Robinson v. Kansas City Public Service Co.

• Decision Date: 06 March 1940
• Docket Number: 36096
• Parties: DeEtta Robinson v. Kansas City Public Service Company, Appellant
• Court: Missouri Supreme Court

137 S.W.2d 548

345 Mo. 764

DeEtta Robinson v. Kansas City Public Service Company, Appellant

No. 36096

Supreme Court of Missouri

March 6, 1940

Motion for Rehearing Overruled January 23, 1940.

Motion to Transfer to Banc Overruled March 6, 1940.

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

Affirmed.

Charles L. Carr, Cooper, Neel & Sutherland and David P Dabbs for appellant.

(1) There is no error in defendant's Instruction C. This instruction limited plaintiff's right of recovery to injuries alleged in her petition. Moreover, the jury found the issue of negligence in favor of defendant and any error on the measure of damages would be immaterial. The jury could not have been influenced by use of the word "accident" in this instruction. Felver v Central Elec. Ry. Co., 216 Mo. 209; Definition of "accident," Black's Law Dictionary (2 Ed.). (2) Defendant's Instruction D is a standard form of instruction on burden of proof. Doherty v. St. Louis Butter Co., 98 S.W.2d 744, 339 Mo. 996; Linders v. People's Motorbus Co., 32 S.W.2d 581; Stofer v. Dunham, 208 S.W. 645. (3) The court's Instruction E correctly limited the issues to the case submitted by plaintiff's Instruction 1. (a) Plaintiff's Instruction 1 did not submit the case entirely under the humanitarian doctrine. It includes negligent construction and use of a track so sharply curved the rear end of cars extend out dangerously beyond the rails in making the turn. It also includes primary negligence in starting the car. Wholf v. Kansas City, C. C. & St. J. Ry. Co., 73 S.W.2d 195, 335 Mo. 520; Ridge v. Jones, 71 S.W.2d 713, 335 Mo. 219; Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1018. (b) Moreover the court's Instruction E does not include plaintiff's contributory negligence as a defense. Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234; Willhauck v. C., R. I. & P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 339; Hall v. Baldwin, 90 S.W.2d 152; Carrier v. Mo. Pac. Ry. Co., 175 Mo. 470, 74 S.W. 1002; Elkin v. St. L. Pub. Serv. Co., 335 Mo. 957, 74 S.W.2d 603; Pope v. Wabash Ry. Co., 242 Mo. 240, 146 S.W. 790; Smith v. C., R. I. & P. Ry. Co., 104 S.W.2d 1054; Banks v. Morris & Co., 302 Mo. 273, 257 S.W. 482; Ziegelmeier v. East St. L. Sub. Ry. Co., 51 S.W.2d 1029; Smith v. Wells, 31 S.W.2d 1023; Guyer v. Railroad Co., 73 S.W. 584, 174 Mo. 344. (4) The court's Instruction F merely submits the negative of the humanitarian portion of plaintiff's Instruction 1, and tells the jury that if they do not find the facts required to constitute a humanitarian case their verdict must be for defendant. Plaintiff's Instruction 1 submitted primary and humanitarian negligence in the alternative, therefore a correct instruction by defendant negativing the humanitarian portion of plaintiff's instruction was not error. Sackman v. Wells, 41 S.W.2d 154; Burow v. Red Line Serv. Co., 122 S.W.2d 920; Carle v. Akin, 87 S.W.2d 407; Ward v. Fessler, 332 Mo. 640, 252 S.W. 670; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 745; Weishaar v. K. C. Pub. Serv. Co., 128 S.W.2d 340. (5) Defendant's Instruction G correctly limits plaintiff's right of recovery to facts required to be found under a correct humanitarian instruction. Defendant was not required to concur in the erroneous portion of plaintiff's so-called humanitarian Instruction 1. Kirkdoffer v. St. L.-S. F. Ry. Co., 37 S.W.2d 573, 327 Mo. 166; Sites v. Knott, 197 Mo. 713; Blanton v. Dold, 109 Mo. 74; Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W.2d 874; Costello v. Kansas City, 219 S.W. 391, 280 Mo. 576. (6) Defendant's Instruction H correctly submitted the issue of plaintiff's negligence being the sole cause of her injury in accordance with the testimony of defendant's witnesses. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 745.

Edna Sperry and Louis R. Weiss for respondent.

(1) Defendant's Instruction C erroneously denominates the event as an accident contrary to plaintiff's proof that the same was negligence. Hogan v. K. C. Pub. Serv. Co., 19 S.W.2d 713; Hoffman v. Peerless White Lime Co., 296 S.W. 764; Sloan v. Polar Wave Ice & Fuel Co., 19 S.W.2d 481; Wright v. Quattrochi, 49 S.W.2d 6; Totten v. Smith Brothers, 3 S.W.2d 744; Jones v. Goldberg, 78 S.W.2d 509; Cannon v. Kresge Co., 116 S.W.2d 577. (2) Defendant's Instruction D not urged as error. (3) Defendant's Instruction E is erroneous because improperly injects matter foreign and contrary to the principles of the Missouri humanitarian doctrine. (a) Plaintiff's Instruction 1 is correct. Swinehart v. Kansas City Rys., 233 S.W. 63. (b) Defendant's Instruction E modified is palpably erroneous as stated. Larey v. M., K. & T. Ry. Co., 64 S.W.2d 685; Lynch v. Baldwin, 117 S.W.2d 276; Branson v. Abernathy Furniture Co., 130 S.W.2d 571; Goldman v. Term. Ry. Assn., 39 S.W.2d 805; Wilsch v. Gleiforst, 259 S.W. 851; Brown v. Wheelock, 83 S.W.2d 912; Willhauck v. C., R. I. & P. Ry. Co., 61 S.W.2d 339; Robinson v. O'Shanzky, 96 S.W.2d 898; Schulz v. Smercina, 1 S.W.2d 120; Gray v. Columbia Terminals Co., 52 S.W.2d 811. (4) Defendant's Instruction F is erroneous for the reason that it ignores the necessity for a warning under the humanitarian doctrine. Rollison v. Railroad Co., 252 Mo. 538, 160 S.W. 997; State ex rel. v. Trimble, 260 S.W. 1002; Zumwalt v. C. & A. Ry. Co., 266 S.W. 725; State ex rel. v. Shain, 125 S.W.2d 46. (5) Instruction G assumes as true material, controverted facts and undertakes to improperly restrict the zone of danger. Meeks v. K. C. Pub. Serv. Co., 73 S.W.2d 340; Schmitt v. Amer. Press, 42 S.W.2d 970; Schneider v. Terminal Ry. Assn., 107 S.W.2d 792. (6) Defendant's Instruction H criticized but not pressed as error. Crews v. K. C. Pub. Serv. Co., 111 S.W.2d 59; McGrath v. Meyers, 107 S.W.2d 794; Smithers v. Barker, 111 S.W.2d 53. (7) No prejudicial error inherent in Instruction 1. (8) No prejudicial error predicated on Instruction J. (9) Instruction 10 on the form of verdict approved. (10) The court erred in refusing to give plaintiff's offered Instruction 6 submitting the issue of primary negligence. (a) Plaintiff's right to challenge the action of the court in refusing this instruction established. Schneider v. Terminal Ry. Assn., 107 S.W.2d 791; Sakowski v. Baird, 69 S.W.2d 649; Schroeder v. Rawlings, 127 S.W.2d 683. (b) No inconsistency in submitting both primary and humanitarian negligence. Montague v. M.-K. & I. Ry. Co., 264 S.W. 817; Williams v. St. L. Pub. Serv. Co., 73 S.W.2d 203; Bumgardner v. St. L. Pub. Serv. Co., 102 S.W.2d 598. (c) Plaintiff had a right to have an instruction submitting every theory of recovery supported by testimony. State ex rel. v. Becker, 77 S.W.2d 103; Weiss v. Continental Ins. Co., 61 S.W.2d 396; Jennings v. Cooper, 230 S.W. 328. (d) Said Instruction 6 supported by the evidence and should have been given. Laurent v. United Rys., 191 S.W. 992; State ex rel. v. Daues, 300 S.W. 272. In looking over appellant's brief we notice that it argues the propriety and correctness of several of its given instructions, which we do not question. In fairness to this court and to the opposition, when these assignments are reached we will frankly admit that such points are not controverted.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Plaintiff brought suit to recover $ 15,000 for personal injuries alleged to have been caused by the negligence of defendant's motorman. The verdict of the jury was for defendant. Plaintiff's motion for a new trial was sustained "on account of error in instructions" and defendant appealed.

Plaintiff alleged both primary and humanitarian negligence, but went to the jury on the humanitarian doctrine only. Defendant answered by a general denial and a plea of contributory negligence.

Defendant had double street car tracks in Grand Avenue, a north and south street, and in Tenth Street, an east and west street. She was struck about 9 A. M., near the intersection of Grand and Tenth streets, by the rear overhang of a street car, forty-five feet in length, as it was turning left and east from Grand onto Tenth Street. At the place, Grand Avenue was sixty-three feet and ten inches from curb to curb, and Tenth Street was thirty-six feet from curb to curb. It was twenty-four feet and three inches from the west curb of Grand to the west rail of the west (southbound) track.

Plaintiff testified that she was on the way to her place of work, south of Tenth Street, and that she approached Grand Avenue from the east on the sidewalk on the north side of Tenth Street; that when she reached Grand, she saw a street car standing in the southbound zone on the west side of Grand, and facing south; that she thought it was a southbound car; that the front of the car was two or three feet north "of where you crossed the street;" that as she passed in front of the car she held up her hand, and that when she got around to the door she knocked on it; that the motorman "looked that way," but did not open the door, but started up the car. She further testified that when the car started up she thought she had missed it and "turned around thinking that I would go to the west side of the street and walk down" to place of work; that there were automobiles "coming from the north," and that she did not know the street car was turning east onto Tenth Street, and that, before she had moved after turning around, she was struck by the rear overhang of the street car as it turned.

Plaintiff and Gerald D. Elliott, defendant's motorman, were the only witnesses who testified as to what occurred. Elliott testified that he stopped the car two or three feet north of the switch points, and about twenty or twenty-one feet north of the north edge of the "crosswalk," that is, the area or lane used by pedestrians in crossing Grand...