Robards v. Kansas City Public Service Co.

• Decision Date: 30 January 1939
• Parties: LYLE ROBARDS, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

125 S.W.2d 891

233 Mo.App. 962

LYLE ROBARDS, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

January 30, 1939

Appeal from Circuit Court of Jackson County.--Hon. Donald T Patterson, Special Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Charles L. Carr, E. E. Ball and Virgil Yates for appellant.

(1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence, offered and requested by the appellant at the close of respondent's case (which was all of the evidence offered in the case) over the objection and exception of the appellant, because respondent failed to make a case for the jury. Respondent was guilty of contributory negligence as a matter of law. Gordon v Met. St. Ry. Co., 153 Mo.App. 555, 134 S.W. 26; McConnell and Pitcher Ice & Fuel Co. v. United Ry. Co. (Mo. App.), 238 S.W. 553; Boring v. Met. St. Ry Co., 194 Mo. 541, 92 S.W. 655; Laun v. St. Louis & S. F. Ry. Co., 216 Mo. 563, 116 S.W. 553; Dey v. United Ry. Co., 140 Mo.App. 461, 120 S.W. 124; Roenfeldt v. St. Louis & Suburban Ry. Co., 180 Mo. 554, 79 S.W. 706; Smeltzer v. Met. St. Ry. Co., 166 Mo.App. 204, 148 S.W. 192; Epstein v. Wells (Mo. App.), 284 S.W. 85; Lane v. K. C. Ry. Co. (Mo. App.), 228 S.W. 870; Ross v. Wells (Mo. App.), 255 S.W. 952; Gubernick v. United Ry. Co. (Mo.), 217 S.W. 33; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Dowler v. Kurn et al. (Mo. App.), 119 S.W.2d 852; Piening v. Wells (Mo.), 271 S.W. 62. (2) The court erred in giving respondent's instruction number 1, over the objection and exception of the appellant. (a) Instruction number 1 is erroneous and defective in the following: Respondent submitted three grounds of negligence in the disjunctive or alternative and the instruction does not require that the three respective grounds of negligence were the direct or proximate cause of the collision. Counts v. Thomas (Mo. App.), 63 S.W.2d 416; McWhorter v. Dahl Chevrolet (Mo. App.), 88 S.W.2d 240; Biesen v. Goren (Mo.), 100 S.W.2d 897; Fenton v. Hart (Mo. App.), 73 S.W.2d 1034; Morris v. Seitrich, 118 S.W.2d 46. (b) Instruction number 1 is further defective and erroneous in the last act of negligence submitted to the jury in said instruction. Banks v. Morris & Co., 257 S.W. 482. (3) The court erred in giving respondent's instruction number 2, over the objection and exception of the appellant. This instruction is erroneous and defective in that it gives an incorrect definition of negligence as applicable to the instant case and is in direct conflict with appellant's given instruction "C" which is a correct instruction. Murray v. K. C. Pub. Ser. Co., 61 S.W.2d 334; Sec. 7775, R. S. Mo. 1929; Garvey v. Ladd, 266 S.W. 727; Barryman v. Cox, 73 Mo.App. 67; Welsh v. Wabash Ry. Co. (Mo. App.), 274 S.W. 871; Woods v. Ogden (Mo.), 102 S.W.2d 648.

Lancie L. Watts for respondent.

(1) On the evidence admitted at the trial of this case, respondent was not guilty of contributory negligence as a matter of law. Powell v. St. Joseph Railway Co., 81 S.W.2d 957, l. c. 959; Minnis v. Brewing Co., 226 S.W. 999, l. c. 1000; Oates v. Met. Street Rys. Co., 168 Mo. 535; Spoeneman v. Uhri, 60 S.W.2d 9. (2) There was no error in giving respondent's Instruction No. 1, because-- (a) Respondent's failure to instruct the jury to find that appellant's negligence was the proximate cause of the damages was cured, under the doctrine of aider, by appellant's Instruction B, which squarely submitted the issue of "Proximate cause." (b) Respondent did not submit an instruction on the humanitarian doctrine. Deschner v. St. Louis Ry. Co., 200 Mo. 310; Cornovski v. St. Louis Transit Co., 207 Mo. 263; Kaiser v. Jaccard, 52 S.W. 18, l. c. 20. (3) There was no prejudicial error in giving respondent's Instruction No. 2. Klohr v. Edwards, 94 S.W.2d 99, l. c. 104; Alewel v. E. St. Louis & S. Ry. Co., 26 S.W.2d 869, l. c. 873; Larey v. Railroad Co., 64 S.W.2d 681, l. c. 684, 333 Mo. 949, l. c. 955; Klutts v. Railway Co., 75 Mo. 646, l. c. 648; McDonald v. Kansas City Gas Co., 332 Mo. 356, l. c. 364, 59 S.W.2d 37, l. c. 40; King v. Friederich, 43 S.W.2d 843, l. c. 844. (4) The judgment is manifestly for the right party and should be affirmed. Beck v. Hauling Co., 293 S.W. 449, l. c. 450; Secs. 821, 1062 R. S. 1929.

OPINION

SHAIN, P. J.

This action involves a collision between a tractor and trailer, operated and owned by plaintiff, and a street car owned and operated by the defendant.

The collision occurred at the intersection of Fifteenth Street and Indiana Avenue in Kansas City, Jackson County, Missouri. Fifteenth Street runs east and west, is approximately seventy-five feet from curb to curb, and is a through street. Indiana Avenue runs north and south, is approximately thirty feet from curb to curb, and there is a stop sign situate at its intersection with Fifteenth Street. On Fifteenth Street the defendant has double cartracks which are somewhat closer to the north curb than to the south curb of Fifteenth Street.

The collision occurred at about 6:30 A. M. on a clear morning, and the streets were dry. The plaintiff's truck was traveling north on Indiana Avenue and the street car was traveling west on Fifteenth Street. At the time of the collision the truck was traveling at approximately seven miles an hour and the street car from twenty-five to thirty miles an hour.

When the collision occurred the truck, ten feet in length and the trailer twenty-two feet in length, had entirely crossed the south or eastbound car tracks and the truck had entirely crossed the north or westbound tracks, but the trailer was on the north tracks and was struck by the street car at approximately the center of the said trailer.

The plaintiff for cause of action makes allegation of corporation and business of defendant and thereafter states as follows:

"That at the time of said collision and damages plaintiff was exercising proper care and caution for his own safety, and the safety of the vehicle which he was driving."

Thereafter plaintiff pleads as follows:

"Plaintiff further states that the defendant, its agents, servants and employees, were careless and negligent in that the defendant, its agents, servants and employees in charge and operating said street car, saw plaintiff's trailer and tractor, and the driver thereof, or by the exercise of ordinary care could have seen the same in a position of immiment peril or about to enter a position of imminent peril, in time thereafter, by the use of the conveniences at hand, to have stopped said street car, slackened its speed, or issued a warning signal and thereby could have avoided the striking of and damages to plaintiff's trailer, but this the defendant, its agents, servants and employees, negligently and carelessly failed to do; that said defendant, its agents, servants and employees, negligently and carelessly operated said street car at a high, excessive and dangerous rate of speed as it approached the place of collision, to-wit, thirty miles per hour; in that the defendant, its agents, servants and employees, negligently and carelessly failed to yield the right of way to plaintiff and his said tractor and trailer; that said defendant, its agents, servants and employees, negligently and carelessly failed to keep a vigilant watch for persons and vehicles, and particularly plaintiff's vehicle, on the thoroughfare of street ahead of said street car, or approaching the pathway of the street car so operated, when by keeping such watch, the defendant, its agents, servants and employees, could have seen plaintiff's vehicle on the street, or approaching the pathway of defendant's street car, in time for the motorman thereof, by the exercise of the highest degree of care, with the means and appliances at hand, to have stopped said street car, slackened the speed thereof, sounded a warning and thereby could have avoided striking plaintiff's vehicle, but this the said motorman negligently and carelessly failed so to do. Plaintiff further states that at said time and place the said negligent acts and omissions of defendant, its agents, servants and employees, operated severally and concurrently in causing plaintiff's vehicle to be struck and damaged, as follows, to-wit:"

Thereafter damages to the trailer are set forth.

The defendant makes general denial and further pleads contributory negligence as follows:

"That said plaintiff negligently and carelessly failed to exercise the highest degree of care in the operation of his tractor and trailer, in that he failed to drive the same in a careful and prudent manner, and negligently and carelessly failed to keep a vigilant and careful lookout for street cars and other vehicles upon Fifteenth Street when he entered same from Indiana Avenue at the time and place mentioned in his petition.

"That he was at said time and place operating his tractor and trailer at a high, excessive and negligent rate of speed under the circumstances then and there existing, and failed to observe his surroundings and the oncoming street car.

"Defendant states that plaintiff was further negligent and careless in this, to-wit:

"That at said time alleged in his petition there was in full force and effect in Kansas City, Missouri, an ordinance known as the 'Traffic Code of Kansas City, Missouri,' passed December 15th, 1930, effective January 1st, 1931, being Ordinance Number 2031 of the Council of Kansas City, Missouri."

Thereafter portions of the ordinance relied upon are set forth.

Further, defendant interposed a counterclaim which was withdrawn before case was submitted. Plaintiff makes general denial to answer and files answer to counterclaim withdrawn as aforesaid.

Trial was before a jury and...