Shepard v. Kansas City Pub. Serv. Co.

• Decision Date: 25 May 1942
• Docket Number: No. 20158.,20158.
• Citation: 162 S.W.2d 318
• Parties: JOHN SHEPARD, APPELLANT, v. KANSAS CITY PUBLIC SERVICE COMPANY, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

162 S.W.2d 318

JOHN SHEPARD, APPELLANT, v. KANSAS CITY PUBLIC SERVICE COMPANY, A CORPORATION, RESPONDENT.

No. 20158.

Kansas City Court of Appeals, Missouri.

May 25, 1942.

Appeal from Jackson Circuit Court. — Hon. Paul A. Buzard, Judge.

AFFIRMED.

Allan R. Browne and Ralph E. Griffith for appellant.

(1) The court erred in granting a new trial to the respondent. O'Gara v. St. Louis Transit Co., 204 Mo. 724; Rice v. C.B. & Q., 153 Mo. App. 35; Smith v. St. Louis Transit Co., 120 Mo. App. 328; Farber v. Mo. Pac., 116 Mo. 81, 91; McQuerry v. Met., 117 Mo. App. 255, 262; Becker v. Lincoln, 174 Mo. 246, 250; Cull v. McMillan (Mo. App.), 178 S.W. 868; Seymour v. Citizens, 114 Mo. 266; Gardner v. Met., 223 Mo. 389; Gage v. St. Louis Transit Co., 211 Mo. 139; Dean v. K.C., St. L., 199 Mo. 386, 408; Gray v. Kurn, 137 S.W. (2d) 558; Shaffir v. Sieben (Mo.), 233 S.W. 419; McWhorter v. Dahl (Mo. App.), 88 S.W. (2d) 240.

Charles L. Carr and Hogsett, Trippe, Depping & Houts for respondent.

(1) The trial court did not err in sustaining defendant's motion for new trial. Woas v. St. Louis Transit Co., 198 Mo. 664, 667-682, 96 S.W. 1017, 1018-1023, and numerous cases therein cited. Gray mule case on all fours with present situation; Rice v. White, 239 S.W. 141, 144-145. Window broken by person not under control of defendant — no liability; Williams v. East St. Louis & S. Ry. Co., 207 Mo. App. 233, 238-245, 232 S.W. 759, 759-761. Case distinguishes present situation of sporadic throwing of object by third person from situation in mob cases; Malone v. St. Louis-San Francisco Ry. Co., 202 Mo. App. 489, 490-499, see particularly 493-497, 213 S.W. 864, 864-867, see particularly 865-866. Case where passenger injured by means or instrumentalities used in transportation distinguished from case, as here, where passenger injured by missile thrown through window by third person not connected with carrier; Rice v. Chicago, Burlington & Quincy Ry. Co., 153 Mo. App. 35, 43-44, 46-48, 131 S.W. 374, 376-377. Case where passenger injured by track obstruction distinguished from case, as here, where passenger injured by stone hurled into car by illegal act of third person not under control of carrier; O'Gara v. St. Louis Transit Co., 204 Mo. 724, 739, 103 S.W. 54, 59. Case where passenger injured by obstruction of track (brick on track) distinguished from case, as here, where passenger is injured by the wrongful act of a third person throwing object through window and who is not under control of carrier; Lige v. Chicago, Burlington & Quincy R.R. Co., 275 Mo. 249, 260-263, 204 S.W. 508, 510-511. Duty of carrier to protect passengers from violence from all persons on the train distinguished from case where passenger injured by unlawful act of third person not on train and not under control of carrier; R.S. Mo. 1939, sec. 4525. Unlawful to throw stone or other thing into or at any car while in motion or otherwise; Sams v. St. Louis & M.R.R. Co., 174 Mo. 53, 72, 73 S.W. 686, 690. Street car is a car within meaning of the above statute, Section 4525; State v. Lang, 14 Mo. App. 247, 248-250. Street car is a car within meaning of the above statute, Section 4525; Smith v. Mabrey, 154 S.W. (2d) 770, 771-772. If no danger exists except for independent cause, such cause only is the proximate cause; The Lusitania, 251 Fed. 715, 732. No negligence by shipowner in connection with illegal sinking of ship by submarine — even if negligence shown it could not be proximate cause where an independent, illegal act of a third person intervenes to cause the injury. (2) The action of the trial court in sustaining defendant's motion for new trial can be upheld on the ground that the trial court erred in giving plaintiff's Instruction No. 1 to the jury. (a) Woas v. St. Louis Transit Co., 198 Mo. 664, 667-682, 96 S.W. 1017, 1021-1022, and numerous cases therein cited. Carrier required to exercise ordinary care only to prevent injury to passenger by intentional, willful or unlawful act of stranger over whom carrier has no control; Williams v. East St. Louis & S. Ry. Co., 207 Mo. App. 233, 238-245, 232 S.W. 759, 760-161. Carrier required to exercise ordinary care only to prevent injury to passenger by intentional willful or unlawful act of stranger over whom carrier has no control; R.S. Mo. 1939, sec. 4525. Unlawful to throw stone or other thing into or at any car while in motion or otherwise; Sams v. St. Louis & M.R.R. Co., 174 Mo. 53, 72, 73 S.W. 686, 690. Street car is a car within meaning of the above statute, Section 4525. State v. Lang, 14 Mo. App. 247, 248-250. Street car is a car within meaning of the above statute, Section 4525. (b) See cases cited under points and authorities (1), supra.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $4250. The court granted defendant a new trial on the ground that it should have sustained its instruction in the nature of a demurrer to the evidence. Plaintiff has appealed.

The facts show that defendant operates a street car system in Kansas City; that one of its single track lines runs through a public park situated north of 71st Street in said city; that on or about September 2, 1939, about 1:30 P.M. of a clear day, plaintiff was a passenger on one of defendant's northbound cars being operated over this line; that the car stopped on the south side of 71st Street and then proceeded northwardly across the street and park in question; that when it reached a point about twelve to twenty feet north of the north line of 71st Street, a hard object, such as a rock or a pine cone, came through the window in front of the seat where plaintiff was sitting, breaking the window and resulting in a fragment of glass entering his left eye causing blindness therein.

Three witnesses testified concerning the accident. Plaintiff, on his own behalf, and the motorman and another passenger, who testified for defendant.

Plaintiff testified that he was sitting on the east side of the car about midway thereof; that when the car stopped on the south side of 71st Street he saw some boys in a large evergreen tree situated on a little knoll twelve to fourteen feet east of the track and twelve to twenty feet north of 71st Street; that there was another tree about eight feet from the one containing the boys with four bicycles lying thereunder; that the boys were bouncing the limbs up and down and throwing objects across the track; that when the boys would throw the branches would expand and plaintiff was thereby given an "opening through there" so that he could see the boys in the tree; that they threw three or four times and threw three or four objects across the track before the street car passed along the side of the tree; that when the car passed by the tree the boys again threw two objects, the first striking between the windows ahead of him with a sound like a shotgun, the next one striking the window ahead of him resulting in the window breaking and causing plaintiff's injury; that he saw the boy throw the rock that broke the window. He further testified that only two objects hit the street car; that the car was going about ten miles per hour; that the operator did not do anything until the object hit the window; that he then stopped the car and inquired of plaintiff "what happened;" that plaintiff replied: "Some fellows threw a rock through the street car window;" that the operator then alighted from the car and the boys hurriedly climbed down from the tree and rode off on their bicycles. Their names or identity were not disclosed. The operator did not ring a bell or sound any warning prior to the accident. Plaintiff further testified that the boys were tall and between fourteen and sixteen years of age, "they were big fellows."

On cross-examination, plaintiff testified that when he saw the boys throwing across the track "I could not tell exactly what they were throwing, ... but I knew they were throwing;" that he did not know at what they were throwing as he did not see anything; that "I saw the things leaving their hands;" that when the car crossed over the street he saw them throwing something but he could not tell "whether the things were heavy enough to break a window or not." ... "Q. And before the street car got there you saw them throw three or four times? A. Yes, sir... . I still remained at the window because I thought the boys when I first saw them throwing, I thought they would have judgment not to throw at the street car or throw anything that way towards the street car... . I had in mind when I saw these boys throwing that they would not throw at a street car or would not throw across the street car track where the street car would be passing. I did not think they would throw and let the rocks come in contact with the street car so I remained on my side, and I did not look any more than to look out like that and see them and then I did not look at them and I kept my face in front of them until the rocks hit the front end of the street car. Q. In other words, Mr. Shepard, there was not anything in the actions of these boys that caused you to believe that they were going to hit the street car or a window? A. No, sir, ... I did not think I was going to get hurt. I did not think the boys were going to throw in the path of the street car. I did not think they would throw, and I thought that looked like very funny and then throwing in the way of the street car coming. I did not think the boys would be that bad;" that he had received a questionnaire from defendant through the mail and filled it out. He therein stated: "Those bad boys were the whole trouble," and he testified at the trial that that was his present idea of the matter. He further said in the questionnaire that he was riding on a car through the park the winter before and some one threw a snow ball with a rock in it at the car. He testified that he said in the questionnaire that the rock in the...