McFadden v. Metropolitan Street Railway Company

• Decision Date: 22 January 1912
• Citation: 143 S.W. 884,161 Mo.App. 652
• Parties: MICHAEL J. McFADDEN, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY and FRANK E. LOTT, doing business under the firm name and style of VIEWING KANSAS CITY AUTOMOBILE COMPANY, Appellants
• Court: Kansas Court of Appeals

143 S.W. 884

161 Mo.App. 652

MICHAEL J. McFADDEN, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY and FRANK E. LOTT, doing business under the firm name and style of VIEWING KANSAS CITY AUTOMOBILE COMPANY, Appellants

Court of Appeals of Missouri, Kansas City

January 22, 1912

Appeal from Jackson Circuit Court.--Hon. R. B. Middlebrook, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Haff Meservey, German & Michaels for appellant, Frank E. Lott.

(1) Plaintiff's petition failed to state a cause of action. Stanley v. Union Depot Company, 114 Mo. 606. (2) The court erred in overruling defendant Frank E. Lott's demurrer at the close of plaintiff's testimony. Wolf v. Traction Co., 119 Ill.App. 481; Railroad v. Rood (Ill. Sup. Ct.), 45 N.E. 238; Black v Railroad, 187 Mass. 172, 72 N.E. 970; Potts v. Railroad, 33 F. 610; Lohner v. Railroad, 116 Ill.App. 365; Fagan v. Rhode Island Co., 60 A. 672; Railroad v. Gibson, 96 Pa. St. 83; 3 Thompson, Negligence, 2756; Cleveland v. Osborn, 63 N.E. 604; Hamilton v. Railroad, 114 Mo.App. 508; Orcutt v. Building Co., 201 Mo. 424. (3) The court erred in giving plaintiff's instruction No. 2. Patterson v. Railroad, 81 P. 531; Kay v. Railroad, 47 N.E. 751; Traction Co. v. Webb, 102 N.W. 258; Gibson v. Trust Co., 58 N. E. (Mass.) 278; Railroad v. Higgs, 76 N.E. 299; Harrison v. Railroad, 134 Cal. 549; Hawkins v. Railway, 28 P. 1021; Scott v. Wood, 22 P. 871. (4) Instruction No. 3, given on behalf of the plaintiff, was erroneous, in permitting the jury to find for the plaintiff in the sum of $ 350 for medical services. (5) The verdict was so excessive and unwarranted as to show passion and prejudice on the part of the jury. Chitty v. Railroad, 166 Mo. 435; Whalen v. Railroad, 60 Mo. 323; Adams v. Railroad, 100 Mo. 555; Nichols v. Crystal P. S. Co., 126 Mo. 55; Furnish v. Railroad, 102 Mo. 438; Lombard v. Railroad, 47 Iowa 494; Slette v. Railroad, 53 Minn. 341.

John H. Lucas and Clarence S. Palmer for appellant, Met. St. Ry. Co.

(1) It was error to reject the testimony of witness Taylor showing bias of witness Hill. 2 Encyc. of Evidence, 408; Norton v. Harris, 6 N.Y. 345; Starks v. People, 5 Denio 106; 1 Greenleaf on Ev. (16 Ed.), sec. 450; Starkie on Ev. (10 Ed.), 202; 3 Jones on Ev., sec. 829; Abbot's Trial Brief (2 Ed., Civil Jury Trials), p. 192; 2 Wigmore on Evidence, sec. 978; Schultz v. Railroad, 89 N.Y. 242; Waddingham v. Hulett, 92 Mo. 528. (2) The court erred in rejecting the testimony showing the experience of the motorman who had since died. Cook v. Parham, 24 Ala. 21; Montgomery, etc. v. Edwards, 41 Ala. 667. (3) It was error to exclude evidence that plaintiff made no claim for damages for nearly two years after the alleged injury. 1 Wigmore on Ev., sec. 284. (4) The court erred in giving instruction one on behalf of defendant Lott. Grout v. Railroad, 151 Mo.App. 330; Helker v. Railroad, 22 Wash. 319, 61 P. 40; Wilson v. Railroad, 77 S.W. 238; Markowitz v. Railroad, 186 Mo. 350. (5) Plaintiff's instruction No. 3 was erroneous in allowing the jury to find $ 350 for medical services. There was no evidence on which to base such instruction. (6) The verdict was excessive.

Milton Schwind for respondent.

(1) Plaintiff's instruction number three rightly limited recovery for medical services to the amount claimed in the petition. Tinkle v. Railroad, 212 Mo. 448. (2) At the close of plaintiff's testimony, there was a prima facie case made against defendant Lott. Olsen v. Railroad, 152 Mo. 426; McPherson v. Railroad, 97 Mo. 253; Eswin v. Railroad, 96 Mo. 294. (3) Plaintiff's instruction number two rightly put the burden on defendant Lott to exonerate himself of negligence. Clark v. Railroad, 127 Mo. 197; Och v. Railroad, 130 Mo. 52; Olsen v. Railroad, 152 Mo. 426; Redmon v. Railroad, 185 Mo. 9; Logan v. Railroad, 183 Mo. 583; McRae v. Railroad, 125 Mo.App. 562. (4) Defendant Lott's instruction K was properly refused. One element in it was covered by plaintiff's instruction number one, and the other ignored the evidence as to sounding the gong. Beatty v. Clark, 110 Mo.App. 1; Moore v. Trans. Co., 193 Mo. 411 (7th Syl.); Chrismer v. Bell T. Co., 194 Mo. 189. (5) Plaintiff's instruction number seven is a correct statement of the duty of a common carrier as applicable to the evidence affecting defendant Lott. (6) The court rightly excluded the testimony of witness Taylor as an attempt to impeach witness Hill on a collateral issue. People v. Brooks, 131 N.Y. 321, 30 N.E. 189; Fearey v. O'Neill, 149 Mo. 467 (2nd Syl.); Roe v. Bank of Versailles, 167 Mo. 409. (7) The only material fact to which Hill testified was corroborated by the motorman of defendant street railway company, and was undisputed at the trial. (8) Evidence that the motorman was an old experienced motorman was not admissible, as character was not an issue. Gordon v. Miller, 111 Mo.App. 342; Grocer Co. v. Tagart, 78 Mo.App. 166. (9) The verdict is not excessive.

OPINION

JOHNSON, J.

Plaintiff was a passenger of defendant Lott who operated an automobile for hire and was injured in a collision between that vehicle and an electric car operated by the defendant Street Railway Company on the Troost avenue line of its street railway system in Kansas City. Both Lott and the Street Railway Company were made defendants on the theory that negligence of each concurred in causing the injury. The petition alleges that "said defendant Frank E. Lott . . . was a common carrier of passengers for hire, operating a line of automobiles and particularly the automobile hereinafter specifically mentioned . . . and while said automobile carrying plaintiff and other passengers was moving north on Walnut street and approaching Tenth street, the employee of defendant operating said automobile carelessly and negligently permitted the same to be struck and overturned by one of the street cars then and there being operated by the defendant Street Railway Company."

The averments of negligence on the part of the Street Railway Company appear in the following extract from the petition: "That the motorman in charge of said street car of defendant Metropolitan Street Railway Company was negligent in this; that he negligently failed and omitted to sound any signal or warning while approaching said Walnut street or while crossing the same. That he negligently started said street car after momentarily stopping the same at or about the time he entered upon said crossing without sounding any bell or other signal. That he negligently started said street car after momentarily stopping the same at or about the time he entered upon said crossing without giving reasonable or sufficient opportunity for vehicles or persons who might attempt to cross the track ahead of said car in safety. That he negligently failed to keep a vigilant and reasonable lookout ahead of said car while starting to cross and while crossing said street. That he negligently failed to keep said street car under reasonable control while crossing said Walnut street so as to be able to stop said car and avoid colliding with vehicles which might be attempting to pass along said Walnut street and across said track ahead of said car. That he could have stopped said car or slacked its speed consistent with the safety of the passengers on said car, in time to avoid a collision with the said automobile, after he saw, or in the exercise of reasonable care, could have seen said automobile approaching and starting to cross the track on which said street car was moving, and after he realized, or in the exercise of reasonable care should have realized that a collision would result if he did not stop or slacken the speed of said street car, and that he negligently failed to do so."

Defendant Lott urges an objection made at the time of the trial that the petition does not state a cause of action against him. The theory of the objection is that the defendants are sued as joint tortfeasors, but the facts alleged conclusively negative the charge that the injury was the result of any joint action. This theory is founded on a misconception of the nature of the pleaded cause. Each defendant is charged with negligence that became an active agency in the production of the injury. It is true each defendant acted independently of the other, so far as purpose or intention was concerned. Necessarily the doer of a negligent deed must act independently in that sense, but it could be true and the petition alleges the fact to be that while the negligence of each defendant was a proximate cause of the injury, each of said negligent acts concurred and co-operated with the other in the production of a single injurious result. The cause of action inuring to plaintiff from such result was joint and several. He might sue one or both wrongdoers and his allegation that their negligence was concurrent would not preclude his recovery against either defendant on proof that the negligence of that defendant alone caused the injury. There is an essential difference in principle between torts committed in pursuance of a conspiracy, understanding, or mutual purpose among the tortfeasors and torts not so characterized which commingle and co-operate in the production of a single result. The court properly overruled the objection to the petition.

The injury occurred in the morning of September 2, 1905, at the intersection of Tenth and Walnut streets in Kansas City. Defendant operates a double track street railway on Walnut street which runs east and west and a single track line on Tenth street. Plaintiff lived in Minneapolis, Minn., and together with members of his family, visited Kansas City and, during the visit, took a pleasure ride in a "sight seeing" automobile operated by defendant Lott. While the automobile was...