Paisley v. Kansas City Public Service Co.

• Decision Date: 06 July 1943
• Docket Number: 38471
• Parties: Charles G. Paisley v. Kansas City Public Service Company, Appellant
• Court: Missouri Supreme Court

173 S.W.2d 33

351 Mo. 468

Charles G. Paisley v. Kansas City Public Service Company, Appellant

No. 38471

Supreme Court of Missouri

July 6, 1943

Rehearing Denied July 20, 1943.

Appeal from Jackson Circuit Court; Hon. Daniel L. Brenner Special Judge.

Affirmed.

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

(1) The evidence shows plaintiff was guilty of contributory negligence as a matter of law, barring his right of recovery. Kalbfell v. Wells, 49 S.W.2d 247; Mundy v. St Louis-S.F. Ry. Co., 45 S.W.2d 941; Scott v. Kurn, 126 S.W.2d 185, 343 Mo. 1210; Nichols v. Chicago & A. R. Co., 250 S.W. 627; Freie v. St. Louis & S. F. Ry. Co., 241 S.W. 671; Hill v. Illinois Terminal Co., 100 S.W.2d 40; Keene v. Pac. Northwest Traction Co., 279 P. 756; Hartman v. Kansas City, L. & W. Ry. Co., 294 P. 913. (2) Any error in defendant's Instruction D because too general was invited by plaintiff. 1 Raymond, Missouri Instructions, sec. 207; Wallace v. St. Joseph Ry., L. H. & P. Co., 77 S.W.2d l. c. 1013, 336 Mo. 282; Meyers v. Drake, 24 S.W.2d l. c. 125, 324 Mo. 612; Cole v. St. Louis-S. F. Ry. Co., 61 S.W.2d l. c. 347, 332 Mo. 999; Burnam v. Chicago Great Western R. Co., 100 S.W.2d 859, 340 Mo. 25; Bennette v. Hader, 87 S.W.2d l. c. 417, 337 Mo. 977. (3) All instructions should be read and construed together. King v. Rieth, 108 S.W.2d 1, 341 Mo. 467; Dove v. Atchison, T. & S. F. Ry. Co., 163 S.W.2d 548; Swain v. Anders, 163 S.W.2d 1045; McDonald v. Kansas City Gas Co., 59 S.W.2d 37, 332 Mo. 356; Long v. F. W. Woolworth Co., 159 S.W.2d 619; Hieken v. Eichhorn, 159 S.W.2d l. c. 719; Morris v. Equitable Assur. Soc. of U.S., 102 S.W.2d l. c. 574, 340 Mo. 709; Collins v. Leahy, 102 S.W.2d l. c. 809; Cason v. Kansas City Term. Ry. Co., 123 S.W.2d l. c. 140; 1 Raymond, Missouri Instructions, sec. 209.

R. H. Musser and Clyde J. Linde for respondent.

(1) The charge of contributory negligence of plaintiff was for the jury and the court did not err in overruling demurrers at the close of plaintiff's evidence and at the close of the whole case. Monroe v. C. & A. R. Co., 280 Mo. 483, 219 S.W. 68; Mundy v. St. Louis-S. F. Ry. Co., 45 S.W.2d 941; Malone v. R. Co., 220 Mo.App. 9, 285 S.W. 123; McKerall v. R. Co., 257 S.W. 156; Rogues v. Butler County R. Co., 264 S.W. 474. (2) The trial court committed reversible error in giving Instruction D at the request of the defendant and properly granted plaintiff a new trial. Pearrow v. Thompson, 121 S.W.2d 811; Clason v. Lenz, 61 S.W.2d 727; King v. Rieth, 108 S.W.2d 1; Schide v. Gottschick, 43 S.W.2d 777; Schroeder v. Rawlings, 127 S.W.2d 678; State v. Hayde, 64 S.W.2d 667; Stanich v. Western Union, 153 S.W.2d 154; State ex rel. Grisham v. Allen, 124 S.W.2d 1080; Gilloz v. State Highway Comm., 153 S.W.2d 18; Schipper v. Brashear, 132 S.W.2d 993. (3) This court may consider all assignments in motion for new trial although the trial court indicated it gave plaintiff a new trial because of error of Instruction D. Cole v. St. Louis-S. F. Ry. Co., 61 S.W.2d 344. (4) Instruction E was erroneous. Oesterreicher v. Grup, 119 S.W.2d 307.

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

OPINION

BRADLEY

Plaintiff sued to recover $ 12,150 for personal injuries to himself, loss of service of his wife, and damage to his automobile. The jury returned a verdict for defendant; the court granted a new trial and defendant appealed.

About 7:45 a. m., November 22, 1939, plaintiff and his wife, in plaintiff's automobile and plaintiff driving, were traveling north on Spruce street in Kansas City, Missouri, and the automobile was struck by defendant's eastbound street car at the intersection of Spruce and 24th street, resulting in the injuries complained of.

The grounds of negligence submitted were (1) operation of the street car at a high and excessive rate of speed under the existing conditions; (2) failure to keep a proper lookout for automobiles; (3) failure to keep the street car under proper control; and (4) failure to sound a warning of the approach of the street car. These grounds were submitted in the conjunctive.

The answer was a general denial and a plea of contributory negligence. It was charged that plaintiff was negligent (1) in failing to keep a lookout; (2) failure to look and listen for the approaching street car; (3) failure to yield the right of way over the intersection, alleged to have been required by an ordinance; (4) operating the automobile at a high and excessive rate of speed; and (5) failure to exercise the highest degree of care.

The trial court granted the new trial on the ground that it was error to give defendant's instruction D, which follows:

"The court instructs the jury that plaintiff is chargeable under the law with the duty to exercise the highest degree of care for his own safety. You are further instructed that if you find that plaintiff failed to exercise the highest degree of care for his own safety, if so, and that such failure directly and solely caused said collision, if so, or if you find that said failure, if any, to exercise the highest degree of care for his own safety directly contributed to the cause of said collision, if so, then in either such event plaintiff's failure to exercise the highest degree of care for his own safety, if so, bars his right to a recovery and your verdict in such event, if you so find, should be for defendant."

Defendant says (1) that plaintiff failed to make a submissible case and that therefore, error in instruction D, if any, is not of consequence; (2) that if there is error in instruction D because it is too general and gave to the jury a roving commission, "plaintiff invited it by giving the same commission"; and (3) that, when all the instructions are considered together, there is no prejudicial error in instruction D.

Did plaintiff make a submissible case? Plaintiff, at the time (November 22, 1939) was sheriff of Clinton County, Missouri. He had been over in Kansas on official business; his wife went along and they remained over in Kansas City on the night of November 21st, at the home of plaintiff's sister. The sister's home was 2628 Spruce street, about a block and a half south of the intersection where the collision occurred. On the early morning of November 22nd, there was a heavy fog. Plaintiff and his wife went north from his sister's home on Spruce, and the collision occurred very shortly thereafter. Spruce street, from curb to curb at the intersection, was 26 feet in width, and 24th street, from curb to curb, was 34 feet in width.

Plaintiff testified that there was a heavy fog; that he was driving a six months old Buick Special four-door sedan; that the windshield wiper was going; that the type of windshield he had gave good vision on the sides and in front, and that the left front window was down a couple of inches, "enough to let the normal sounds come in"; that his headlights were on; that he was driving 10, 12, or 15 miles per hour and about 2 1/2 or 3 feet from the east curb on Spruce, and was watching closely; that he could see 10 feet west of the light pole "which shows on that picture". The pole was at the southwest corner of the intersection and west of the sidewalk, but how far west of the sidewalk is not shown.

Plaintiff further testified that he was familiar with the intersection; that at the intersection, and for some distance west the street car tracks are on a down grade to the east; that he knew that street cars ran on 24th street; that, as he approached, he looked both east and west and listened; that his eyes and hearing were good, but that he did not see the street car; did not hear it; did not hear any gong. "Q. Was there any gong rung or sounded? A. No, sir; if I had heard anything I would have stopped"; that "when I got my car in the intersection, or across the street car track (when struck the front wheels of the automobile were north of the south street car track and the rear wheels south of the track), all at once an object took me in the side, like that (indicating); that is when I saw the street car; the street car came out of that fog like nobody's business." The "like nobody's business" was stricken. Plaintiff said that his automobile was "shoved down the street car track about 20 or 25 feet", and that when the street car stopped "there was a light on it"; that "the motorman came around", and he said to the motorman, "What was you doing -- making out your report, or where were you looking?" and that the motorman said, "I didn't see you."

Plaintiff further testified: "Q. Do you have any judgment as to the speed of the street car? A. No; . . . the only way I had to judge the speed he was driving was by the lick he gave me and the damage done to my car, and the distance it shoved me with that heavier car. Q. What he did was to hit you on one side of your car? A. Yes, hit me between the fenders, just touched the rear fender and the front one, and hit me square in the left side, as I was going north, on the driver's side, and it caved the left side of the car."

Mrs. Bessie Paisley, plaintiff's wife, testified that "there was a fog in spots. Q. Tell the jury whether or not there was anything that obscured or clouded your vision. A. There was some light fog, was all. Q. How is that? A. A light fog. Q. A light fog? A. In places, and heavy in places. Q. The fog was settled in the low places? A. I presume that was it. I don't know. Q. It was slowly rising as the sun got up? A. Yes, sir, it was all clear in a few minutes. Q. About eight o'clock it got fairly well cleared? A. Yes, sir."

Mrs Paisley sat in the same seat and to the right of plaintiff; she said that she saw some children "on my side of the street at the crossing"; that she was watching on her side; that she had heard street...