Massman v. Kansas City Public Service Co.

• Decision Date: 17 September 1938
• Docket Number: No. 34992.,34992.
• Citation: 119 S.W.2d 833
• Parties: MASSMAN v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Supreme Court

119 S.W.2d 833

MASSMAN v. KANSAS CITY PUBLIC SERVICE CO.

No. 34992.

Supreme Court of Missouri, Division No. 1.

September 17, 1938.

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

Action by George H. Massman against the Kansas City Public Service Company for death of plaintiff's wife allegedly caused by act of motorman of defendant's street car. From a judgment for defendant, plaintiff appeals.

Affirmed.

Wm. Buchholz and Hume & Raymond, all of Kansas City, for appellant.

Charles L. Carr and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, for respondent.

HYDE, Commissioner.

This case, recently reassigned to the writer, is an action for wrongful death of plaintiff's wife, Edith Massman. The jury found for defendant. Plaintiff has appealed from the judgment entered.

Plaintiff's assignments of error concern defendant's instructions given, plaintiff's instruction refused, and alleged improper conduct of a juror. The situation at the intersection where plaintiff's wife was injured was thus described:

"Defendant's Jackson & Roanoke car line terminated at 24th & Hardesty Avenue in Kansas City. Twenty-fourth Street extends east and west and Hardesty Avenue runs north and south. An eastbound Jackson & Roanoke street car upon reaching 24th and Hardesty customarily unloaded its passengers on 24th Street (about 50 feet) west of Hardesty. The street car then passed over a sharp curved track (referred to as a "Y") to the southeastward onto the (single) track running north and south in Hardesty. The street car then backed north (on Hardesty) across 24th Street and then proceeded south over another curved track back onto the north or west bound track on 24th Street and thence westward on its return trip." (Hardesty was 40 feet from curb to curb; it was 12 feet 3½ inches from the west curb to the west rail of the street car track; and 23 feet from the east curb to the east rail.)

Plaintiff's petition alleged that, while plaintiff's wife was walking east crossing the street intersection (Twenty-fourth and Hardesty) after alighting from defendant's street car, upon which she had been a passenger, the street car (turning into the track on Hardesty) approached the place in the intersection where "she was compelled to stop and stand still by reason of the fact that an automobile * * * was coming in a southerly direction across said street intersection in such a course and at such a rate of speed that (she) could not proceed"; that she "was in a place of great danger and imminent peril of being rolled between the front end and side of said street car and the side of said automobile"; that "defendant's servant and agent in charge of the operation of the defendant's street car * * * saw, or, by the exercise of ordinary care, on his part, could have seen, the position of danger and imminent peril of said Edith Massman in time to have stopped said street car and to have prevented the said street car from striking the said Edith Massman and knocking her down and injuring her and in time to have stopped said street car and thus have allowed the said Edith Massman to step back and to the west and out of the danger of being struck by said oncoming automobile"; and that "defendant, unmindful of its duty in the above behalf, and knowing, or by the exercise of ordinary care it would have known, the position of danger and imminent peril of the said Edith Massman, continued to carelessly and negligently operate its said street car around said `Y' and with the front end of said street car extending far to the east and north of the defendant's rails, thereby the only avenue of escape of the said Edith Massman was shut off and foreclosed to her and the said Edith Massman was caused to be struck and knocked down and rolled by said street car and said automobile."

Plaintiff had evidence of one witness (Mrs. Pella) that plaintiff's wife got 4 feet east of the street car track but stepped back toward it, when the automobile approached from the north, and was struck by defendant's street car, after the automobile had passed her. She positively stated that the automobile did not strike her. Another witness for plaintiff (Mr. Yates), who crossed the intersection just ahead of Mrs. Massman, said that he heard her scream when she was between the automobile and the street car; that at that time "about half of the automobile was passed" by her; that the front end of the street car was then about even with "the driver's seat of the automobile"; that he saw her "falling just as the automobile got by"; that at that time the front end of the street car had passed the place where she was falling; that she fell about 2 feet from the track; and that he did not see whether it was the automobile or the street car that struck her. Plaintiff obtained an instruction submitting the case, under the humanitarian rule, upon the theory that the street car did strike her, and it is conceded that plaintiff made a submissible humanitarian case on that theory.

Most of the other testimony tended to show that Mrs. Massman was struck only by the automobile. One of plaintiff's witnesses (Mr. Williford) testified that he saw Mrs. Massman falling as the rear end of the automobile passed; that at that time the front end of the street car was on the curve 8 or 10 feet back of the automobile; and that the automobile was traveling "about centerway between the street car tracks and the curbing of the sidewalk * * * cutting to the southeast." The speed of the street car was estimated to be from 4 to 5 miles per hour and estimates of the speed of the automobile varied from 10 to 30 miles per hour. The driver of the automobile (called by plaintiff) testified that he was driving on the street car track before he reached the intersection; that he "swung out to miss the street car"; that he passed the street car on the east side; that he saw plaintiff's wife "going east and facing southeast * * * in front of the street car 6 or 8 feet just crossing the track"; that his car was then "15 or 20 feet north" of her; that he heard her scream but did not feel any jar or impact; and that if his car "did hit her, it would have been the rear end because the front end missed her." The daughter of this driver, who was riding with him (also called by plaintiff), said she did not know whether or not their car hit Mrs. Massman but she knew "the front end of the car didn't hit her."

Defendant's evidence (its motorman's testimony) was that Mrs. Massman had crossed the track as the street car "was starting in the curve"; that she stopped "about eight or ten feet" east of the track, "seemed to be confused and just at that time an automobile came along from the north and struck her"; that she was struck by the back wheels and right side of the automobile; that, at the time she was struck, the front end of the automobile was ahead (south) of the front end of the street car "five or six feet"; and that no part of the street car touched her. The motorman also said that he first saw the automobile when "it was a hundred fifty or two hundred feet north * * * from 24th Street"; and that he did not pay any attention to the automobile after the street car started to turn, at which time it was 100 feet north of him. He said that he could have stopped the street car in 8 feet, and there was evidence that he could have stopped it on the curve in 4 to 6 feet. The police officers, who took the driver of the automobile to the police station, said that he told them "he felt an impact", and that "the lady had walked into the side of his car." The hospital record and the death certificate recited that Mrs. Massman's injuries were caused by an automobile. The overhang of the street car, from the rails, was about 18 inches. In making the curve on to the Hardesty Avenue track, the front part of the car extended between 3 and 4 feet beyond the east rail. This occurrence was in the month of December; the time was about 4 P.M.; and there was snow falling but melting as it fell.

Plaintiff requested the following instruction, which was refused, and assigns its refusal as error, namely:

"The Court instructs the jury that if you believe and find from the evidence that the deceased, Edith Massman, was in a position of peril on Hardesty Avenue in front of the street car mentioned in evidence, said peril arising from the danger of being struck by the said approaching street car, and that defendant's operator in charge thereof saw or by the exercise of ordinary care could have seen said deceased and could have seen and known that she was in such position of peril, if any, by the exercise of ordinary care on his part in time to have stopped the said street car and thereby avoided collision between the said street car and the said deceased, and if you further find and believe from the evidence that the said operator negligently failed to stop the said street car, and that by reason of the said negligence, if any, the deceased in an effort to escape collision with said street car so moved on the said street that she was struck and knocked down and rolled either by the said street car or said automobile or both and injured so that she thereafter died as a direct result of the said injuries and the said negligence, if any, then your verdict must be for the plaintiff."

Plaintiff's argument concerning this instruction, and the theory upon which it is contended it was proper, is as follows:

"The jury could properly have found that Mrs. Massman was forced to stop two and one-half feet from the east rail of defendant's car track by the approach of the automobile from the north; that Mrs. Massman was then in peril from the overhang of the approaching street car which would extend out three or four feet at that point; that Mrs. Massman realized her peril and tried to step to the rear out of danger but could not go further in that direction because of the approach of this street car; that the...