Meeks v. Kansas City Public Service Co.

• Decision Date: 11 June 1934
• Docket Number: No. 18096.,18096.
• Parties: MEEKS v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

73 S.W.2d 337

MEEKS v. KANSAS CITY PUBLIC SERVICE CO.

No. 18096.

Kansas City Court of Appeals. Missouri.

June 11, 1934.

Rehearing Denied July 2, 1934.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

Action by Fredda Meeks against Kansas City Public Service Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Charles L. Carr and Hogsett, Smith, Murray & Trippe, all of Kansas City, for appellant.

Allan R. Browne, Benj. W. Grover, and Grover & Browne, all of Kansas City, for respondent.

SHAIN, Presiding Judge.

Oak street and Eighth street, mentioned herein, are intersecting public streets of Kansas City, Jackson county, Mo. Oak street runs north and south and Eighth street runs east and west. Old Oak street, north of Eighth street, has a roadway of 29½ feet up to Eighth street and from where old Oak street enters Eighth there is a jog of about 150 feet to the east to where what is known as new Oak street proceeds south from Eighth street.

The appellant herein, defendant below, owns and operates a line of street cars on Eighth street. As you approach Eighth street from the north, on what is called old Oak street, there is an upward grade. On the northwest corner of old Oak street and Eighth street there is a stop sign and it is the duty of travelers on old Oak street to stop before entering into Eighth street.

On May 6, 1931, at about 5 p. m., a collision occurred between an automobile being driven by respondent, plaintiff below, and a street car owned and operated by the appellant, defendant below. The collision occurred at or near the intersection of aforesaid old Oak street and Eighth street.

The respondent, hereinafter referred to as plaintiff, is in this action seeking to recover damages from appellant, hereinafter referred to as defendant, for injuries she alleges were the result of the aforesaid collision.

A trial was had by jury in the circuit court and the jury rendered a verdict in favor of the plaintiff in the sum of $2,500. Judgment for that amount was duly entered, and the defendant has appealed.

The issues in the case are made up by somewhat lengthy pleadings usual in personal injury suits based upon negligence. However, as the case was submitted alone on the Missouri last chance doctrine, we do not deem it necessary to encumber the opinion further with the pleadings.

The defendant assigns five errors with insufficient specifications and specifically presents under two heads, one (I) and three (III), in its points and authorities, all presentation of error shown by its brief to be claimed.

These specifications are as follows:

"Because plaintiff was guilty of contributory negligence as a matter of law, thus preventing the submission of the case to the jury on any ground of primary negligence, and the evidence does not justify the submission of the case on the humanitarian doctrine, the demurrers to the evidence should have been sustained; and plaintiff's instruction numbered 5 should have been given and defendant's instruction `A' should not have been given. (Assignments of error I to III, inclusive.)

"The trial court erred in overruling defendant's motion to discharge the jury because of plaintiff's weeping and display of emotion throughout the trial without justifiable cause, which actions on the part of the plaintiff resulted in an excessive verdict for the injuries in this case; and the court erred in not granting a new trial because of this excessive verdict. (Assignments of error IV and V)."

The humanitarian doctrine of Missouri has been so well defined by the courts of this state that extensive discussion of same here will serve no good purpose. Suffice it to say, that under the Missouri rule the word "humanitarian" has a very broad and comprehensive application.

Touching the issues presented in the case at bar, there is much evidence offered by the defendant that contradicts the evidence offered by plaintiff in support of her claim. This being so, it is well to here reiterate that in our review it becomes incumbent upon us to give full credence to all competent testimony and to give full benefit to plaintiff of any and all inferences that can he properly drawn from the testimony. With the above in mind, we quote from the record what we consider the most pertinent questions and answers bearing on the issue.

On direct examination of plaintiff, the following questions and answers appear:

"Q. And as you came up that hill from— on up old Oak Street toward Eighth Street about how fast were you traveling, Mrs. Meeks? A. As I came up the hill?

"Q. Yes. A. I wasn't traveling very fast, about ten miles.

"Q. About ten miles an hour? A. Yes.

"Q. And about how close was the right side of your automobile as you were coming up that hill, the right side, how close was that to the west curb of old Oak Street? A. Well, as I started up the hill I was pretty near in the center, but I pulled over and got around the cars parked on the hill and I was over pretty close to the curb when I made my turn.

"Q. Close to the west curb of old Oak Street, is that what you mean? A. Yes, sir.

"Q. And did you make the full, complete stop at the stop sign? A. I made my stop at the stop sign.

"Q. What did you do after you made your stop at the stop sign? A. I started the car up and made my turn. I held my hand out for my turn like this (indicating)."

Again, the following:

"Q. Now, when you first saw that street car you were—what did you do then, when you saw it say back there by that hotel? A. Well when I first saw the street car it was back up by the hotel and I started my car in low and made my turn, and as I made my turn—I had made my turn and was almost straight west and when the street car came down and just as it hit me I glanced back, it hit me and—oh, I don't know, it just—

"Q. (Interrupting) Well, I will ask you about that: Now, the first time you saw the street car after you started up from that stop sign how fast was the street car coming? A. It was coming fifteen or twenty miles."

And again:

"Q. What part of your automobile did the street car strike? A. It hit the back fender, it hit the—

"Q. (Interrupting) Which one please? A. The left back fender.

"Q. The left back fender? A. Yes.

"Q. And which way was your automobile faced at the time the street car struck it? A. My automobile was faced west.

"Q. Due west? A. Almost. I wasn't, you might say, sitting exactly straight up and down the street, but it was west, my car had turned and was to the west.

"Q. What part of your automobile was on the street car track, that is, over the tracks? A. The front wheel of my car was just over that track, over the north track.

"Q. There is some overhang of the street car, is there, over the track? A. Yes, sir— well, my front wheel was just—

"Q. (Interrupting) No, I said does the street car overhang the track? A. Oh, yes, yes, sir.

"Q. Did you hear any bell before the collision occurred?

"Mr. Trippe: Wait a minute.

"A. Not until just as they hit.

"Mr. Trippe: Wait a minute, I object to that question because it is wholly immaterial under her former testimony. She said she saw the street car coming.

"The Court: Yes, sustained.

"Mr. Browne: She said she saw it a block away.

"The Witness: I didn't watch it, though.

"The Court: She said she saw the street car.

"The Witness: I saw it, but didn't keep my eye on it until it hit me.

"Q. (Mr. Browne) It was back a block away when you saw it? A. Yes.

"Mr. Trippe: I object to that as leading and suggestive.

"Mr. Browne: All right.

"Q. (Mr. Browne) How far back was it when you first saw it? A. About 150 feet.

"Q. What did the street car do when it hit your left rear fender? A. It came on down over my running-board and over the left fender and the left wheel and smashed my left wheel down, bent the front fender forward and smashed the hood on my car.

"Mr. Trippe: I object to the damages to the car as wholly immaterial to any issues in this case. This is not a suit for property damage.

"Mr. Browne: I know, but it is evidence of where it hit and the position of the car at the time of the impact.

"The Court: Objection overruled. (To which action and ruling of the court the defendant then and there at the time duly excepted and still excepts.)

"Q. (Mr. Browne) The street car was going which direction? A. The street car was going west.

"Q. The same direction you were going? A. The same direction I was.

"Q. Did the street car drag you any after the impact? A. It drug my car at least twenty-five feet."

On cross-examination, the following:

"Q. (Mr. Trippe) I will make it plain to you: You got up to Oak Street, or you got up to Eighth Street rather and you say you stopped there at the stop sign? A. Yes, I stopped there.

"Q. Now, you looked back and saw the street car 150 feet away? A. Yes, up by the hotel.

"Q. Now, were you moving at that time? A. Not when I saw the street car.

"Q. Now, when you started up again where was the street car then? A. I didn't look to see where the street car was when I started up.

"Q. How long did you stand there? A. Just—

"Q. Just an instant, just a second? A. Just long enough to stop and start.

"Q. Just long enough to stop and start? A. I stopped, come to a complete stop, and started right on again.

"Q. Started right up again? A. I throwed up my hand to make the turn and looked back up the street and made my turn.

"Q. The street car was on the east side of old Oak Street at that time? A. It was there at the east side—

"Q. (Interrupting) Of new Oak, I should say? A. It was on the east side, just ready to cross.

"Q. Now, the fact of the matter is, when you looked back up there that street car was standing there by the hotel, wasn't it? A. It was there; it was standing or it was coming, I don't know which, but it was there."

Again on cross-examination:

"Q. Before you came down here? A. No, sir.

"Q. Now, then, at the time you saw this street car back, under your testimony,...