Mahaney v. Kansas City, Clay County & St. Joseph Auto Transit Co.

• Decision Date: 17 February 1932
• Docket Number: 29715
• Parties: Nell R. Mahaney, Appellant, v. Kansas City, Clay County & St. Joseph Auto Transit Company
• Court: Missouri Supreme Court

46 S.W.2d 817

329 Mo. 793

Nell R. Mahaney, Appellant, v. Kansas City, Clay County & St. Joseph Auto Transit Company

No. 29715

Supreme Court of Missouri

February 17, 1932

Appeal from Jackson Circuit Court; Hon. Ralph S. Latshaw Judge.

Reversed and remanded.

James Taylor, J. V. Jones and Madden, Freeman & Madden for appellant.

(1) The court erred in unduly limiting and restricting appellant's cross-examination of the witnesses Wilford and Goodbar in his prejudicial and improper comments, rulings and declarations in so doing. 5 Jones's Commentaries on Evidence (2 Ed.) sec. 2333, p. 4564; Gurley v. Transit Co., 259 S.W. 898; Rose v. Kansas City, 102 S.W. 580; Kribs v. Jefferson City, 215 S.W. 762; Clear v. Van Blarcum, 241 S.W. 82; Wair v. Am Car Co., 285 S.W. 155; Vaughn v. May, 9 S.W.2d 157; Hutchinson v. Richmond, 152 S.W. (Mo. Sup.) 64; Jackmann v. Ry. Co., 187 S.W. 786; Cooke v Glassheim, 202 N.Y.S. 599; DeBock v. DeBock, 184 P. 897; Laible v. Wells, 317 Mo. 141. (2) The court erred in excluding the offered testimony of Dr. Samuel Ayres as to prior inconsistent statements of respondent's witnesses Skinner and Kuhn, and in holding that the proper foundation for such impeachment evidence had not been laid, and in prejudicial comments, rulings and declarations in connection therewith. 2 Wigmore on Evidence (2 Ed.) sec. 1037, pp. 488, 489; State v. Carter, 259 Mo. 349; Chicago Ry. v. Harrelson, 14 F.2d 896; Garrett v. State, 6 Mo. 13; Peck v. Ritchey, 66 Mo. 114; Chicago Railroad v. Matthieson, 113 Ill.App. 246, 212 Ill. 292; Woods v. United States, 279 F. 706; People v. Tom Woo, 184 P. 389; Estill v. Bank, 113 S.E. 552; Riley v. State, 96 So. 604; Brooks v. State, 227 S.W. 673; State v. Worley, 96 S. E. (W. Va.) 56; Hill v. Wilson, 260 P. 4 (Okla) ; Wingate v. Davis, 252 P. 307; Klein v. Muhlhausen, 200 P. 436; Tacoma Ry. Co. v. Cothary, 235 F. 872; State v. Fellis, 207 P. 1074; Austin v. State, 254 S.W. 795; Bell v. State, 213 S.W. 647; Hasley v. State, 222 S.W. 579; Kribs v. Jefferson City Co., 215 S.W. 762; Clear v. Van Blarcum, 241 S.W. 82; Wair v. Am. Car Co., 285 S.W. 155; Vaughn v. May, 9 S.W.2d 157. (3) The court erred in giving, at the request of respondent, Instruction 4, for the reason that such instruction was misleading and confusing to the jury and improperly withdrew from the consideration of the jury material evidence in the cause. Northern v. Chesapeake Fisheries, 8 S.W.2d 995; Orris v. Rock Island, 279 Mo. 1; Stolovey v. Fleming, 8 S.W.2d 832; Latham v. Hosch, 207 Mo.App. 381; American Automobile Co. v. United Railways Co., 206 S.W. 257; Temple v. Envelope Co., 318 Mo. 280; Schulz v. Smercina, 1 S.W.2d (Mo. Sup.) 113; Komer v. Foundry Co., 300 S.W. 1028. (4) The court erred in giving, at the request of respondent, Instruction 10, for the reason that such instruction was misleading and confusing to the jury, was not supported by, based upon, or confined to the evidence in the cause, improperly declared the alleged acts therein specified to constitute negligence as a matter of law, constituted a comment upon the evidence, improperly assumed facts not in evidence, and improperly assumed, without requiring a finding of the jury, that appellant was guilty of the alleged acts therein specified and that said acts, or any of them, constituted negligence. Althage v. Motorbus Co., 8 S.W.2d 926; Priebe v. Crandall, 187 S.W. 607; Klein v. Transit Co., 117 Mo.App. 691; Goodwin v. Eugas, 290 Mo. 673; State ex rel. v. Trimble, 298 Mo. 418; Van Natta v. Street Ry., 133 Mo. 13; Greenstein v. Christopher, 178 S.W. 1179; Glaser v. Rothschild, 221 Mo. 180; Coffey v. Carthage, 186 Mo. 583; Fowlkes v. Fleming, 17 S.W.2d 517; Kansas City Ry. Co. v. Couch, 187 S.W. 66; Lord v. Delano, 188 S.W. 93; Patterson v. Rosenwald, 6 S.W.2d 664. (5) The court erred in giving, at the request of respondent, Instruction 9, for the reason that such instruction constituted a roving commission to the jury, ignored and misstated the standard of care imposed upon respondent and its agents, and was misleading and confusing to the jury. (a) The instruction as a roving commission to the jury. Yarnall v. Ry. Co., 75 Mo. 575; Ravenscraft v. Mo. Pac., 27 Mo.App. 617; Raybourn v. Phillips, 160 Mo.App. 534; State ex rel. v. Ellison, 270 Mo. 645; Kuhlman v. Water, Light & Transit Co., 307 Mo. 643; Schaff v. Nelson, 285 S.W. 1036. (b) In instructing that plaintiff could not recover if she alighted before the driver had "reasonable opportunity" to go to the rear of the bus, the instruction ignored the standard of care imposed upon respondent and its driver, namely, the highest practicable degree of care, and in effect imposed upon the driver only the duty to exercise ordinary care.

Harris & Koontz for respondent.

(1) Appellant's cross-examination of witnesses was neither unduly nor hurtfully restricted. Thompson on Trials (2 Ed.) secs. 352, 418. (2) There was no reversible error in refusing to permit impeachment. (a) Impeachment evidence is not evidence of the substantive fact. Sotebier v. Transit Co., 203 Mo. 702; Snyder v. Murray, 17 S.W.2d 645; Gardner v. Eldridge, 149 Mo.App. 219. (3) The giving of Instruction 4 was not error. Yarnell v. Rd. Co., 113 Mo. 570; Komer v. Foundry Co., 300 S.W. 1028. (4) The giving of Instruction 10 was not error. (5) The giving of Instruction 7 was not error.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

Plaintiff, a resident of Clay County, Missouri, sued defendant, a common carrier, to recover damages in the sum of thirty thousand dollars, for personal injuries alleged to have been sustained as the result of a fall, while attempting to descend from defendant's bus. On a trial the jury returned a verdict for defendant. Plaintiff, being unsuccessful in her motion for a new trial, duly perfected an appeal to this court.

The acts of negligence charged against defendant in plaintiff's petition are substantially as follows: Plaintiff, a passenger, was permitted, by the driver of the bus, to enter a small compartment in the rear part of the bus. The distance, from the ground to the floor of the compartment, is alleged to have been about three and one-half feet. The petition charges that the compartment was not equipped with handholds to aid passengers in entering or descending from the bus; that a small step was provided as the only means of assistance for passengers entering or leaving the compartment; that this step was directly below an iron bumper which materially interferred with and prevented persons leaving the compartment from getting a firm foothold on the step; that the step was bent downward so that it sloped toward the outside and was smooth and slippery; that plaintiff was permitted and required to step from the bus without assistance and being unable to get a firm foothold slipped and fell, causing her injury, as set out in the petition. The principle injury complained of in the petition and in plaintiff's testimony is that she suffered a severe sprain of the sacroiliac joint.

Defendant's answer consisted of a general denial, and a plea of contributory negligence setting forth four specific acts, alleged to have been committed by plaintiff, which contributed to her injury, if any she received.

The evidence, on the part of plaintiff, supports a finding that plaintiff on December 25, 1925, at Liberty, Missouri, entered a bus, belonging to defendant, as a passenger destined for Glenaire, Missouri. The main part of the bus, provided for passengers, had been filled prior to the time plaintiff arrived. The driver of the bus directed the plaintiff and a number of others to enter a small compartment in the rear part of the bus ordinarily used for the carrying of baggage. It was also equipped with four or five seats and was used by passengers, especially when the main part of the bus was filled. When the bus arrived at Glenaire it was stopped by the driver for the purpose of discharging and taking on passengers. Four of the passengers in the small compartment, where plaintiff was riding, decided to leave the bus at this point. The door was opened by one of the passengers. Two ladies descended from the bus prior to plaintiff, but in place of using the step they jumped from the floor to the ground. Plaintiff attempted to use the step and while in the act of getting off the bus fell and was injured. Plaintiff and a number of witnesses testified that the step was at least partially hidden by the rear bumper. Other witnesses testified that the step was bent downward so that it sloped to the outside. Plaintiff testified that as she stepped on the step her foot slipped, causing her to fall. Defendant offered testimony tending to prove that the type of bus in use on this trip did not have a bumper extending across any part of the step; that the bus was a new one, in good condition and that no defect existed in the step.

Plaintiff in her motion for a new trial and in her brief complains that the trial court unduly limited the cross-examination of defendant's witnesses, and also that the trial court improperly commented on the evidence to plaintiff's prejudice. The first occurrence of this, that requires our consideration, is when defendant's witness, Wilford, was being cross-examined by plaintiff's counsel. Plaintiff's witnesses had testified that the bus in question had attached to it a bumper that extended at least half way across the step leading to the rear compartment. Defendant's witness, Miche, the driver of the bus, had also testified that the bumper extended partially across the step. Wilford was the first witness to testify that the type of bus driven by Miche on that day did not have a bumper extended across the step. Wilford was not a witness to the accident. His testimony, as to the type of...