Montague v. Missouri & Kansas Interurban Railway Company

• Citation: 264 S.W. 813,305 Mo. 269
• Decision Date: 27 August 1924
• Docket Number: 24012
• Parties: WILLIAM A. MONTAGUE et al. v. MISSOURI & KANSAS INTERURBAN RAILWAY COMPANY et al., Appellants
• Court: United States State Supreme Court of Missouri

264 S.W. 813

305 Mo. 269

WILLIAM A. MONTAGUE et al. v. MISSOURI & KANSAS INTERURBAN RAILWAY COMPANY et al., Appellants

No. 24012

Supreme Court of Missouri

August 27, 1924

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

James A. Reed and James E. Taylor for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence at the close of the testimony. (a) No cause of action was established, under the first assignment of error founded on excessive speed. Long Island Company v Darnell, 221 F. 196. (b) No cause of action was established under the fourth assignment of negligence founded on the humanitarian rule. Sites v. Knotts, 197 Mo. 712; Guyer v. Railroad, 174 Mo. 344; Lackey v. Railways, 288 Mo. 143; Rublic v. Sandler, 219 S.W. 406; Haines v. Railways, 203 S.W. 632; Stark v. Bingaman, 223 S.W. 946; Allbright v. Joplin Oil Co., 229 S.W. 829. (2) The court erred in giving plaintiff's Instruction 2 over the objection of defendant. (a) Because upon the evidence no case is made under the humanitarian rule. (b) Because the instruction is erroneous in form and omits elements necessary to a recovery under the humanitarian rule. Knapp v. Dunham, 195 S.W. 1063; Lackey v. Railways, 288 Mo. 143; Kamoss v. Railways, 202 S.W. 434; Draper v. Dunham, 239 S.W. 887; Keele v. Railways, 258 Mo. 79. (3) Under the evidence no cause of action was established upon the first assignment of negligence founded upon excessive speed, and it was therefore error to submit such assignment to the jury. (4) The entire record is insufficient to support a verdict in favor of plaintiffs. Guyer v. Railways, 174 Mo. 344; Sites v. Knotts, 197 Mo. 712; Knapp v. Dunham, 195 S.W. 1063; Lackey v. Railways, 288 Mo. 120. (5) Under the evidence the court erred in submitting to the jury both assignments of negligence, because each is contradictory to and destructive of the other. DeRousse v. Railway, 198 Mo.App. 307; Green v. Railway, 192 Mo. 143. (6) The verdict is excessive. Railway v. Brown, 26 Kan. 458; McLaughlin v. Railway, 73 Kan. 250.

Kelly, Buchholz, Kimbrell & O'Donnell and Lyon & Lyon for respondents.

(1) The court did not err in overruling defendants' demurrer to the evidence at the close of the testimony. Montague v. Interurban Railway Co., 193 S.W. 935; Brandt v. United Railways Co., 153 Mo.App. 16; Sluder v. Transit Co., 189 Mo. 138; Rush v. Street Railway Co., 157 Mo.App. 504; Bradshaw v. Payne, 111 Kan. 475; Harrington v. Railways Co., 273 Mo. 431. (2) The court did not err in giving plaintiffs' Instruction 2. Simpson v. Wells, 237 S.W. 520; Bybee v. Dunham, 198 S.W. 190; Heryford v. Spitcaufsky, 200 S.W. 123; King v. Railways Co., 204 S.W. 1129; Taylor v. Street Railway Co., 256 Mo. 191; Greer v. Creamery Co., 240 S.W. 833; Volgamott v. Payne, 245 S.W. 592; Lange v. Anheuser-Busch, 241 S.W. 454; Hornbuckle v. McCarty, 243 S.W. 327; Ellis v. Street Railway, 234 Mo. 657; Swinehart v. Ry. Co., 233 S.W. 59. (3) The record in this case is sufficient to support the judgment. Montague v. Interurban Railway Co., 193 S.W. 935. (4) The court did not err in submitting to the jury negligence under the humanitarian doctrine and excessive speed. DeRousse v. Railway, 198 Mo.App. 307; Taylor v. Railway Co., 256 Mo. 191. (5) The verdict is not excessive. Gas Co. v. Carter, 65 Kan. 569; K. P. Railway Co. v. Cutter, 19 Kan. 83; Railway Co. v. Sternberger, 8 Kan.App. 131; Railway Co. v. Cross, 58 Kan. 424; Railway Co. v. Fejardo, 74 Kan. 314; Chandler v. Gloyd, 217 Mo. 394; Lumber Co. v. Stoddard Co., 131 Mo.App. 15; Bradshaw v. Payne, 111 Kan. 475; Smith v. Southern Railroad Co., 213 S.W. 481; Philadelphia Railroad Co. v. McKibben, 259 F. 476; Melish v. Railway Co., 178 N.Y.S. 228; Ill. Cen. Railroad Co. v. Johnston, 205 Ala. 10; Standard Oil Co. v. Titus, 187 Ky. 560; Roy v. Kansas City, 204 Mo.App. 332; Roeder v. Erie Railroad Co., 164 N.Y.S. 167; P. Lorillard Co. v. Clay, 127 Va. 734; McCreedy v. Fournier, 113 Wash. 351; Hood v. American Refrigerator Fruit Co., 106 Kan. 76; Railway Co. v. Prince, 101 Ark. 315; Redfield v. Railway, 110 Cal. 277; Froeming v. Railway, 171 Cal. 401; Boyd v. Railway, 249 Mo. 110; Standard Oil Co. v. Parkinson, 152 F. 681; Rautman v. Chicago Traction Co., 156 Ill.App. 457; Dufleman v. Railroad Co., 130 Ill.App. 105; Union Pac. Railroad Co. v. Dundon, 37 Kan. 1; Valente v. Railway, 158 Cal. 412; Craig v. Railroad Co., 97 Neb. 586.

OPINION

Graves, J.

Predicated upon Kansas statutes, plaintiffs, who are the husband and the three children, seek to recover from the defendants the sum of $ 10,000, for the negligent killing of Alice Montague, the wife and mother. Mrs. Alice Montague was killed by reason of a collision between an automobile in which she was a passenger for hire, and an interurban car owned and run by the Missouri & Kansas Interurban Railway Company. The petition charges that "defendants E. K. Brown and Charles F. Dinklage were common carriers of passengers for hire, doing business under the name of Baltimore Automobile Livery Company" and the defendant Missouri & Kansas Interurban Railway Company operated a system of street railway and interurban railways between Kansas City, Missouri, and Olathe, Kansas, which railroad crossed diagonally Forty-third Street in the City of Rosedale, Kansas, at which intersection the automobile was struck by the interurban car, as suggested above.

The petition charges that the individual defendants operated a line of automobiles in Kansas City, Missouri, and in the State of Kansas and Missouri, and particularly operated the automobile in which Mrs. Montague was being carried from the Elm Ridge Golf Club in Johnson County, Kansas, to Kansas City, Missouri, where deceased resided with her family, consisting of herself and the plaintiffs herein. The accident is charged to have occurred in August 16, 1914. General negligence is charged as against the individual defendants, their servants, agents and employees. As to the corporate defendant the plaintiffs charged four specific grounds of negligence as follows: (1) excessive speed under the common law, which law was alleged to be in force in Kansas, per force of a Kansas statute, duly pleaded; (2) ordinance negligence, in that it is charged that the corporate defendant ran its car in excess of the rate of speed limited by the ordinances of the city of Rosedale; (3) failure to sound a whistle as the car approached the crossing, and (4) that form of negligence designated in the books as the violation of the humanitarian rule. The plaintiffs abandoned the second and third grounds of negligence set out, supra, but submitted their case upon the first and fourth grounds, supra.

The answer of the corporate defendant (the only appealing defendant) is very short, and is as follows:

"Now comes defendant Missouri & Kansas Interurban Railway Company, and, separately answering, denies each and every allegation, matter and thing in said second amended petition contained.

"Further answering, said defendant states that the cause of action plaintiffs set forth in said second amended petition is wholly different from the cause of action set forth in the original petition filed herein by William A. Montague, one of said plaintiffs, and that the cause of action stated in second amended petition was not filed within the time required by the statutes of the State of Kansas, which said statutes are set forth in said second amended petition, on account whereof said plaintiffs are not entitled to maintain the same.

"Wherefore, defendant having fully answered, prays that it may go hence without day, and without cost."

Reply placed in issue all new matter in the answer. Upon trial before a jury the plaintiffs had a verdict for $ 10,000, upon which judgment was entered, and from this judgment the corporate defendant alone appeals.

I. The following constitute the assignment of errors in the record before us:

"1. The court erred in overruling defendant's demurrer to the evidence at the close of the testimony, (a) because no cause of action was established under the first assignment of negligence founded on excessive speed; (b) because no cause of action was established under plaintiffs' fourth assignment of negligence based on the humanitarian rule.

"2. The court erred in giving plaintiffs' Instruction No. 2, over the objection of defendant.

"3. The court erred in giving plaintiffs' Instruction No. 3, over the objection of defendant.

"4. The entire record is insufficient to support a verdict in favor of plaintiffs.

"5. Under the evidence the court erred in submitting both assignments of negligence, because the one is contradictory to and destructive of the other.

"6. The verdict is excessive."

The evidence will be left to the disposition of these several assignments of error. The refusal of the demurrer to the evidence will of necessity require a review of the facts in evidence.

Defendant offered no evidence, and asked no instructions save a demurrer to plaintiffs' evidence. This outlines the case.

II. As said, the demurrer to the evidence calls for a short statement of the salient facts. All these facts come from plaintiffs' side of the case, and in passing upon the sufficiency of that evidence they are entitled to have considered those portions of the evidence most favorable to them, if some portions of the evidence are more favorable than other portions. It frequently occurs that witnesses differ as to the speed of a car, or as to other facts tending to shows liability, but in determining the question as to whether or not the case of a plaintiff should be submitted to the jury, the court must take into consideration the most favorable testimony in behalf of such plaintiff. Thus, if one witness testifies to a...