Millhouser v. Kansas City Public Service Co.

• Citation: 55 S.W.2d 673,331 Mo. 933
• Parties: Edward O. Millhouser v. Kansas City Public Service Company, Appellant
• Decision Date: 20 December 1932
• Court: United States State Supreme Court of Missouri

55 S.W.2d 673

331 Mo. 933

Edward O. Millhouser v. Kansas City Public Service Company, Appellant

Supreme Court of Missouri

December 20, 1932

Rehearing Overruled December 31, 1932.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed and remanded.

Charles L. Carr, E. E. Ball and Virgil Yates for appellant.

The court erred in sustaining plaintiff's motion for a new trial on the ground that it erred in giving Instructions A and B requested by the defendant. Plaintiff's Instruction 2 contained the same alleged error complained of in defendant's Instructions A and B. A litigant cannot complain of a charge in an instruction to the same effect as one requested by himself. McGonigle v. Dougherty, 71 Mo. 259; Smith v. Culligan, 74 Mo. 387; Reilly v. H. St. J. Ry. Co., 94 Mo. 600; Thorpe v. Ry Co., 89 Mo. 650; Holmes v. Braidwood, 82 Mo. 610; Whitmore v. Supreme Lodge, 100 Mo. 36; Phelps v. Salisbury, 161 Mo. 1; Kinlen v. Met. St. Ry. Co., 216 Mo. 145; Olferman v. Ry. Co., 125 Mo. 408; Clippard v. Transit Co., 202 Mo. 438; Ellis v. Met. St. Ry. Co., 234 Mo. 657; Transbarger v. Railroad Co., 250 Mo. 46, 156 S.W. 694; Jaggard v. Met. St. Ry. Co., 264 Mo. 142, 174 S.W. 371; Pope v. Mo. Pac. Ry. Co., 175 S.W. 955; Thummel v. Surplus, 171 S.W. 929; Spencer v. Q. O. & K. C. Ry. Co., 317 Mo. 492, 297 S.W. 353; Landau v. Travelers Ins. Co., 315 Mo. 760, 287 S.W. 346; Meyers v. Drake, 324 Mo. 612, 24 S.W.2d 116; Kincaid v. Birt, 29 S.W.2d 97. Gary v. Averill, 12 S.W.2d 747; Parker v. St. Louis-S. F. Ry. Co., 41 S.W.2d 386; White v. Railroad Co., 250 Mo. 476.

Frank Benanti and Julius C. Shapiro for respondent.

(1) The court properly granted a new trial by reason of the giving of defendant's Instructions A and B. They were clearly erroneous, misleading, ignored, in conflict with, and removed entirely from the consideration of the jury, the elements of plaintiff's case, under the humanitarian doctrine. The isolation of the one fact alone in each of defendant's said instructions, to the exclusion of the other evidence undoubtedly and improperly influenced their verdict. Wise v. Transit Co., 198 Mo. 560, 95 S.W. 902; Felver v. Railroad, 216 Mo. 210, 115 S.W. 980; Beave v. Transit Co., 212 Mo. 355, 111 S.W. 52; Twinbow v. Dunham, 272 Mo. 65, 197 S.W. 103; Bethurkas v. Ry. Co., 249 S.W. 439; Crossin v. Chicago G. W. Ry. Co., 180 S.W. 454; Wentz v. Railroad Co., 259 Mo. 478, 168 S.W. 1174; Shumate v. Wells, 9 S.W.2d 634; Peppers v. St. Louis, etc., Railroad Co., 295 S.W. 760; Mauthe v. Breckenridge, 284 S.W. 145; Causey v. Wittig, 11 S.W.2d 15; Silliman v. Munger Laundry Co., 44 S.W.2d 163; Crockett v. K. C. Rys. Co., 243 S.W. 906; Murphy v. Wabash Railroad Co., 228 Mo. 56, 128 S.W. 481; Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Boland v. St. Louis, etc., Ry. Co., 284 S.W. 145; Smith v. St. Louis, etc., Ry. Co., 9 S.W.2d 939; Farrar v. Met. St. Ry. Co., 349 Mo. 222, 155 S.W. 439; Spindler v. Wells, 276 S.W. 387; Messer v. Gentry, 290 S.W. 1016. (2) Giving of Instruction D also justified the court's action in granting a new trial. This instruction is erroneous, because it imposes upon plaintiff a higher degree of proof than required in civil actions; and improperly placed the burden of proof upon plaintiff in connection with the allegations of defendant's answer -- affirmative defenses -- and instructions predicated thereupon. Krause v. Spurgeon, 256 S.W. 1074; Gillette v. Laederich, 242 S.W. 113; Stolovey v. Fleming, 8 S.W.2d 832; Charr v. McLoon, 304 Mo. 249, 263 S.W. 174; Barr v. Mo. Pac. Railroad Co., 37 S.W.2d 930; Tappmeyer v. Ryckoff, 45 S.W.2d 890; Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 153; McCloskey v. Koplar, 46 S.W.2d 563.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This is an appeal by defendant, a street car company, in a personal injury case from an order of the trial court sustaining plaintiff's motion for new trial on the ground of having given erroneous instructions to the jury on behalf of the defendant. The plaintiff charges negligence, in addition to other grounds, in violating what is generally termed the humanitarian or last chance rule, which requires anyone operating a dangerous instrumentality, such as a street car, to use a high degree of care, with all the means at hand, to avoid striking and injuring persons who are in or going into peril, after such persons are, or by using due care would be seen to be in such peril by those operating the dangerous instrumentality. The place of the accident in question was at the intersection of Sixth Street, a wide east and west thoroughfare, and Wyandotte Street, running north and south, along which defendant operated a street car line. The offending street car was not one of defendant's cars, but was an interurban car operating over defendant's track. It is conceded, however, that defendant is liable the same as for its own cars. Plaintiff was riding as a passenger in an automobile driven by another party, going east on Sixth Street, and collided with the street car going south on Wyandotte Street. The defendant denied negligence on the part of the operators of the street car and charged plaintiff and his driver with negligence in driving the automobile on the north or wrong side of the center of the street, in violation of a city ordinance and of the rules of the road; also that the driver of the automobile was driving same while in an intoxicated condition, in violation of an ordinance of the city, and thereby caused the automobile to collide with the street car.

As the questions presented here are within narrow limits, it is not necessary to state the facts in detail or the evidence produced by the respective parties. The points mostly contested were whether the driver of the automobile was in an intoxicated condition at the time and whether he was driving the automobile on the left of the center of Sixth Street in attempting to cross Wyandotte Street. It is practically conceded that the evidence is such that the jury might well have found either way on these disputed facts, but owing to the narrow issues on which the case was submitted, these questions are of little, if any, importance. The defendant does not seriously controvert, and we think the evidence, when taken most favorable to plaintiff, makes a submissible case on the humanitarian or last chance doctrine. The case was so submitted on plaintiff's part, but the jury returned a verdict for defendant. Thereupon the trial court sustained plaintiff's motion for a new trial on the ground that the court had erred in giving on defendant's behalf two erroneous and misleading instructions. The defendant's chief contention is that even if defendant's instructions are erroneous, plaintiff is in no position to complain because an instruction given for him contains a like error.

Let us consider these matters. Plaintiff's principal instruction, which is not criticised, after requiring a finding for plaintiff on formal and undisputed facts, proceeds (omitting some of the if sos and if you so find):

"And if you further believe and find from the evidence that the motorman operating said interurban car saw, or by the exercise of ordinary care could have seen, the automobile in which plaintiff was riding, approaching, entering, and in a position of imminent peril and danger, near or on said tracks where it would be struck by said street car if said street car continued on its course, and saw, or by the exercise of ordinary care could have seen, that plaintiff was in such peril and oblivious thereto, or unable to extricate himself therefrom, in time thereafter by the exercise of ordinary care on the part of the said operator of said street car, with the appliances at hand, and with reasonable safety to the street car and persons thereon, to have stopped said street car, or to have slackened the speed thereof, and thereby have avoided the collision, and if you further find that said motorman carelessly and negligently failed to stop said street car, or to slacken the speed thereof, and the injuries to plaintiff were directly caused by such failure of said motorman in the foregoing respects, if you so find he was careless and negligent in said respects, then under the law your verdict will be in favor of the plaintiff and against the defendant."

It may be here said that there is evidence that the automobile in which plaintiff was riding was compelled to stop, or nearly so, on the street car track by reason of another automobile cutting in ahead of it. This instruction sets forth the only theory authorizing a verdict for plaintiff.

One of the instructions which the court then gave for defendant, and for error in so doing granted plaintiff a new trial, is to this effect:

"The court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in evidence the driver of the automobile in which plaintiff was so riding was negligently and carelessly driving the same in an intoxicated condition; and if you further find and believe from the evidence that the collision between the street car mentioned in evidence and said automobile was caused solely by the negligence of the driver of said automobile in driving said automobile while in an intoxicated condition, if you find he was in an intoxicated condition, then plaintiff cannot recover and your verdict must be for the defendant."

It is clear, we think, that under this record the giving of this instruction was erroneous, and defendant does not seriously contend otherwise. There was nothing for the jury to consider in this case except whether defendant was negligent under the humanitarian doctrine, as stated in plaintiff's instruction. Under that instruction, it was wholly immaterial whether...