State ex rel. Kansas City Rys. Co. v. Trimble

• Decision Date: 07 March 1924
• Docket Number: 22981
• Parties: STATE ex rel. KANSAS CITY RYS. CO. v. TRIMBLE et al., Judges
• Court: Missouri Supreme Court

260 S.W. 746

STATE ex rel. KANSAS CITY RYS. CO. v. TRIMBLE et al., Judges

No. 22981

Supreme Court of Missouri, First Division

March 7, 1924

Rehearing Denied April 7, 1924.

Chas N. Sadler, John E. Connors, E. E. Ball, and Ben L. White, all of Kansas City, for relator.

Ralph S. Latshaw, Jr., of Kansas City, for respondents.

OPINION

SMALL C. I.

This case, having been heretofore assigned, but not disposed of was reassigned to the writer. It is an application for a writ of certiorari to the Kansas City Court of Appeals, grounded upon the allegation that in a case before it, to wit, Shannon H. Conley v. Kansas City Rys. Co., said appellate court ruled contrary to the last controlling decision of this court in holding that instruction. No. 1, given for plaintiff by the lower court, did not constitute reversible error. We issued out writ on said application, and it is now before us for final determination.

It is claimed that said instruction conflicts with the well-settled rule of this court that, where the petition alleges general negligence, followed by specific charges of negligence, one or more of the specific charges of negligence must be proven and submitted in the instructions to the jury. Applegate v. Railroad, 252 Mo. 196, 197, 158 S.W. 376, and other cases.

In the case at hand it appears that the petition charged negligence as follows:

'(1) That the said agents, servants, and employees negligently and carelessly caused, allowed, and permitted said street car to run into violent contact and collision with the rear end of plaintiff's automobile, which was then and there standing still and motionless on said east rails of defendant company's as hereinbefore set forth.

'(2) That the said agents, servants, and employees of defendant company in charge of said street car negligently and carelessly allowed and permitted said street car to violently run into said plaintiff's automobile, when they saw, or by the exercise of ordinary care could have seen, plaintiff's automobile on the defendant's east rails, and standing still and motionless behind the other street car, or by the exercise of ordinary care could have discovered such facts in time, and by the exercise of ordinary care and by means of the appliances at hand to have stopped said car before striking the said automobile and in time to have prevented said collision and consequent damages to said plaintiff's automobile, but carelessly and negligently ran the same against said plaintiff's car.

'(3) That the defendant, its agents, servants, and employee negligently and carelessly failed and omitted to sound a bell or warning of any kind whatsoever when they knew, or by the exercise of reasonable care and caution should have known, that plaintiff's automobile was then and there standing still and motionless directly on the east rails of defendant company's tracks on Main street and behind another one of defendant company's street cars, and that said plaintiff's automobile was in peril of being injured if said car was not stopped.'

That said instruction No. 1 given for plaintiff was as follows:

'The court instructs the jury that, if you find and believe from the evidence that on or about January 19, 1919, plaintiff's automobile was standing still and motionless on the defendant's east or north-bound tracks on Main street, and at or near a point 100 feet south of the intersection of said Main street and Tenth street in Kansas City, Mo., and behind one of defendant's street cars then and there standing still and motionless on said east or north-bound tracks on Main street, and that, while said plaintiff's automobile was so standing still and motionless, the defendant, through its agents, servants, and employees, carelessly and negligently, and without the use of ordinary care, ran another of its street cars north on said east or north-bound tracks on Main street and towards said intersection of Main street and Tenth street, and against and upon the plaintiff's automobile, and injured and damaged the same, and if you further find and believe from the evidence that plaintiff was in the exercise of ordinary care in the use of his said automobile, at said time and place, then your verdict must be for the plaintiff.'

Also, that instruction No. 6, given for defendant in said cause, was as follows:

'The court instructs the jury that negligence is not the proximate cause of an accident, unless, under all the circumstances, the accident might have been reasonably foreseen by a man exercising ordinary care. It is not enough for the plaintiff to prove that the accident is the natural consequence of some act of negligence. The plaintiff must go further and prove that the accident must also have been the probable consequence of some specific act of negligence as defined to you in the instructions.'

In reference to the error complained of here by relator, the Court of Appeals in its opinion said:

'Complaint is made of plaintiff's instruction No. 1, because it submits to the jury general negligence, while it is claimed that the petition alleges specific acts of negligence. The petition first alleges general negligence in allowing and permitting the street car to run into and come into violent contact and collision with the rear end of plaintiff's automobile. The instruction follows the wording of this allegation. The petition then alleges a cause of action under the humanitarian doctrine, and, in the third paragraph, that the persons in charge of the street car omitted to sound a bell or give any warning. It is claimed that the petition thus worded consists of an allegation of general negligence followed by a specific charge of negligence, and consequently plaintiff's case must rest upon the specific charge, and his instruction is erroneous, defendant citing the cases of McManamee v. Ry., 135 Mo. 440, 447, 37 S.W. 119; Clark v....