Pennington v. Kansas City Railway Company
| Decision Date | 12 July 1920 |
| Citation | 223 S.W. 428,284 Mo. 1 |
| Parties | CLARENCE E. PENNINGTON, by JAMES A. SHANNON, Guardian, v. KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.
Affirmed.
Richard J. Higgins and Ben T. Hardin for appellant.
(1) The court erred in giving to the jury instruction number 1, as asked by the plaintiff. (a) Because the instruction assumes that plaintiff did not look "for the approach of said car," and that plaintiff was "unaware of the approach of said car." It also assumes that plaintiff was in danger. It assumes also, that if the motorman had "used said means," he would have avoided "striking and injuring him." Hunt v. City of St. Louis, 211 S.W. 677; Henson v. Kansas City, 210 S.W. 17; Ganey v. Kansas City, 259 Mo. 663; Ellis v. Met. Street Ry., 234 Mo. 675; Crow v Railway, 212 Mo. 610; Coffey v. Carthage, 186 Mo. 584; Wilkerson v. Eilers, 114 Mo. 252; Flannigan v. Nash, 190 Mo.App. 582; Wease v Tool Co., 187 Mo.App. 719; Bryan v. Lamp Co., 176 Mo.App. 725, 729; Fife v. Ry., 174 Mo.App. 663; Warrington v. Bird, 168 Mo.App. 388. (b) The instruction is erroneous also, in that it submits to the jury the legal question as to whether "the motorman in charge of the car should have seen and realized that plaintiff was unaware of the approach of said car." The word "should" imports duty or obligation, and is properly used in an instruction to advise a jury what their duty is, if they find certain facts. That is a question for the court. Kippenbrock v. Railroad, 270 Mo. 479 485. But here, the court, instead of telling the jury what the duty of the motorman was, under certain circumstances, left it for the jury to say what the motorman should have done, or to say what his duty was. The court must tell the jury what the duty of a motorman is, the violation of which would be negligence; and not leave it to the jury to say what his duty is, or what he should have done, no more than it should be left to the jury to say what their own duties are. "Should" and "ought" are synonymous terms. People v. Barkas, 255 Ill. 526; Smith v. State, 142 Ind. 293. (c) The instruction went outside the issues made by the petition and is broader than the evidence as well. State ex rel. v. Ellison, 213 S.W. 461. The negligence pleaded is that "no reasonable lookout was maintained. "But the petition failed to allege any duty on the part of the motorman to maintain a lookout at the place of the accident. Not being at a street crossing, no absolute duty was enjoined upon the motorman to keep a constant lookout for people to cross the track. Theobald v. Railway, 191 Mo. 432; Eppstein v. Railway, 197 Mo. 723; Hufft v. Railway, 222 Mo. 302; Degonia v. Railroad, 224 Mo. 589; Nivert v. Railway, 232 Mo. 639; Clark v. Railway, 242 Mo. 603; Chappell v. Rys. Co., 174 Mo.App. 135; Battles v. Railway, 178 Mo.App. 622; Maginnis v. Railway, 182 Mo.App. 713; Baker v. Railway, 187 Mo.App. 160; Grear v. Harvey, 195 Mo.App. 8, 182 S.W. 961; Israel v. Railway, 190 S.W. 1017. Merely to state in the petition that defendant was negligent in that "no reasonable lookout was maintained," without more, is merely to state a legal conclusion, and tenders no issue of fact. Zasemowich v. Am. Mfg. Co., 213 S.W. 802. (d) And in the use of the phrase: "in the exercise of ordinary care in the use of the bell to warn him of his danger," the instruction is in conflict with instruction number 13, given for defendant. There is not a word of evidence from any source, that plaintiff was oblivious to the approach of the car. The evidence on that question is to the contrary. It was error to submit to the jury the question of negligence on the failure to ring the bell. Peterson v. Railway, 270 Mo. 75; Young v. Railway, 227 Mo. 307; Mockowik v. Railway, 196 Mo. 550; Hutchinson v. Railway, 195 Mo. 546; Murray v. Transit Co., 176 Mo. 183; Heintz v. Transit Co., 115 Mo.App. 670. (2) The court erred in refusing to give to the jury the demurrer asked by the defendant at the close of plaintiff's evidence, and erred in refusing to give the peremptory instruction in the nature of a demurrer, asked by the defendant at the close of all the evidence in the case. It was error for the court to submit this case to the jury, under the case made by the undisputed evidence produced by the plaintiff. The plaintiff wholly failed to prove the allegations of the petition. McMiens v. Rys. Co., 274 Mo. 331; Keele v. Railway, 258 Mo. 75, 78; Griffin v. Transfer Co., 193 S.W. 810; Rollinson v. Railway, 252 Mo. 541; Burge v. Railway, 244 Mo. 102; Degonia v. Railway, 224 Mo. 596; McGee v. Railway, 214 Mo. 543; Frisby v. Transit Co., 214 Mo. 567; Markowitz v. Railway, 186 Mo. 359; Draper v. Rys. Co., 199 Mo.App. 490; Schoenhard v. Dunham, 187 S.W. 274; Lewis v. Street Ry., 181 Mo.App. 426; Underwood v. Railroad, 182 Mo.App. 251, 274; Lackland v. United Rys. Co., 197 Mo.App. 62; Brewing Co. v. Dunham, 177 S.W. 1067; Kinney v. News Co., 193 Mo.App. 343, 344; Costello v. United Rys., 213 S.W. 180.
Harry R. Freeman and T. J. Madden for respondent.
(1) Appellant partially abandoned its theory at the close of evidence. It offered three instructions under the assumption that plaintiff was stealing a ride on the rear step, and nine instructions on the assumption that plaintiff was struck by the front end of the car while crossing the track. It has entirely abandoned its trial theory here, and asks a reversal on the presumption that respondent's trial theory of fact was true. It should not be permitted to try its case on one theory and reverse it on another. (2) This case was a battle of facts. The positions of the parties were opposite and utterly irreconcilable. The two states of evidence could not both be true; nor could the difference be explained on any ground except that one was false. We go further than that and assert it was not a case alone where individual witnesses committed perjury, but that perjury had been suborned, organized and arrayed by a guiding hand. The question is, which side was guilty? The jury said it was the defense, and we are willing for this court to also examine the facts, and judge. The Kansas City Court of Appeals reviewed and affirmed the case of the mother on the same kind of a record we have here, and adopted plaintiff's theory of fact. Pennington v. Kansas City Railways Co., 213 S.W. 137. Both cases rest upon the same facts, except that no question of jury bribery or witness subornation is presented for review in this court. (3) The record discloses very substantial reasons why appellant abandoned its defense. Many of the witnesses for defendant were gathered from pool halls, cabarets and other resorts. One of the boys who testified upon the first trial found his way into the McCune Home; another boy confessed that he had committed perjury and other witnesses for the defendant acknowledged the receipt of extravagant sums of money for testifying; one witness, a painter, residing in Kansas City, receiving $ 25 each time he appeared in court. The conductor came fresh from the farm to supply the missing link in the defense, connecting up the plaintiff's injury with the ride on the rear steps, but he had written a letter which tragically exposed the perjury. The extraordinary conduct of the motorman in refusing to attend court and give evidence as to his own conduct in this affair shows something startingly unusual and strange, pointing inevitably to his consciousness of guilt and fear of exposure. The conduct of defendant, as disclosed by the opinion of the Kansas City Court of Appeals in the mother's case, is sufficient to show that the defendant knew its defense was spurious. (4) The case presented by plaintiff's evidence convicts the motorman of the grossest negligence. Had the motorman been at his post, he would have seen these boys as they were directing their steps towards the brilliantly lighted pictures; he would have seen them while they were still on the west-bound track and when his car was crossing Brooklyn Avenue, 120 feet west of the point of the injury; he would have seen that these boys belonged to the same group, and that the boys in the rear were following the footsteps of the leader; he would have seen the first boy approach the track in a steady, ordinary gait, apparently unconscious of the car, and cross the track toward the curb; he would have seen the second boy follow the same course, having the same manner, and ordinary care should have dictated to him that the third boy would do likewise. Every human impulse demands under such circumstances that the motorman put his car under control and take every reasonable precaution to avert the catastrophe. Ellis v. Street Railway, 234 Mo. 676; Moore v. United Rys., 185 Mo.App. 184. (5) A mere tap of the bell would have attracted the boy's attention and he would have stopped before going on the track, or, after he was on the track, would have hastened his pace and he would have gotten out of the way. There was evidence that the boy had perfect hearing, had good eyesight and ordinary intelligence, prior to the time he was hurt, and hence the failure to sound the gong became a proximate cause of the injury. (6) In considering the demurrer we are not confined to the question of stopping the car. If the car could have been so reduced in speed as to have permitted the boy to cross in safety, then that would authorize a submission of the case to the jury on that ground. (7) The burden of appellant's contention is that the speed of the car at the time was such as to make it impossible for the motorman to stop. Testimony fixed the speed at fifteen miles an hour, and it was for the jury to say under this evidence what the speed was. (8) There cannot be any claim under this...
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