Mahany v. Kansas City Railways Company
| Decision Date | 07 March 1921 |
| Parties | O. W. MAHANY v. KANSAS CITY RAILWAYS COMPANY and D. W. NEWCOMER'S SONS, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Daniel E. Bird, Judge.
Reversed and remanded.
Charles N. Sadler for appellant, Kansas City Railways Co.
(1) The demurrer interposed at the close of plaintiff's evidence and renewed at the close of all the evidence should have been sustained. (a) No negligence was shown. No common law excessive speed was shown. Pope v. Railroad, 242 Mo 239; Lann v. Ry. Co., 216 Mo. 580; Petty v. Ry Co., 179 Mo. 674; Theobold v. Transit Co., 191 Mo. 432; Green v. Ry. Co., 192 Mo. 142. (b) Plaintiff could not rely on driver even if he was a guest. Leopard v. Ry. Co., 214 S.W. 268; Fechley v Traction Co., 119 Mo.App. 367; Burton v. Pryor, 198 S.W. 1117; Marsh v. Railroad, 104 Mo.App. 587. (c) Even if car was running at excessive speed, the contributory negligence of plaintiff bars his right to recover. Pope v. Railroad, 242 Mo. 232; Green v. Railroad, 192 Mo. 131; Reeves v. Railroad, 215 Mo. 169; Schmidt v. Railroad, 191 Mo. 215; Sanguinette v. Railroad, 196 Mo. 497; Mockowik v. Railroad, 196 Mo. 550; McCreery v. Ry. Co., 221 Mo. 31. (2) The court erred in giving instructions asked by plaintiff. (a) Instruction B fails to define what is meant by "negligent, excessive and dangerous rate of speed." Slezak v. Transit Co., 142 Mo.App. 702; Day v. Citizens Ry. Co., 81 Mo.App. 471; Gebhardt v. Transit Co., 97 Mo.App. 381. (b) There was no evidence upon which to base same. Jordan v. Transit Co., 202 Mo. 418; Rawling v. Frisco, 175 S.W. 935; Boyd v. Ry. Co., 236 Mo. 54. (c) Broadens issues made by pleadings. Bergfeld v. Dunham, 202 S.W. 253; Sims v. Dunham, 203 S.W. 652; Beave v. Transit Co., 212 Mo. 331. (3) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by plaintiff. (a) Broadens issues made by pleadings. Shafer v. Dunham, 183 S.W. 670; Hall v. Coal Co., 260 Mo. 351; Bergfeld v. Dunham, 202 S.W. 253; Davidson v. Transit Co., 211 Mo. 363; Roscoe v. Railroad, 202 Mo. 576. (b) Invades province of jury. Taylor v. Ry. Co., 185 Mo. 256; Glasgow v. Ry. Co., 191 Mo. 364; Smart v. Kansas City, 208 Mo. 199; Castanie v. Ry. Co., 249 Mo. ___ (4) The court erred in refusing to sustain motion for new trial on the ground of fraud and deceit. R. S. 1909, sec. 2022; Ridge v. Johnson, 129 Mo.App. 541. (5) The verdict is excessive. Clark v. Ry. Co., 234 Mo. 396; Rodney v. Ry. Co., 127 Mo. 676; Lyons v. Railroad, 253 Mo. 143; Dominick v. Coal Co., 255 Mo. 305; Holzmer v. Ry. Co., 169 S.W. 102; Gibney v. Transit Co., 204 Mo. 704; Morrell v. Laurence, 203 Mo. 363.
J. K. Cubbison and William G. Holt for appellants, D. W. Newcomer's Sons.
(1) The trial court erred in failing to sustain the demurrer of D. W. Newcomer's Sons at the close of plaintiff's testimony and at the close of all of the testimony and in failing to give the peremptory instruction requested by them. (2) The court erred in giving Instruction A requested by plaintiff. (3) The trial court erred in failing to grant a new trial on the ground of newly discovered evidence, and on the statutory ground, Section 2022, which provides in substance that in every case where a fraud or deceit has been practiced by one of the parties on the other, or the court is satisfied that perjury or mistake has been committed, a new trial should be granted. Standard Inv. Co. v. Hoyt, 164 Mo. 124; Ry. Co. v. Fogelsong, 42 Col. 341; In Jensen v. Hamburg American Packing Co., 23 A.D. 163, 48 N.Y.S. 630; Southard v. Bangor Railroad, 91 A. 948; State v. Murray, 91 Mo. 103; Rickroad v. Martin, 43 Mo.App. 597; Lessenden v. Ry. Co., 238 Mo. 247; Waddell v. Ry. Co., 111 S.W. 542; McDonald v. Railroad, 164 Mo.App. 56; Morrell v. Lawrence, 203 Mo. 363; Taylor v. Ry. Co., 185 Mo. 239; Lundahl v. Kansas City, 209 S.W. 564; Ossenberg v. Chemical Co., 218 S.W. 421; Young v. Lusk, 268 Mo. 640.
Atwood, Wickersham, Hill & Popham for respondent.
(1) The allegation in plaintiff's petition against both defendants was clearly proven. Negligence of the driver of the automobile was not imputable to plaintiff: Sluder v. Transit Co., 189 Mo. 142; Becker v. Ry. Co., 102 Mo. 549; Marsh v. Railroad, 104 Mo.App. 586; Montague v. Ry. Co., 193 S.W. 936; Burton v. Pryor, 198 S.W. 1117; Newton v. Harvey, 202 S.W. 249; Munger v. City of Sedalia, 66 Mo.App. 632; Profit v. Ry. Co., 91 Mo.App. 375. (2) Plaintiff occupied the position of a passenger for hire. The automobile was furnished by defendants Newcomer's Sons as a part of the funeral service and they were paid for it. Mahaney had no control or right of control over the driver of the automobile. Contributory negligence was not pleaded, and therefore cannot be relied upon as a defense. Aronovitz v. Arky, 219 Mo. 622; Hensley v. K. C. Rys., 214 S.W. 288; Johnson v. Traction Co., 176 Mo.App. 174. (a) Instructions A and B given on request of plaintiff clearly informed the jury as to what under the law would constitute liability against each of the joint tortfeasors. (3) The court did not err in denying motion for new trial on account of alleged so-called "fraud and deceit." This was a matter addressed solely to the discretion of the trial judge and this record will show that discretion was in nowise abused. Absent gross abuse of discretion, no question is presented on review by this court. Callison v. Eads, 211 S.W. 716; Oncken v. Ehrler, 222 S.W. 1047. (4) The point advanced by appellants that the court committed error in refusing to grant motion for new trial on ground of "newly discovered evidence" is wholly without merit. Not a single requirement of the law was met by appellants entitling them for new trial on this ground. State v. Speritus, 191 Mo. 41; Grocery Co. v. Hotel Co., 183 Mo.App. 440; Knox v. Railroad, 199 Mo.App. 72. (5) In view of the seriousness and permanency of plaintiff's injuries, the verdict of the jury was in nowise excessive. Hurst v. Railroad, 219 S.W. 567; Hays v. United Rys. Co., 183 Mo.App. 608, 167 S.W. 656; Greenwall v. Railroad, 224 S.W. 156; Dunton v. Hines, 267 F. 454.
The petition alleges, among other things, that on April 24, 1917, plaintiff attended a funeral conducted by defendants Newcomer, and was one of the funeral party transported by said defendants, in conducting said funeral; that in consideration of the funeral bill paid to said defendants Newcomer, the plaintiff and other members of said funeral party, were to be transported in vehicles by them, to and from the cemetery; that after the burial, while plaintiff and the other members of said party were being transported by said defendants Newcomer, from the cemetery, as aforesaid, in a large funeral automobile, operated by said defendants Newcomer and their agents, the automobile was driven along the public highway to a certain point near the cemetery, and near the town of Mt. Washington, in Jackson County, Missouri, where said highway crosses the system and railway tracks of defendant, The Kansas City Railways Company; that then and there, a street car operated by said Railways Company, and said funeral automobile, in which plaintiff was so riding, approached said intersection about the same time; that by the several and joint negligence and carelessness of said Railways Company in operating, managing and controlling said street car, and the defendants Newcomer and their agents and servants in managing, operating and controlling said funeral automobile, the said street car and said funeral automobile at said time collided and ran together, violently and with great force, whereby plaintiff was forcibly hurled against various portions of said automobile, caused to come in contact with other objects and was thereby severely and permanently injured.
The petition describes in detail the injuries alleged to have been sustained by plaintiff, and charges that he has been damaged to the extent of $ 50,000, etc.
Each of the above-named defendants filed a general denial.
The trial was commenced on May 12, 1919, before Judge Bird and a jury.
It is undisputed that the Railways Company was operating a line of railway between Kansas City and Independence, Missouri, and that it was operating the street car which injured plaintiff on April 24, 1917. It is also uncontroverted that the defendants Newcomer were the undertakers conducting said funeral, and that for the consideration paid them plaintiff and the other pallbearers were to be transported to the Mt. Washington Cemetery and return, in the automobile of said defendants. It is also uncontroverted that after the funeral plaintiff and about four or five of the above pallbearers were riding in the Newcomer automobile when plaintiff was injured.
The evidence tends to show that "Mount Washington Cemetery" is located south of the railway track. At the east end of the cemetery there was a public highway extending north and south, which crossed the railroad track practically at right angles. A short distance west of where the street railroad track crossed said public road, there is a covered station on the north side of the railroad track located about twenty-five feet west of a post mentioned in the evidence. The front vestibules of street cars going east are usually stopped about at this post, where passengers get on or off the car. It was about 106 feet from the entrance of the cemetery north to the railroad track. It is about a four or five per cent up-grade from the cemetery to the railroad track. The distance by actual measurement, from the post above mentioned, to the center of the crossing where plaintiff was injured, is 50 or 51 feet. About 90 feet west...
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