24 S.W. (2d) 638; Wallace v. St. Joseph Ry., L.H. & P. Co., 77 S.W. (2d) 1011; Ridge v. Jones, 71 S.W. (2d) 713; Huckleberry v. Mo. Pac. Ry. Co., 26 S.W. (2d) 983; Mahl v. Terrell & Kiel, Trs., St. L. Pub. Serv. Co., 342 Mo. 15. (c) A person confronted with a sudden emergency is not held to the same accuracy of judgment as would be required of him under circumstances which permitted time for deliberation and the mere fact that an injury might have been averted had some other course been followed does not constitute a test of negligence. Ransom v. Union Depot Co., U.S. Express Co., 142 Mo. App. 361, 126 S.W. 785; Mayne v. May Stern Furniture Co., 21 S.W. (2d) 213; McCollum v. Winnwood Amus. Co., 59 S.W. (2d) 697; Williams v. Term. Railroad Assn., 98 S.W. (2d) 655. (d) Said Instruction 2 was misleading and confusing to the jury and erroneously submitted hypotheses of facts which were not supported by, based upon, or confined to the evidence in the case. (e) Said Instruction 2 erroneously submitted the hypothesis of the truck driver's obliviousness of peril. Start v. Natl. Newspaper Assn., 222 S.W. 872; Shaw v. Fulkerson, 96 S.W. (2d) 498; Bury v. St. L.-S.F. Ry. Co., 17 S.W. (2d) 552; Althage v. Peoples Motorbus Co., 8 S.W. (2d) 926; Lackey v. United Rys. Co., 231 S.W. 963. (f) Said Instruction 2 erroneously submitted the hypothesis that respondents' son (Alexander R. Lotta) was run over by the street car and killed as a direct result of the collision between the truck and the street car, there being no evidence on which to base such an inference. (g) Instruction 2 erroneously submitted to the jury the hypothesis of a collision occurring between the truck and the street car when the "truck reached a place where the street car tracks cross said Holmes Street or Holmes Road," there being no evidence to support this hypothesis. Bury v. St. L.-S.F. Ry. Co., 17 S.W. (2d) 549. (h) Said Instruction 2 was erroneous in that it broadened the danger zone and placed a duty upon the appellant company to begin to stop or slacken the speed of its street car prior to the time the respondents' son entered a position of peril. Elkin v. St. L. Pub. Serv. Co., 74 S.W. (2d) 603; Wallace v. St. Joseph Ry. Co., 77 S.W. (2d) 1011; Ziegelmeier v. East St. Louis Co., 51 S.W. (2d) 1027; Ridge v. Jones, 71 S.W. (2d) 713; Lamoreux v. St. L.-S.F. Ry. Co., 73 S.W. (2d) 330, 87 S.W. (2d) 643. (2) The court erred in refusing to give, at the close of all the evidence, and at the request of appellant, Instruction B, in the nature of a demurrer.

Hipsh & Sadler and Chas. N. Sadler for respondents.

(1) The court did not err in giving Instruction 2 for respondents. (a) The evidence clearly makes a submissible case of humanitarian negligence. Hasenjaeger v. M.K. & T. Ry. Co., 53 S.W. (2d) 1066; Homan v. Mo. P. Ry. Co., 64 S.W. (2d) 623; Cech v. Mallinkrodt Chemical Co., 20 S.W. (2d) 511; Pekins v. Term. Railroad Assn., 102 S.W. (2d) 915; Smith v. K.C. Pub. Serv. Co., 43 S.W. (2d) 548; Sullivan v. Union Elec. L. & P. Co., 56 S.W. (2d) 97; Murphy v. Quick Tire Service Co., 47 S.W. (2d) 202; Hornbuckle v. McCarty, 243 S.W. 327; Malone v. Ry. Co., 232 S.W. 785; Swinehart v. K.C. Rys. Co., 233 S.W. 59; O'Sullivan v. K.C. Rys. Co., 237 S.W. 643; Homan v. Mo. Pac. Ry. Co., 70 S.W. (2d) 869; McWhorter v. Dale Chevrolet Co., 88 S.W. (2d) 245; Moordale v. Park Circuit Realty Co., 58 S.W. (2d) 500; State ex rel. v. Haid, 28 S.W. (2d) 97; Banks v. Morris & Co., 257 S.W. 484; Myers v. Kennedy, 267 S.W. 811; McCloskey v. Renne, 37 S.W. (2d) 950; Wallace v. St. Joseph Ry., L., H. & P. Co., 77 S.W. (2d) 1012; Elkins v. St. L. Pub. Serv. Co., 74 S.W. (2d) 603; Maginnis v. Mo. Pac. Ry. Co., 187 S.W. 1165; Ellis v. Met. St. Ry. Co., 138 S.W. 23; Kloeckener v. St. L. Pub. Serv. Co., 53 S.W. (2d) 1043; Alexander v. St. L.-S.F. Ry. Co., 38 S.W. (2d) 1023; Hencke v. St. L. & H. Railroad Co., 72 S.W. (2d) 799; Gray v. Columbia Term. Co., 52 S.W. (2d) 809; Freeman v. Berberich, 60 S.W. (2d) 393; Hoelzel v. Ry. Co., 85 S.W. (2d) 126; Martin v. Fehse, 55 S.W. (2d) 440. (b) The court did not err in submitting obliviousness and inability to extricate, in the alternative. Bedsaul v. Feeback, 106 S.W. (2d) 432; Hogan v. K.C. Pub. Serv. Co., 19 S.W. (2d) 711; Vulgamott v. Trimble, 253 S.W. 1014. (c) The court did not err in submitting the hypothesis that respondent's son was run over and killed as a direct result of the collision. Pulsifer v. Albany, 47 S.W. (2d) 236. (2) The verdict is not excessive, or the result of bias and prejudice. Grier v. K.C., C.C. & St. J. Ry. Co., 228 S.W. 454; Ellis v. Met. St. Ry. Co., 138 S.W. 33; Herrell v. St. L. & S.F. Ry. Co., 23 S.W. (2d) 102; Talbert v. C., R.I. & P. Ry. Co., 15 S.W. (2d) 762; Klusman v. Harper, 298 S.W. 121. (3) The court did not err in refusing to grant a new trial on account of misconduct of juror Hugh Malone. (a) The burden is upon complaining party to show that knowledge of alleged misconduct came to it after the trial was finished. Naylor v. Smith, 46 S.W. (2d) 603; Thornton v. Stewart, 240 S.W. 504; Clack v. K.C. Elec. Wire Subway Co., 119 S.W. 1015. (b) Unless it affirmatively appears that a juror is disqualified and subject to challenge for cause, the burden is upon the complaining party to show that such juror was in fact prejudiced and that such prejudice affected the result of the trial. Naylor v. Smith, 46 S.W. (2d) 603; Humburger v. Ringle, 64 S.W. 106; Shields v. K.C. Rys. Co., 264 S.W. 890; Williams v. Fleming, 284 S.W. 794; St. Louis Belt & Term. Ry. Co. v. Cartan R.E. Co., 103 S.W. 519; Zimmerman v. K.C. Pub. Serv. Co., 41 S.W. (2d) 579; Plater v. Kansas City, 68 S.W. (2d) 804; Waeckerley v. Colonial Baking Co., 67 S.W. (2d) 783; McGuire v. Amyx, 297 S.W. 968; Steffen v. S.W. Bell. Tel. Co., 56 S.W. (2d) 52; Harding v. Fidelity & Cas. Co., 27 S.W. (2d) 778.

HYDE, C.

This is an action for damages for the wrongful death of plaintiffs' minor son, who was run over by a street car. Suit was brought against both the street car company (Kansas City Public Service Company) and the owner (Christian Rasmussen) who was also the driver of the truck in which the boy was riding. The trial court submitted the case against the Public Service Company solely upon the humanitarian doctrine, refusing to give a requested primary negligence instruction. The jury returned a verdict against the Public Service Company for $10,000, but found in favor of defendant Rasmussen. The Public Service Company has appealed from the judgment entered against it.

Appellant contends that its demurrer to the evidence at the close of the case should have been sustained because there was no case under the humanitarian rule and because there was not sufficient evidence to sustain any of the charges against it based on primary negligence. These were failure to stop the street car before crossing the highway on which the truck was traveling; failure to keep proper watch for persons upon the highway; failure to give a warning; crossing the highway so close to the truck that the driver could not avoid a collision; increasing the speed of the street car after starting across the highway; and employing a man too old to properly operate the car. The scene of the accident was the intersection of appellant's private right of way (running east and west) with Holmes Road, which was a north and south county highway (outside of Kansas City) paved with concrete slab twenty-four feet wide. The street car was going west on a track almost level but slightly upgrade, and the truck was coming north which was down a rather steep hill to within 100 feet of the track. Near the crossing the truck swerved sharply to the left (west) off the pavement and on to a gravel station walk in front of a shelter house or station maintained by appellant on the south side of its track. As it came alongside the street car in front of this shelter house the door came open and plaintiffs' son was thrown out. He fell under the car at a point about thirty-six feet west of the slab and its rear wheels ran over him. The street car stopped with the rear end only five or six feet from the boy's body. On the west side of the road 285 feet south of the track, on which the street car was running, there was a driveway entering the grounds of the Ivanhoe Country Club. Most of the witnesses said the truck had just passed this entrance when they first saw it, and that the car was then entering onto the slab. The east side of the shelter house at appellant's regular stopping place or station was 31½ feet west of the west edge of the slab. The shelter house was 12½ feet wide, and there was a trolley pole in the station gravel walk 8½ feet west of the west side of the shelter house. The truck stopped with its bumper against this pole. The front end of the street car was beyond this pole when it stopped. On the south side of the crossing there was a gravel road running somewhat downgrade to the east, along the south side of the track.

Plaintiffs' witness Cobb said that he was standing in the front vestibule of the street car;...