Scott v. Kansas City Rys. Co.

• Decision Date: 05 March 1921
• Docket Number: No. 21787.,21787.
• Citation: 229 S.W. 178
• Parties: SCOTT v. KANSAS CITY MM. CO.
• Court: Missouri Supreme Court

229 S.W. 178

SCOTT v. KANSAS CITY MM. CO.

No. 21787.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Ida M. Scott against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

R. J. Higgins, of Kansas City, Kan., and Mont T. Prewitt, of Kansas City, Mo., for appellant.

Harry Friedberg, J. F. O'Sullivan, and Atwood, Wickersham, Hill & Popham, all of Kansas City, Mo., for respondent.

WOODSON, P. J.

This suit was instituted in the circuit court of Jackson county by the plaintiff to recover damages from the defendant for personal injuries received while a passenger on one of defendant's cars, in Kansas City, Mo. This trial resulted in a verdict and judgment for the sum of $2,966, and in proper time and form the cause was appealed to the Kansas City Court of Appeals, which in an able opinion by that distinguished jurist, James Ellison, affirmed the judgment of the Circuit Court, in which all concurred, but subsequently, in motion for a rehearing, one of the judges dissented, and the cause was certified to this court.

The opinion of the Court of Appeals is short, and reads as follows:

This action is for personal injury received by plaintiff while a passenger on one of defendant's street cars. The judgment in the trial court was for plaintiff. The charge in the petition is one of general negligence, whereby there was a collision of the south-bound car in which plaintiff was riding with another. There was evidence tending to prove that plaintiff entered the car at Fifteenth street and Grand avenue in Kansas City. She got into the car and was in the act of seating herself, when the car started up, and, instead of going straight south, turned in the switch, which would lead it to the east, across the other track. At this time a north-bound car on Grand avenue struck it with such force as to throw plaintiff against a seat as she fell to the floor. She was assisted by her companion. There was evidence tending to show that she was severely injured. There was conflicting evidence, but that for plaintiff tended to show the collision, and that it was of such force as to break the chain of the fender on one of the cars. So there was sufficient evidence tending to show that defendant owned and operated the car. We have no doubt the trial court properly overruled the demurrer to the evidence.

It is claimed that plaintiff's first instruction is erroneous, in that it purported to cover the whole case and direct a verdict, without including a hypothesis that defendant had "rebutted the presumption of negligence." So far as concerns the instruction, plaintiff did not rely on a presumption of negligence as in Price v. Street Ry. Co., 220 Mo. 435, 444, 119 S. W. 415, 132 Am. St. Rep. 584, and Meegan v. Street Ry. Co., 161 Mo. App. 45, 142 S. W. 1104. No reference was made to a presumption; on the contrary, the instruction required the jury to believe from the evidence that defendant was guilty of negligence. The point made fails, for the reason that there is nothing upon which to base it.

The instruction required that defendant's servants should have exercised the highest practicable care and skill "which might reasonably be expected of ordinary careful and prudent persons engaged in like business in running and operating its cars." The objection is directed at the phrase "which might reasonably be expected." We think the criticism is not substantial.

Further objection is made on the...