Smith v. Public Service Co.

• Citation: 43 S.W.2d 548
• Decision Date: 17 November 1931
• Docket Number: No. 28941.,28941.
• Parties: DANIEL J. SMITH, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY.
• Court: United States State Supreme Court of Missouri

43 S.W.2d 548

DANIEL J. SMITH, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY.

No. 28941.

Supreme Court of Missouri.

Court en Banc, November 17, 1931.

Appeal from Jackson Circuit Court. — Hon. A.R. Southern, Judge.

AFFIRMED AND REMANDED.

O.H. Swearingen and Fred J. Wolfson for appellant.

(1) The court erred in granting defendant a new trial. (a) There was substantial evidence tending to establish the negligence charged, and the demurrers were properly overruled. Morris v. Cement Co., 19 S.W. (2d) 872; Gannon v. Gas Light Co., 145 Mo. 502; Keller v. Supply Co., 229 S.W. 173; Fischer v. Public Service Co., 19 S.W. (2d) 500; Crowley v. Railway Co., 18 S.W. (2d) 543; Conley v. Railway Co., 284 S.W. 180. (b) Where the evidence is such that the minds of reasonable men may differ, it is a question of fact for the jury. Cech v. Mallinckrodt, 20 S.W. (2d) 509; Nordman v. Bakery Co., 298 S.W. 1039; Sugarwater v. Fleming, 293 S.W. 111; Vardell v. Store Co., 4 S.W. (2d) 478; Brickley v. Terminal Ry. Co., 259 S.W. 476; Troll v. Drayage Co., 254 Mo. 332; Fischer v. Public Service Co., 19 S.W. (2d) 500. (c) Contributory negligence is not a defense or bar to a recovery under the humanitarian rule. Schroeder v. Wells, 310 Mo. 642, 276 S.W. 60; Logan v. Railroad Co., 300 Mo. 611; Bode v. Wells, 15 S.W. (2d) 335; Burke v. Pappas. 293 S.W. 142; Spindler v. Wells, 276 S.W. 387; Moore v. Frisco. 283 S.W. 732; Causey v. Wittig, 11 S.W. (2d) 11; Stauffer v. Ry. Co., 243 Mo. 315; Cech v. Mallinckrodt, 20 S.W. (2d) 509; Petit v. Goetz Sales Co., 281 S.W. 973. (d) The motorman saw plaintiff come out from behind the traffic which had stopped on the east side of Summit Street to let the street car by: saw him "sway" to the south in an effort to avoid being struck; heard him fall against the side of the street car; had present ability, with means at hand, to have avoided the impending injury without endangering himself or others, but failed to exercise ordinary care to avoid injuring plaintiff, and by reason thereof, plaintiff was injured and is entitled to recover. An ordinary motorman would have realized that plaintiff was in danger from the time he saw him turn his motorcycle in an effort to avoid being struck. Wilson v. Wells, 13 S.W. (2d) 541; Laughlin v. Grocer Co., 10 S.W. (2d) 75; Unterlachner v. Wells, 317 Mo. 181; Dutcher v. Railroad Co., 241 Mo. 137; Anderson v. Davis, 314 Mo. 515; Harrington v. Dunham, 273 Mo. 415; Banks v. Morris, 302 Mo. 267. (e) The motorman saw plaintiff before the collision; heard him fall against the side of the street car and testified that he could have stopped in a car-length, 41 feet, but ran at least two car-lengths, and probably three car-lengths, before the rear wheels ran over plaintiff's leg. Under these circumstances, the demurrer at the close of the evidence was properly overruled. Conley v. Ry. Co., 284 S.W. 180; Treadway v. United Railways, 300 Mo. 156; Eppstein v. Ry. Co., 197 Mo. 720; Dincler v. Ry. Co., 265 S.W. 113. (2) The trial court committed error by granting defendant a new trial on the ground that the court erred in failing and refusing to give a peremptory instruction in favor of the defendant at the close of plaintiff's testimony and again at the close of all the evidence. (a) The defendant having asked and been given an instruction upon the humanitarian doctrine, another based on speed ordinance and one on sole cause, after its general demurrer had been overruled, was not entitled to ask for a new trial on the ground that there was not sufficient evidence to entitle plaintiff to go to the jury. Torrance v. Pryor, 210 S.W. 432; State ex rel. v. Allen, 272 S.W. 925; Dincler v. Ry. Co., 265 S.W. 113; Spina v. Biscuit Co., 273 S.W. 428; Smith v. Ry. Co., 282 S.W. 62; Anderson v. Davis, 314 Mo. 515. (5) The trial court gave, at the request of defendant, instructions fully informing the jury as to every defense defendant might invoke and defendant is estopped from urging a general demurrer. State ex rel. Ry. v. Allen, 272 S.W. 925; Torrance v. Pryor, 210 S.W. 430; Davidson v. Hines, 246 S.W. 295; Holloway v. Barnes, 15 S.W. (2d) 917; Crum v. Crum, 231 Mo. 626; Soureal v. Wisner, 13 S.W. (2d) 548. The trial court did what both parties asked him to do in declaring the law. The defendant having joined issues with plaintiff and lost will not be allowed a second trial. Shapiro v. Am. Surety Co., 259 S.W. 502; State ex rel. Ry. Co. v. Allen, 272 S.W. 925. (c) A demurrer to the evidence admits as true every fact and circumstance which the evidence adduced by plaintiff tends to prove, and the plaintiff is entitled to the benefit of every inference of fact which may reasonably be drawn therefrom. Black v. Fidelity & Guaranty Co., 290 S.W. 429; Morris v. Cement Co., 19 S.W. (2d) 865; Stauffer v. Railway Co., 243 Mo. 305; Conley v. Railway Co., 284 S.W. 180; Crowley v. Frisco, 18 S.W. (2d) 541; Troll v. Drayage Co., 254 Mo. 332. (d) The appellate court will confine its examination to the ground specified in the record as the reason for granting a new trial. Standard Milling Co. v. Transit Co., 122 Mo. 258; Davis v. Veneer Co., 20 S.W. (2d) 928. (e) The appellate court will reverse and remand the case with directions to set aside the order granting a new trial and to re-enter the judgment on the verdict, where trial court erred on the ground stated in the order made of record. Davis v. Veneer Co., 20 S.W. (2d) 928; Kelley v. Ry. Co., 282 S.W. 480; Block v. U.F. & G. Co., 290 S.W. 429; Manthey v. Kellerman, 277 S.W. 927; Yuronis v. Wells, 17 S.W. (2d) 518; Benjamin v. Railroad, 245 Mo. 609.

Powell C. Groner, Charles L. Carr, E.E. Ball and Harding, Murphy & Tucker for respondent.

(1) The court did not err by granting defendants a new trial. (a) There was no evidence tending to establish the charge of negligence in the petition and the court was right in holding that the demurrer should have been sustained. (b) The evidence of plaintiff himself, as well as all the other evidence in the case, affirmatively disproved the charge of negligence. (c) Where there is no evidence of negligence, it becomes the duty of the court to declare as a matter of law that there was nothing for the jury to pass upon. (d) The humanitarian rule did not obtain in the instant case. Plaintiff's evidence barred him from invoking it. (e) Plaintiff's evidence must be accepted as true. The testimony on the part of defendants did not aid plaintiff, but on the contrary, conclusively established the absence of the negligence charged. (f) The motorman was guilty of no negligence after he saw plaintiff enter Summit Street. Davies v. Ry. Co., 159 Mo. 5; 26 R.C.L. 1075; Patterson v. Ins. Co., 164 Mo. App. 157; Craine v. Street Rys., 246 Mo. 393; Hatchett v. Rys. Co., 175 S.W. 878; Skirvin v. McKamey, 237 S.W. 858; Arel v. Fire Ins. Co., 195 Mo. App. 165; Gunder v. Huggans, 233 Pac. 901; Robenon v. Turner, 268 S.W. 341; Northwest Securities Co. v. Schneckloth, 202 S.W. 97; Boudeman v. Arnold, 200 Mich. 162; Link v. Jackson, 158 Mo. App. 63; Henderson v. Ry. Co., 248 S.W. 989; Vandeventer v. Railway, 177 S.W. 838; Conrad v. Railway, 89 Mo. App. 539; Thompson v. Const. Co., 295 S.W. 528; Butler v. U. Rys. Co., 293 Mo. 268; Strutman v. Railways, 238 S.W. 818; Tuck v. Railway, 217 Mo. App. 442. (2) The court properly sustained the motion for new trial for the reason that the court erred in failing to give a peremptory instruction in favor of defendants at the close of plaintiff's evidence and again at the close of all the evidence. (3) Plaintiff's petition is based solely on the last-chance doctrine. That was the sole issue submitted to the jury. Defendants struck at that theory at every available opportunity. The demurrer was not waived. The court had a right to grant the new trial on the ground that he had made a mistake in overruling the demurrer. He had a right to do this either upon defendants' motion or his own motion.

ATWOOD, C.J.

This appeal was first heard in Division Number 2 where an opinion was written by Commissioner COOLEY. One judge concurring, another voting dubitante and the third judge being absent, the cause was transferred to Court en Banc, where it was heard and the divisional opinion adopted as the opinion of the Court en Banc. It appearing that error alleged in defendant's motion for a new trial, but not presented in Division and therefore not dealt with in the opinion, was presented at this hearing en Banc, respondent's motion for rehearing was sustained and after this rehearing the case came to the writer on reassignment. We have carefully considered the divisional opinion in the light of the whole record and all pertinent objections urged by respondent. Finding no fault with its treatment of the matters reached, we adopt all except the concluding paragraph of this opinion, and set forth the adopted portion as follows, without enclosing same in quotation marks.

This is an appeal by plaintiff from an order of the Circuit Court of Jackson County, sustaining defendants' motion for a new trial in an action for personal injuries wherein plaintiff recovered a verdict for $10,000.

The suit was originally brought against Francis M. Wilson and Fred W. Fleming, Receivers of the Kansas City Railways Company. Before the trial, by stipulation of all parties, the present defendant, which had acquired the street railway property and assumed the liabilities of the original defendants, was substituted for the original defendants and entered its appearance and the cause proceeded against it as the defendant. At the time of plaintiff's injury the street railway system of Kansas City was operated by the receivers, but since no point is made regarding the substitution of the present defendant, respondent, and its responsibility for the acts of the receivers, we shall herein for convenience of reference treat it as having been in control at all times involved.

Plaintiff's petition presents a case based upon the...