State ex rel. Fleming v. Bland

• Decision Date: 29 March 1929
• Docket Number: No. 29033.,29033.
• Parties: THE STATE EX REL. FRED W. FLEMING and FRANCES M. WILSON, Receivers of Kansas City Railways Company, v. EWING C. BLAND ET AL., Judges of Kansas City Court of Appeals.
• Court: Missouri Supreme Court

15 S.W.2d 798

THE STATE EX REL. FRED W. FLEMING and FRANCES M. WILSON, Receivers of Kansas City Railways Company, v. EWING C. BLAND ET AL., Judges of Kansas City Court of Appeals.

No. 29033.

Supreme Court of Missouri, Division No. 1.

March 29, 1929.

Certiorari to Kansas City Court of Appeals.

OPINION AND JUDGMENT QUASHED.

Charles L. Carr, Watson, Gage & Ess, E.M. Tipton and E.E. Ball for relators.

(1) Respondents erred in ruling that Mrs. Murphy was entitled to recover under the humanitarian rule, and in failing and refusing to follow the latest controlling decisions of this court. State ex rel. v. Reynolds, 233 S.W. 230; Butler v. Railroad, 293 Mo. 267. (2) Respondents erred in ruling that relators were liable under the humanitarian doctrine if their motorman's inability to avoid the injury was caused by his negligence before the peril arose. In so holding respondent judges have failed and refused to follow the latest controlling opinions and decisions of this court, to-wit: Banks v. Morris & Co., 302 Mo. 267; Keele v. Railroad, 258 Mo. 79; Clark v. Ry. Co., 6 S.W. (2d) 960; Vulgamott v. Trimble, 300 Mo. 92; Alexander v. Railroad, 4 S.W. (2d) 888; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720; Davis v. Railway Co., 159 Mo. 1; State ex rel. v. Reynolds, 233 S.W. 230. (3) Respondents erred in ruling that Instruction 3 was a proper declaration of law in a case submitted solely under the humanitarian rule; that it was not confusing or misleading, and was harmless error, and, in approving the giving of said instruction, respondents failed and refused to follow the latest controlling decisions of this court which are in direct conflict with said holding, to-wit: Wallace v. Burkhart, 3 S.W. (2d) 387: Seithel v. Dairy Co., 300 S.W. 280; Kuhlman v. Water Co., 307 Mo. 607; State ex rel. v. Ellison, 270 Mo. 645; Landon v. United Rys. Co., 237 S.W. 497; Maissur & Tibbetts v. Ritchie, 143 Mo. 613; Schulz v. Smercina, 1 S.W. (2d) 120; Woosley v. Wabash, 270 S.W. 871; Thomas v. Babb, 45 Mo. 384; Sullivan v. Railroad, 88 Mo. 186; Modesett v. McPike, 74 Mo. 636; Flucks v. Railroad, 143 Mo. App. 17.

Harry G. Kyle and Walter A. Raymond for respondents.

(1) The holding of the Court of Appeals that the demurrer was properly overruled is not in contravention of any opinion of the Supreme Court, but is in accord with such opinions. Lackey v. United Rys. Co., 288 Mo. 956; Banks v. Morris & Co., 302 Mo. 254; Harrington v. Dunham, 273 Mo. 414; Chawkley v. Wabash, 297 S.W. 24. (2) There is no conflict between this opinion and any opinion of the Supreme Court with respect to inability to avoid the injury caused by negligence before the peril arose. Logan v. Railroad, 300 Mo. 611; Schulz v. Smercina, 1 S.W. (2d) 113; Kame v. Railroad, 254 Mo. 237; Frick v. Ry. Co., 75 Mo. 595; State ex rel. Wabash v. Trimble, 260 S.W. 1003; Riska v. Union Depot Co., 180 Mo. 168; Holmes v. Mo. Pac. Ry. Co., 207 Mo. 149; Maher v. Railroad, 64 Mo. 267; Dunkman v. Wabash, 95 Mo., 232; Sullivan v. Mo. Pac., 117 Mo. 214; Abromowitz v. United Rys., 214 S.W. 120; Goodwin v. Eugas, 290 Mo. 673; Mason v. United Rys., 246 S.W. 325; Burke v. Pappas, 293 S.W. 146; Williams v. K.C. Elev. Ry., 149 Mo. App. 489. (3) Respondents created no conflict in holding the giving of Instruction 3 was not reversible error. Ellis v. Met. St. Ry., 234 Mo. 676; Quinley v. Traction Co., 180 Mo. App. 287; Cool v. Peterson, 189 Mo. App. 717; Burdoin v. Trenton, 116 Mo. 358; Jerowitz v. Kansas City, 104 Mo. App. 202; Brown v. Ry. Co., 227 S.W. 1069; Lammert v. Wells, 282 S.W. 490; Treadway v. United Rys., 282 S.W. 445.

RAGLAND, J.

Certiorari. In this proceeding relators seek to have quashed the opinion and judgment of the Kansas City Court of Appeals in the case of Celia I. Murphy, plaintiff, against Fred W. Fleming and Frances M. Wilson, Receivers of the Kansas City Railways Company, defendants, lately pending before that court on appeal from the Circuit Court of Jackson County, and wherein it affirmed the judgment of the circuit court in favor of the plaintiff.

The suit was for personal injuries received by plaintiff when struck by one of defendants' street cars. She had been a passenger on another of defendants' cars; after alighting therefrom she walked around the rear end of the car and started across the street; she had proceeded but a few steps when she was struck by a car coming from the opposite direction on a parallel track. There was evidence tending to show that it was the custom and practice of passengers alighting from a car at the point where plaintiff got off to pass behind or in front of the standing car, and that it was the custom and practice of defendants to require their motormen operating a car, when passing a standing street car unloading passengers, to go very slow, not faster than three and a half or four miles an hour.

There was evidence on the part of the plaintiff that the car which struck her was 100 feet away when she came around the end of the car from which she had alighted and started across the track; that it was running at the rate of eight or ten miles an hour; that while running at that rate it could have been stopped within from fifteen to eighteen feet; and that, had it been running at the rate of three or four miles an hour, it could have been stopped within five or six feet.

The motorman testified that the car was going about three and a half or four miles an hour; that it was about twelve or fourteen feet from plaintiff when he first saw her start across the track; that he could have stopped the car running at three and a half or four miles an hour within a distance of twenty-five or thirty feet; and that as soon as he saw plaintiff starting across the track he threw the air in emergency and the car ran about fourteen feet after it struck plaintiff.

At plaintiff's instance the case went to the jury on negligence under the humanitarian doctrine only. As bearing on the issue of whether defendants' motorman, after discovering plaintiff's peril, could have stopped the car in time to have avoided injuring her, the circuit court at plaintiff's request gave the following instruction:

"The court instructs the jury that the practice of passengers alighting at rear exits of street cars and passing behind the street car to cross the tracks is of such frequent occurrence that it should be anticipated as likely to follow in every instance and the motorman operating a street car past a regular stopping place where another street car traveling in the opposite direction has stopped to discharge passengers should operate said street car at such a rate of speed as to permit an almost instantaneous stop on the appearance of a person coming from behind another street car."

The giving of the instruction was assigned as error in the Court of Appeals. In passing upon that assignment the court said:

"In view of the fact that the car was approaching a standing street car receiving and discharging passengers, the motorman had no right to expect a clear track. It was his duty to be on the lookout for persons who might come from behind the standing street car and go upon the track, and to operate his car at such a rate of speed that he could by the exercise of ordinary care, with the means at hand, and with safety to those on his car, stop said car or slacken the speed thereof, in time to avoid injuring persons who might come upon the track from behind said standing car, after he saw, or by the exercise of ordinary care could have seen, such persons on the track, in a position of peril, and oblivious to the near and dangerous approach of the car. If, in violation of that duty, he, as the evidence shows, ran his car from eight to ten miles per hour, and thus placed himself in a position where he could not avoid striking plaintiff after he discovered her perilous position, he is in the same situation as if he had discovered her peril in time, by the exercise of ordinary care, to have avoided striking her, but failed to do so... .

"It would serve no purpose for the motorman to keep a lookout for persons who might come upon the track, if he were operating his car at such a rate of speed that he could not, by the exercise of ordinary care, with the means at hand, avoid striking them, in event he discovered them in a position of peril on the track.

"The law under such circumstances is that although the motorman could not avoid the injury by the use of ordinary care after he saw or by the exercise of ordinary care could have seen the plaintiff in a position of peril on the track, the defendant is nevertheless liable if the motorman's inability to avoid the injury was caused by his negligence before the peril arose.

"The instruction under consideration told the jury that it was the motorman's duty to operate his car past the standing car, at such a rate of speed as to permit of an almost instantaneous stop.

"This instruction does not correctly define the duty of the motorman. It was not his duty, as a matter of law, to operate his car at such speed that he could stop it almost instantly, but to so operate it that he could by the exercise of ordinary care, in the manner heretofore stated, avoid injuring persons coming upon the track from behind the standing car."

The court held that the error in the instruction which it pointed out, in view of other instructions given, was harmless.

The holding of the Court of Appeals that defendants' prior negligence might, or should be, taken into consideration in determining whether they were guilty of negligence under the humanitarian doctrine contravenes many decisions of this court. A few of them will be noted.

Sullivan v. Railroad, 117 Mo. 214, was a case in which a large woman, while attempting to cross the railroad track in front of an approaching train, fell and was run over before she could extricate herself. An instruction submitting the case under the humanitarian doctrine concluded as follows:

"And in this...