Neal v. Kansas City Public Service Co.

• Citation: 184 S.W.2d 441,353 Mo. 779
• Decision Date: 04 December 1944
• Docket Number: 39083
• Parties: Delbert Neal v. Kansas City Public Service Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

184 S.W.2d 441

353 Mo. 779

Delbert Neal v. Kansas City Public Service Company, a Corporation, Appellant

No. 39083

Supreme Court of Missouri

December 4, 1944

Rehearing Denied January 2, 1945.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Charles L. Carr and Harding, Murphy & Tucker for appellant.

(1) The court erred in refusing to give defendant's Instruction A in the nature of a demurrer to the evidence at the close of plaintiff's case. Plaintiff's case was not submissible to the jury and there was no question of fact for the jury to pass on. The court also erred in refusing to give defendant's Instruction B in the nature of a demurrer to the evidence at the close of all the evidence. No submissible case was made. Hayes v. Kresge, 100 S.W.2d l.c. 328; Pedigo v. Roseberry, 102 S.W.2d l.c. 608; Pietraschke v. Pollnow, 147 S.W.2d l.c. 170; Strother v. Chicago, etc., 188 S.W. 1102; Rafferty v. Kansas City Gas Co., 169 S.W.2d l.c 109; Kelly v. Kansas City B. & L. Assn., 81 S.W.2d l.c. 445; Luettecke v. St. Louis, 140 S.W.2d 45; Wurst v. Am. Car, etc., 103 S.W.2d 6; 17 C.J., p. 754, sec. 88; Weber v. Milling Co. (Mo.), 242 S.W. 985; Graefe v. Transit Co., 224 Mo. 232; Coin v. Lounge Co., 222 Mo. 488; Fuchs v. St. Louis, 133 Mo. 168; Fink v. Ry., 161 Mo.App. 314; Wills v. Co., 134 S.W.2d 125; McKeighan v. Kline, 98 S.W.2d 555; Fryer v. Ry., 63 S.W.2d 47; State v. Shain, 116 S.W.2d 99; Warner v. Ry., 178 Mo. 125; Young v. Ry., 113 Mo.App. 636; Hamilton v. Ry. (Mo.), 300 S.W. 787; Bauer v. Wood, 154 S.W.2d 356; Smith v. Ry., 37 Mo. 287; Fritz v. Ry., 243 Mo. 62; Watkins v. Bird, etc., 16 S.W.2d 38; Bates v. Brown, 116 S.W.2d 31. (2) The court erred in giving plaintiff's Instruction 2. There was substantial evidence that, after the operator saw or by the exercise of ordinary care could have seen the ambulance approaching Main street, the street car could not have been stopped before entering the intersection and keep said intersection clear. There was no evidence to the contrary and yet the jury was directed that, if they believed that the operator was negligent in failing to stop the car (within an impossible space) his failure was negligent. Dey v. Ry., 140 Mo.App. 461; Riggs v. Ry., 220 S.W. 697. (3) The court erred by giving plaintiff's Instruction 3 over the objections of defendant. The burden of proof that plaintiff's skull injury was caused by the collision rested upon the plaintiff. This plaintiff failed to do but seeks to escape through an instruction, giving the jury the right to couple the crime with the accident and guess at negligence and award damages even though the cause therefor was not proven. Watkins v. Bird, etc., 16 S.W.2d 38; McDaniel v. Ry., 92 S.W.2d 118; Battles v. Ry., 178 Mo.App. 596; Nevinger v. Haun, 197 Mo.App. 416; 62 C.J., sec. 45, p. 1131; Felber v. Co., 100 S.W.2d 494; Byars v. Co., 66 S.W.2d 894; Pape v. Co., 150 S.W.2d 569; Wiesman v. Arrow Co., 176 S.W.2d 37; 17 C.J., pp. 720, 725, secs. 59, 61; 25 C.J.S., p. 466, sec. 9; DeSalme v. Union Co., 102 S.W.2d 779; Lambert v. Drug Co., 238 Mo. 409. (4) The court erred by refusing to give defendant's instruction for nominal damages only. 17 C.J., pp. 720, 725, secs. 59, 61; 25 C.J.S., pp. 466, 469, secs. 9, 12; DeSalme v. Union Co., 102 S.W.2d 779; Lambert v. Drug Co., 238 Mo. l.c. 415. (5) All of plaintiff's Instructions 1, 2, 3, 4 and 5 were objected to by defendant. The giving of these instructions constituted error for the reason among other reasons assigned heretofore that no submissible case was made. This point is covered by arguments under various other points in this case. (6) Plaintiff's counsel made to the passions and prejudices of the jury. All of defendant's objections, protests and motions were improperly overruled by the court and the case went to the jury loaded with passion and prejudice. Eilers v. Ry., 200 Ill.App. 487; O'Hara v. Co. (Mo. App.), 197 S.W. 163; Monroe v. Ry., 249 S.W. 644; Stroud v. Doe, 272 S.W. 1080; Haake v. Co., 168 Mo.App. 177; Smith v. Ry., 31 S.W.2d l.c. 107; Villinger v. Nighthawk, 104 S.W.2d l.c. 742; Norris v. St. Louis Ry., 239 Mo. 695; Foster v. Kurn, 133 S.W.2d 1114; N.Y. Cent. Ry. v. Johnson, 49 S.Ct. 300, 279 U.S. 310; Carpenter v. Kurn, 136 S.W.2d 997; Amsinger v. Najim, 73 S.W.2d 214; Smith v. Ry., 31 S.W.2d 105; Nelson v. Co., 20 S.W.2d 906; Beck v. Quincy, 129 Mo.App. 7; Jackman v. Ry., 206 S.W. 244; Neff v. City of Cameron, 213 Mo. 350. (7) The court in overruling defendant's motion to strike out a part of the testimony of witness Baker. This witness had testified that he saw plaintiff shoot out of the ambulance like a cannonball. On cross-examination he finally admitted that he could not swear that he saw it.

Will H. Hargus, J. C. Hargus, Ralph P. Johnson, Bryant Johnson and Len L. Balke for respondent.

(1) The court did not err in refusing to give defendant's instructions A. and B. in the nature of a demurrer to the evidence since the evidence was adequate to support submission of the case under plaintiff's theory. Berry v. Kansas City Pub. Serv. Co., 121 S.W.2d 825; Herod v. St. Louis-S.F. Ry. Co., 299 S.W. 74; 25 C.J.S., p. 496; Scheurer v. Banner Rubber Co., 227 Mo. 347; Sparks v. Auslander, 182 S.W.2d 167. (2) The court did not err in giving plaintiff's Instruction 2. State ex rel. Kansas City Pub. Serv. Co. v. Shain, 165 S.W.2d 428; McEntee v. Kansas City Pub. Serv. Co., 159 S.W.2d 336. (3) The court did not err in giving plaintiff's Instruction 3. Gorman v. Franklin, 117 S.W.2d 289; State ex rel. Alton R. Co. v. Shain, 143 S.W.2d 233; Bowman v. Standard Oil Co. of Indiana, 169 S.W.2d 384. (4) It was not error to refuse defendant's Instruction C as under the evidence plaintiff was not limited to nominal damages. This point is covered by citations and arguments under Point (1). (5) The case was fairly tried and properly ruled by the court and the verdict in no way shows passion or prejudice. Argument of plaintiff's counsel was not error. Paul v. Dunham, 214 S.W. 263; Mauck v. Atchison, T. & S.F. Ry. Co., 154 S.W.2d 73; State v. Punshon, 133 Mo. 44; State v. Creston Sublet, 191 Mo. 163; Levels v. St. Louis & Hannibal Ry. Co., 196 Mo. 606; Jones v. Kansas City, Mo., 76 S.W.2d 340; Huhn v. Ruprecht, 2 S.W.2d 760; Ogilvie v. Kansas City Pub. Serv. Co., 27 S.W.2d 733; Hart v. Kansas City Pub. Serv. Co., 142 S.W.2d 348; Crews v. Kansas City Pub. Serv. Co., 111 S.W.2d 54; Grubbs v. Kansas City Pub. Serv. Co., 45 S.W.2d 71; Gossett v. Kansas City Pub. Serv. Co., 17 S.W.2d 372; Sparks v. Auslander, 182 S.W.2d 167; Raymore v. Kansas City Pub. Serv. Co., 141 S.W.2d 103. (6) Argument of plaintiff's counsel was "invited" by defendant's counsel. Howard v. Thompson, 157 S.W.2d 780; Smith v. Producers Cold Storage Co., 128 S.W.2d 299; Miller v. Mutual Life Ins. Co. of New York, 79 S.W.2d 750. (7) Where this record shows no exception to the trial court's ruling or to the trial court's failure to rule on an objection, the point has not been saved for this court. Rockenstein v. Rogers, 31 S.W.2d 792; Christie v. Randol, 38 S.W.2d 538; Dyer v. Brown, 25 S.W.2d 551; State ex rel. State Highway Comm. of Mo. v. Caruthers, 51 S.W.2d 126; Stokes v. Godefroy Mfg. Co., 85 S.W.2d 434; Myrick v. Hamilton et al., 24 S.W.2d 165; Green v. Terminal Railroad Assn. of St. Louis, 211 Mo. 18. (8) It was not error to refuse defendant's motion to strike out a part of the testimony of plaintiff's witness Baker. Also defendant has abandoned this point by failure to brief it sufficiently. Kansas City v. Jones Store Co., 325 Mo. 226, 28 S.W.2d 1008; Miltenberger v. Hullett, 188 Mo.App. 273, 175 S.W. 111; Griswold v. Haas, 277 Mo. 255, 210 S.W. 356; Citizens Bank of Senath v. Johnson, 112 S.W.2d 916; Meyers v. Drake, 24 S.W.2d 116, 324 Mo. 612; Simmons v. Wells, 20 S.W.2d 659; Wolfskill v. American Union Life Ins. Co., 172 S.W.2d 471; O'Connell v. Smith, 131 S.W.2d 730.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for damages for personal injuries sustained on account of alleged negligence of defendant. The jury returned a verdict for plaintiff for $ 15,000, upon which judgment was entered, and defendant appealed.

Respondent has filed a motion to dismiss the appeal on account of alleged violation of Rule 15 of this court. The motion is not without some substantial merit, but the dismissal of an appeal is a drastic penalty, unless fully warranted by the violations complained of. We think the ends of justice will be best served by ruling the appeal on its merits. The motion is overruled.

Error is assigned (1) on the court's action in refusing a demurrer to the evidence at the close of plaintiff's case and at the close of the whole case; (2) on the giving and refusal of instructions; (3) on the overruling of objections to alleged improper and prejudicial argument; and (4) on the court's refusal to strike out certain evidence.

On August 17, 1941, plaintiff, a filling station employee who had been injured in a holdup, was being rushed to the General Hospital in Kansas City for examination and treatment, when the ambulance in which he was riding was struck by one of defendant's street cars at a street intersection. Plaintiff was thrown out of the ambulance onto the street. When he later reached the hospital, he had a skull fracture and other injuries. Whether the injuries for which recovery is sought were received in the collision or in the holdup and whether certain disabilities existing at the time of the trial resulted from injuries received in the collision, or from subsequent disease, were major issues in the trial of the cause.

We consider first the trial court's refusal of defendant's demurrers to the evidence. A statement of the evidence most favorable to plaintiff is...