State ex rel. Kansas City Public Service Co. v. Bland

• Decision Date: 03 December 1945
• Docket Number: 39534
• Citation: 191 S.W.2d 660,354 Mo. 868
• Parties: State ex rel. Kansas City Public Service Company, a Corporation, Relator, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals, Pearl Bresler, party adversely affected
• Court: Missouri Supreme Court

191 S.W.2d 660

354 Mo. 868

State ex rel. Kansas City Public Service Company, a Corporation, Relator, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals, Pearl Bresler, party adversely affected

No. 39534

Supreme Court of Missouri

December 3, 1945

Rehearing Denied January 8, 1946.

Original Proceeding in Certiorari.

WRIT QUASHED AND JUDGMENT AFFIRMED.

Writ quashed and judgment affirmed.

Charles L. Carr and Cooper, Neel, Sutherland & Rogers for relator.

(1) The trial court erred in setting aside the verdict and judgment for the defendant and in granting plaintiff's motion for new trial as aforesaid for the reason that defendant's said Instruction 3 defining term "imminent peril" clearly and properly defines said term as not meaning "remote, uncertain, contingent danger"; not meaning "so far as the plaintiff is concerned, avoidable danger," but meaning "danger that is immediately impending and that admits of no time for deliberation on the part of the person in peril between its appearance and the impending calamity"; such definition of "imminent peril" under the Missouri humanitarian doctrine having been approved and reapproved in numerous cases by the Supreme Court of Missouri and the appellate courts of Missouri. Byrnes v. Poplar Bluff Printing Co., 74 S.W.2d 20; Baker v. Wood, 142 S.W.2d 83; Wallace v. St. J Ry., L., H. & P. Co., 336 Mo. 282, 77 S.W.2d 1011; Ziegelmeier v. East St. Louis & S. Ry. Co., 330 Mo 1013, 51 S.W.2d 1027; Banks v. Morris & Co., 302 Mo 254, 257 S.W. 482; Hutchison v. Thompson, 167 S.W.2d 96; Freed v. Mason, 137 S.W.2d 673; Camp v. Kurn, 235 Mo.App. 109, 142 S.W.2d 772; Swain v. Anders, 235 Mo.App. 125, 140 S.W.2d 730; Roach v. Kansas City Pub. Serv. Co., 141 S.W.2d 800; Gosney v. May Lbr. & Coal Co., 179 S.W.2d 51; Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 555; Lotta v. Kansas City Pub. Serv. Co., 117 S.W.2d 296; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Clark v. Atchison, T. & S.F. Ry. Co., 319 Mo. 865, 6 S.W.2d 954; Robards v. Kansas City Pub. Serv. Co., 177 S.W.2d 709; Thomasson v. Henwood, 235 Mo.App. 1211, 146 S.W.2d 88. (2) Defendant's Instruction 3 could not have prejudiced the plaintiff. Dove v. Atchison, T. & S.F. Ry. Co., 349 Mo. 798, 163 S.W.2d 548. (3) Duty not limited to inescapable peril -- after auto stalled on track. See authorities cited under (1). (4) Duty not limited to time after auto started from stop sign. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. (5) Plaintiff under her Instruction A was seeking to recover on a theory broader than her testimony justified and contrary thereto -- her testimony being affirmatively to the effect that she was in imminent peril, not on account of her being oblivious to her peril but because she was in inescapable peril with full knowledge thereof, while her Instruction A submitted a broader imminent peril and broader danger zone that could only be supported and justified by evidence of obliviousness on plaintiff's part and there was no such evidence either by or on behalf of the plaintiff. Long v. Binnicker, 228 Mo.App. 193, 63 S.W.2d 831; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. (6) Relator's Instruction 3 is a correct instruction, properly defining the term "imminent peril" in a humanitarian submission, and respondents held contrary to last controlling decisions of this court in ruling said instruction as prejudicially erroneous. Respondents admit that said Instruction 3 is in accord with last controlling decisions of this court, stating "defendant is correct in saying that, viewing all of the cases together, the definition of imminent peril set forth in its instruction is proper from a legal standpoint," but then refused to follow said controlling decisions on the ground that said definition instruction might have been confusing to the jury and, therefore, the giving thereof constituted prejudicial error. In so ruling, respondents made a distinction without a difference and held directly contrary to controlling decisions of this court. Byrnes v. Poplar Bluff Printing Co., 74 S.W.2d 20; Wallace v. St. Joseph Ry., L., H. & P. Co., 77 S.W.2d 1011; Roach v. Kansas City Pub. Serv. Co., 141 S.W.2d 800; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Baker v. Wood, 142 S.W.2d 83; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Hendrick v. Kurn, 179 S.W.2d 717; Johnson v. Hurck Delivery Serv., Inc., 187 S.W.2d 200. (7) As plaintiff's evidence, hereinbefore set forth affirmatively and conclusively shows that the plaintiff was not oblvious of her peril, the limited humanitarian doctrine applies in this case and the duty of the street car operator thereunder did not commence until she was in a position of unavoidable danger so far as anything she could do was concerned. Respondents, however, erroneously criticise relator's Instruction 3 so stating and hold the instruction as confusing in telling or intimating that the plaintiff could not recover if she had an opportunity to alight from the auto and avoid injury. The instruction is in accord in this respect with the last controlling decisions of this court and respondents held contrary to said controlling decisions. Clark v. Atchison, T. & S.F. Ry. Co., 6 S.W.2d 954; Gosney v. May Lbr. & Coal Co., 179 S.W.2d 51; Melenson v. Howell, 130 S.W.2d 555; Lotta v. Kansas City Pub. Serv. Co., 117 S.W.2d 296; Smithers v. Barker, 111 S.W.2d 47. (8) Respondents erroneously state that Instruction 3 injects the question of contributory negligence. No mention is made of contributory negligence in the instruction. The instruction merely and properly limits the duty of the defendant under the humanitarian doctrine. In ruling Instruction 3 as confusing and erroneous for this reason respondents hold contrary to the last controlling decisions of this court. Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13. (9) As Instruction 3 is proper from a legal standpoint, it was the duty of plaintiff to have requested a clarifying instruction, which he did not do. In ruling these matters to the contrary respondents held contrary to last controlling decisions of this court. Dove v. Atchison, T. & S.F. Ry. Co., 163 S.W.2d 548; Schneider v. Dubinsky Realty Co., 127 S.W.2d 691; Williams v. Guyot, 126 S.W.2d 1137; Long v. Rogers, 185 S.W.2d 863.

White & Hall for respondent.

(1) Defendant's Instruction 3 erroneously defined the term "imminent peril." The trial court did not err in giving a new trial. Perkins v. Terminal Ry. Assn., 102 S.W.2d 915, 340 Mo. 868; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Brown v. Wheelock, 83 S.W.2d 911; Adams v. Thompson, 178 S.W.2d 779; Borgstede v. Waldbauer, 83 S.W.2d 373, 337 Mo. 1205; Byrnes v. Poplar Bluff Printing Co., 74 S.W.2d 20; Davies v. Mann, 10 M. & W. 546; Morse v. Consolidated Underwriters, 163 S.W.2d 586, 349 Mo. 785; Hunter v. Fleming, 7 S.W.2d 749; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Perkins v. Terminal Ry. Assn., 102 S.W.2d 915; Bode v. Wells, 15 S.W.2d 335, 322 Mo. 386; Brown v. Alton R. Co., 151 S.W.2d 727; Angle v. Fleming, 259 S.W. 143; Millhouser v. Kansas City Pub. Serv. Co., 55 S.W.2d 673, 331 Mo. 933.

OPINION

Ellison, J.

Certiorari to the respondent judges of the Kansas City Court of Appeals bringing up for review their opinion and the whole record in Bresler v. K.C. Pub. Serv. Co. under Sec. 10, Art, V, Const. 1945, and our Rule 2.06. The opinion is reported in 186 S.W.2d 524, where the facts are fully stated. The action in the circuit court was for damages for personal injuries sustained by the plaintiff as the result of a collision of one of the defendant-relator's streetcars with an automobile wherein she was seated, which at the time was stalled on relator's streetcar track at a cross thoroughfare.

The plaintiff's evidence showed she first saw the approaching streetcar when it was about 823 feet away. This was just after her husband, with whom she was sitting, had stopped the automobile at a warning sign and then started slowly across the streetcar tracks. Their seven year old twin daughters were in the back seat. The engine "went dead" and the automobile stopped with the back wheels between the rails of the track when the streetcar was 450 feet away. The husband made ineffectual efforts to start again. Plaintiff again saw the streetcar when it was 225 feet away. The motorman was clanging the bell and waiving his arms at them. The streetcar was traveling about 25 miles per hour. She turned toward her children, who had started crying, and did not see the streetcar again. It hit the rear wheel of the automobile and shoved it around 25 feet, the streetcar traveling 45 feet after the collision. At the stated speed it could have been stopped in 45 or 50 feet. The relator's evidence was that the automobile did not stop at the warning sign; that it stalled on the track when the streetcar was 80-100 feet away; and that the motorman did everything possible to avert the collision.

Plaintiff's case was submitted to the jury solely on the humanitarian doctrine. At relator's request the court gave an instruction No. 3, defining "imminent peril." The jury found for the defendant-relator, but the trial court sustained plaintiff's motion for new trial on the ground that the instruction was erroneous. On relator's appeal the respondent judges' opinion affirmed that order. The only issue raised in this review proceeding is whether respondents erred in so ruling and thereby contravened our decisions. The instruction was as follows (italics ours):

"The court instructs the jury that the term, 'imminent peril' does not mean remote, uncertain, contingent danger nor, so far as the plaintiff is concerned, avoidable danger, but means danger that is immediately impending and that admits of no...