Meade v. Kansas City Public Service Co.

• Decision Date: 14 July 1952
• Docket Number: No. 42789,No. 1,42789,1
• Citation: 250 S.W.2d 513
• Parties: MEADE v. KANSAS CITY PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 513

250 S.W.2d 513

MEADE v. KANSAS CITY PUBLIC SERVICE CO.

No. 42789.

Supreme Court of Missouri, Division No. 1.

July 14, 1952.

Charles L. Carr, Kansas City, S. David Trusty, Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for appellant.

Clay C. Rogers, Lyman Field, Rogers, Field & Gentry, Kansas City, for respondent.

VAN OSDOL, Commissioner.

In this action for personal injuries sustained by plaintiff in a collision between defendant's bus on which plaintiff was riding as a passenger and defendant's streetcar at the intersection of Nineteenth Street and Grand Avenue in Kansas City plaintiff had verdict and judgment for $12,500 and defendant has appealed.

Defendant-appellant contends that Instruction No. 1 submitting plaintiff's case to the jury was erroneous; and that the trial court erred in the admission of evidence. Defendant-appellant further contends the verdict was excessive, and evidenced passion and prejudice on the part of the jury.

It will be unnecessary to make a statement of the circumstances of the collision, except to say the defendant's bus on which plaintiff was riding was forcibly struck by defendant's streetcar and plaintiff was injured.

Instruction No. 1, given by the trial court at plaintiff's instance, was as follows,

'The court instructs the juty that when the plaintiff * * * became a passenger upon the bus of the defendant * * *, then, under the law, it was the duty of the defendant * * * to exercise the highest degree of care in everything calculated to carry her safely, and in so doing the defendant was bound to use the utmost care and skill in the operation of its busses and street cars, and is liable and responsible for the slightest negligence, if any, which directly caused injuries, if any, to the plaintiff.

'Therefore, you are instructed that from the fact a collision occurred between the bus on which the plaintiff * * * was riding as a passenger, and a street car operated and controlled by the defendant * * * and from the fact that such a collision was an occurrence unusual and out of the ordinary course of events, then the jury may infer that the collision was caused by the failure of the defendant * * * to use and exercise the highest degree of care in operating its said bus and street car, and if you find and believe from all the evidence that said defendant did fail to use the highest degree of care in operating said bus and street car, then the defendant * * * was negligent, and if you find that such negligence of defendant * * *, if any, directly caused plaintiff to be injured, then your verdict should be in favor of the plaintiff.'

Defendant-appellant contends that Instruction No. 1 did not submit but assumed the ultimate fact of plaintiff's injury, which fact is one essential to recovery for negligence; and that the instruction did not submit but assumed the collision of the vehicles, an unusual occurrence, the basis of plaintiff's res ipsa loquitur submission. Defendant-appellant moreover insists the instruction erroneously defined the degree of care incumbent upon defendant, a carrier of passengers for hire, by the use of the unqualified language, 'utmost care and skill,' and in advising the jury the defendant was responsible for 'the slightest negligence,' citing Magrane v. St. Louis & S. R. Co., 183 Mo. 119, 81 S.W. 1158; Rothweiler v. St. Louis Public Service Co., 361 Mo. 259, 234 S.W.2d 552; and Murray v. De Luxe Motor Stages of Illinois, Mo.App., 133 S.W.2d 1074.

Although defendant by its answer put in issue the facts pleaded and essential to a recovery by plaintiff, there was no real or serious dispute upon the ultimate and essential factual issues in the trial of the instant case. The real issue was the amount of the recovery, that is, the amount which would reasonably and justly compensate plaintiff for her injuries. The reading of the record discloses that it was conceded defendant's vehicles collided, and the verity of an inference of some kind of negligence of the defendant which the jury was authorized to draw from the collision, an unusual occurrence, was treated as if conceded. Defendant introduced no evidence tending to refute the permissible inference of defendant's negligence or to show the casualty was due to something beyond defendant's control. Defendant's counsel admitted in defendant's opening statement to the jury that plaintiff was a passenger on defendant's bus; that an accident occurred; and that plaintiff sustained 'some injuries.' Defendant's counsel made a formal admission during the trial that plaintiff was a passenger on defendant's bus 'when it was run into * * * by a street car also owned and operated' by defendant. Defendant's counsel in argument expressed regret that the collision had occurred; stated that somebody made a mistake; and told the jury that 'certainly' plaintiff 'is entitled to be compensated.'

Now assuming, without deciding, there were errors in plaintiff's Instruction No. 1, such errors could have been material or prejudicial only upon the jury's consideration of the issue of liability; and liability, as stated, was in fact or in effect conceded. So defendant could not have been prejudiced by error in instructions submitting the issue of liability, because the jury's verdict was for the right party. Magrane v. St. Louis & S. R. Co., supra; Hampe v. Versen, Mo.App., 32 S.W.2d 797. The appellate court may not reverse a judgment except upon error materially affecting the merits of the action. Section 512.160, subd. 2, RSMo 1949, V.A.M.S.

Here it may be further said there is an exception to the rule that, in a verdict-directing instruction, all factual elements technically necessary or essential to a verdict must be submitted in the instruction for the consideration of the jury. Where, by admissions in the pleadings or admissions in the trial of a cause, or by evidence which corroborates the evidence of the opposing party, or where by examination of witnesses it is unmistakably apparent that certain facts are conceded, then, of course, such facts are no longer at issue and should not be required to be submitted in an instruction. State ex rel. Fourcade v. Shain, 342 Mo. 1190, 119 S.W.2d 788, and cases therein cited; particularly Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583, in its application to the instant contention. See also Blew v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 245 S.W.2d 31.

The contention of defendant-appellant relating to error in the admission of evidence is a more serious one, because the evidence introduced over defendant's objection was such as might ordinarily have had a prejudicial effect in the trial of the issue of damages. (Plaintiff, twelve years old when injured, was confined to her father's home for almost a year, and her father employed a teacher to come to the home and 'tutor' plaintiff in studies plaintiff would have been taught at school had she sustained no injury.) Plaintiff's father, a witness for plaintiff, was asked by plaintiff's counsel, 'And how many are there in your family?' Defendant's counsel objected on the ground of immateriality, which objection was overruled; and the witness answered, 'I have eight children, five boys and three girls.'

Since the case of Dayharsh v. Hannibal & St. J. R. Co., 103 Mo. 570, 15 S.W. 554, it has been generally said to be improper to inquire of a plaintiff relating to the number of persons comprising his family. State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison, 287 Mo. 139, 229 S.W. 1059; Holtz v. Daniel Hamm Drayage Co., 357 Mo. 538, 209 S.W.2d 883; Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79. This is on the theory that such an inquiry is ordinarily made only for the purpose of appealing to the sympathy of the jury. It has also been held that, since such an inquiry is usually incompetent for any purpose, a general objection is sufficient. State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison, supra.

In these cases the evidence held to have been erroneously admitted was evidence showing the number of members of the families of the respective plaintiffs. However, we think such an interrogation of the father of plaintiff in the instant case was irrelevant and erroneous quite as if the case were one in which the father was plaintiff. The question was no doubt...