Rishel v. Kansas City Public Service Co.
| Decision Date | 14 June 1939 |
| Docket Number | 35593 |
| Citation | 129 S.W.2d 851 |
| Parties | RISHEL v. KANSAS CITY PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Edwards, Thomsen & Johnson, of Kansas City, for appellant.
Charles L. Carr and Harding, Murphy & Tucker, all of Kansas City, for respondent.
DALTON, Commissioner.
This is an action for damages on account of personal injuries. The amount of recovery sought was $ 15,000. The jury returned a verdict for defendant on which judgment was duly entered. Motion for a new trial was overruled, and plaintiff appealed.
The amended petition alleges that plaintiff was riding as a guest passenger in an automobile, and that she was injured when the automobile in which she was riding collided with a motor bus of defendant. The specific assignment of negligence is that 'Defendant, its agents, employees and servants negligently, carelessly and recklessly, operated said motor bus on said highway at an excessive rate of speed and suddenly stopped said bus without any warning and negligently, carelessly and recklessly stopped said bus on the traveled portion of said concrete highway.' Respondent's answer was a general denial.
Plaintiff's evidence as set forth in the abstract of the record tends to show that plaintiff was riding in a Ford coupe being driven west on U. S. Highway 24 in Jackson county, Missouri; that defendant's bus was proceeding in the same direction; that there were four lanes in said highway; that the Ford coupe was traveling in the right hand lane; that the motor bus approaching from the rear passed to the left of the automobile and after having passed turned to the right, stopped on the pavement in front of the automobile, so that both lanes of west bound traffic were obstructed. The automobile collided with the left rear end of the motor bus.
Over the objection of defendant the plaintiff was permitted to show the location of the motor bus, after it had stopped, with reference to the north edge of the pavement to wit: that the right front end of the bus was about 4 feet from the north edge of the pavement while the right rear end of the bus was some 7 to 15 feet from the north edge of the pavement; and that the bus was parked at an angle. Appellant contends that much of the testimony showing the position of the bus on the highway after it had stopped was admitted without objection. The record shows that respondent promptly objected when appellant first inquired as to the location of the bus with reference to the north edge of the pavement. Respondent, having been ruled against, did not need to continue to object to such testimony. The record further discloses that the edge of the pavement was not necessarily the edge or 'side of the highway.' It affirmatively appears that a space some 9 feet in width north of the edge of the pavement and between the pavement and a certain bridge abutment was graveled.
Appellant complains first of the court's refusal to give plaintiff's instruction No. 1. This instruction is apparently based upon Sec. 7777 (a), R.S.Mo.1929, Mo.St.Ann. § 7777(a), p. 5213, which requires vehicles when not in motion to be placed with their right sides as near the right hand side of the highway as practicable. Among other things it would have advised the jury that if they found 'that the defendant, its agents, servants or employees stopped said bus on said highway in such a position that the right side of said bus was not as near the right hand side of said highway as was practicable' that such failure constituted negligence and if as a direct result thereof the motor car in which plaintiff was riding collided with defendant's motor bus resulting in injury to plaintiff that their verdict should be in favor of plaintiff and against defendant.
Appellant contends that there was substantial evidence tending to prove that the operator of the motor bus violated the above statutory provision that the allegations of the petition were sufficient to permit the introduction of evidence showing a violation of said statute; that the jury should have been instructed as to the law of the state when the evidence showed a violation of the statute; and that there was evidence tending to prove that the violation of the statute was the proximate cause of the accident.
Appellant's abstract of the record, however, discloses that the court gave other instructions requested by appellant, to wit, instructions 2, 3, 4, and 5 but said instructions are not set out in the abstract of the record and their content is not disclosed.
Appellant complains further of the giving of defendant's instruction lettered 'P'. This was a 'sole cause' instruction given on behalf of defendant which advised the jury that if they believed and found from the evidence that the driver of the automobile in which plaintiff was riding was negligent and careless in the operation of the automobile, as set out in detail in said instruction, and that such negligence 'was the sole, direct and proximate cause of said collision and resulting injuries, without negligence on the part of the operator (of the bus) as shown in the evidence, if any, which directly caused or contributed to the cause of said collision' then and in that event the defendant was not liable and their verdict should be for defendant.
The introductory part of this instruction advised the jury that the operator of the automobile in which plaintiff was riding at the time of the collision was chargeable under the law with the duty of exercising the highest degree of care in the operation and management of his automobile, and further stated: 'The court instructs you, however, that the negligence of the driver of the automobile in which plaintiff was riding can not be imputed to plaintiff in determining whether his negligence, if any, was the sole cause of the collision.' Appellant contends that the italicised part of said paragraph of the instruction assumed a controverted fact, and assumed that the operator of the automobile in which appellant was riding was guilty of negligence.
Appellant's abstract of the record, however, discloses that in plaintiff's motion for a new trial the plaintiff complained, not only as to the giving of instruction 'P' but also of instructions C, D, G, and I, offered by defendant. The form or content of said instructions is not disclosed by appellant's abstract to the record. It is also apparent from appellant's abstract of the record that much of the evidence has been omitted.
We are first confronted by respondent's motion to dismiss the appeal in this case invoking our Rule 16, and requesting dismissal on the ground that appellant has violated the provisions of Rule 13 of this court. This motion was duly and timely filed and has been taken with the case.
Rule 13 provides with reference to the abstract of the record that
It has been seen that appellant made two assignments of error upon which she relies for reversal, the first being the refusal of the trial court to give plaintiff's instruction 1, and the second being the giving of defendant's instruction 'P', but appellant's abstract of the record fails to set out the instructions actually given by the court at appellant's request, or the instructions given at request of respondents, except instruction 'P'.
We agree with respondent that with the record in this condition it is impossible for this court to determine whether or not the trial court erred in refusing to give instruction 1. The identical subject matter of the instruction may have been covered in other instructions given by the trial court, which, as stated before, are not set forth in the abstract of the record. It is impossible for this court to determine whether or not the giving of instruction 'P' was erroneous for the reason that the error, if any, in that instruction may have been invited, cured or neutralized by instructions given for appellant and not set out in the abstract of the record.
After the filing of respondent's motion to dismiss and within 6 days of the time this cause was set for argument in this court, appellant apparently without the consent of counsel for respondents and without leave of court, lodged with the clerk of this court a supplemental abstract of the record purporting to contain all of the instructions given on behalf of both appellant and respondent which were not included in the original abstract of the record. No reason is assigned for failure to present them in the first instance.
Respondent has duly filed its objections to the consideration of appellant's supplemental abstract to the record, and on the theory that said supplemental abstract presents entirely different questions from that presented by the original abstract in that it brings into issue, whether or not instruction 1 was covered by other instructions given by the trial court; whether or not error, if any, in instruction 'P' was cured, invited or neutralized by other instructions; and whether or not in connection with instruction 'P' negligence, if any, on the part of the driver of the Ford coupe was assumed in instructions given for and on behalf of appellant. Respondent points out that said supplemental abstract was not filed within the time provided by Rule 11, for the filing of abstracts of the record, and that it was filed after the cause had...
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