State v. Trimble

• Decision Date: 09 April 1923
• Docket Number: No. 23795.,23795.
• Citation: 250 S.W. 396
• Parties: STATE ex rel. SHAW TRANSFER CO. v. TRIMBLE et al.
• Court: Missouri Supreme Court

250 S.W. 396

STATE ex rel. SHAW TRANSFER CO. v. TRIMBLE et al.

No. 23795.

Supreme Court of Missouri, Division No. 2.

April 9, 1923.

Certiorari to Kansas City Court of Appeals.

Certiorari by the state of Missouri, on relation of the Shaw Transfer Company, against Francis H. Trimble and others, Judges of the Kansas City Court of Appeals, and Elsebeth Jepson, to quash the record of the Kansas City Court of Appeals in the case of Jepson v. Shaw Transfer Company (243 S. W. 370). Writ of certiorari quashed.

Guthrie & Conrad and. Hale Houts, all of Kansas City, for relator.

T. J. Madden, Harry R. Freeman, and W. H. Semler, all of Kansas City, for respondents.

DAVIS, C.

Certiorari to the Kansas City Court of Appeals. Suit for damages for personal injuries. Plaintiff recovered a verdict and judgment for $7,400. The Kansas City Court of Appeals affirmed the judgment. Relator seeks to quash the record of that court because the opinion (reported as Jepson v. Shaw Transfer Co., 243 S. W. 370) is contrary to certain ruling decisions of this court.

A brief statement of facts, taken from the opinion, show that on November 27, 1919, plaintiff, a woman 39 years of age, was riding with her husband and others in a Ford automobile, going in a southwesterly direction, on Southwest boulevard, near its intersection with Broadway, both being public streets in Kansas City, Mo. When the Ford car reached Broadway it was run into by a taxicab owned by the defendant, resulting in serious injury to the plaintiff. Plaintiff's evidence tends to show that the taxicab was running at a speed of from 20 to 30 miles an hour at the intersection of Broadway and Southwest boulevard. The evidence shows that the maximum rate of speed permitted by ordinance at This intersection was 10 miles per hour.

I. Relator here contends that the Kansas City Court of Appeals erred in refusing to hold plaintiff's instruction P-1 error, because it contravenes the rule of law found in Kelley v. Railroad, 75 Mo. 138, loc. cit. 142; Warner v. Railroad, 178 Mo. 125, loc. cit. 134, 77 S. W. 67; Harper v. Terminal Co., 187 Mo. 575, loc. cit. 586, 86 S. W. 89, and Kane v. Missouri Pac. R. Co., 251 Mo. 13, loc. cit. 29, 157 S. W. 644. Instruction P-1 is as follows:

"The court instructs the jury that, if you believe and find from the evidence that the driver of the taxicab was driving the same on the left side—that is, the west side of Broadway—as he entered the intersection of that street with the Southwest boulevard and as he approached the point of collision, and if you further believe and find from the evidence that, as he entered said intersection and approached the point of collision, he was running the taxicab 20 miles or more per hour, and if you further believe and find from the evidence that such rate of speed was negligent, under all the facts and circumstances which you find to be shown in evidence, and that, as a direct result of said negligence (if any) said taxicab collided with the Ford car in which plaintiff was thereby injured, then your verdict should be in favor of the plaintiff, unless you further believe and find from the evidence that she too was negligent and that such negligence (if any) on her part contributed to said collision."

Relator contends that the opinion is in conflict with the above decisions for that:

"While the speed of 20 miles an hour at a place where the maximum speed, authorized by ordinance, was 10 miles an hour, might have been found to be the proximate cause of collision and of plaintiff's injury, the instruction did not require the jury to find that this variation in speed was the proximate cause, but authorized them to find that the negligence submitted was the proximate cause and the negligent act as submitted was a speed of 20 miles an hour as against a speed a fraction less than 20 miles an hour."

In Kelley v. Railroad, supra, the facts show that plaintiff stepped on the track in front of an engine without looking or listening. Held, that where an ordinance prohibited an engine from running more than 6 miles per hour, there was no ground for recovery, unless the evidence connected the violation of the ordinance with the accident as a cause.

In Warner v. Railroad, supra, the physical facts show that, if plaintiff had been sitting in the cart when the car passed, he could not possibly have been hurt, for only the ends of the shafts were on the track. Held there must be direct causal connection between the negligent act and the injury, and the negligence must be the proximate cause of the injury.

In Harper v. Terminal Co., supra, the cause was tried on the theory, first, of a violation of an ordinance requiring a freight train to be manned with brakemen at their posts. Held, if it be conceded that the brakeman was not in proper position and that such failure was negligence per se, yet, if there was no causal connection between such negligence and Harper's death, the negligence became innocuous.

In Kane v. Railroad, supra, the question was whether the negligent failure to provide on an engine, splashers and side bearings, was the proximate cause of the derailment. Held:

"The rule is elemental that the burden remains with plaintiff to the end of the case to establish by proof not only the fact of the negligence averred, but also to show a direct connection between such negligence and the injury."

We do not find the state of facts in the cases relied upon by relator similar to the state of facts related by the Court of Appeals, nor has it announced a rule of law that contravenes the latest previous rulings of this court. The opinion of the Court of Appeals say:

"The jury, therefore, had nothing to do with any speed between 10 miles an hour and 20 miles an hour, and it therefore makes no difference what they might have thought in regard to a speed of a fraction less than 20 miles per hour in view of the fact that there was no evidence that the taxicab was being driven at such a speed. The jury could find any speed in excess or including 20 miles an hour the proximate cause of the injury."

The instruction requires the jury to find that the taxicab was running at a speed of 20 or more miles an hour, that such speed was negligent, and that it directly resulted in the collision and injury. The opinion, in this regard, Is not in conflict with any decision of this court.

II. Relator next contends that instruction P-1 was erroneous in submitting to the jury the alleged act of defendant's driver in operating the cab on the wrong side of the street, and that it was in conflict with Harrington v. Dunham, 273 Mo. 414, loc. cit. 428, 429, 202 S. W. 1066, because it did not require the jury to find that, as the proximate cause of the injury, the taxicab was being driven on the left or west side of Broadway. The instructions quoted from Harrington v. Dunham authorized the jury to find a verdict for defendants if plaintiff was negligent, although his negligence did not in any manner contribute to his injury, or if plaintiff was guilty of any negligence which contributed to his injury. In the present case the jury were required to find that defendant was driving on the left or west side of the street. This burden plaintiff did not have to assume in this instruction,. as the Court of Appeals found. As the instruction did not predicate negligence on this finding, it amounts to nothing more than requiring the jury to find that the taxicab was being driven along Broadway. The facts in the aforesaid case and the conclusions of law to be drawn are unlike the case at bar. We find no conflict.

III. Defendant offered four instructions numbered D-5, D-6, D-7, and D-8, which were refused but afterwards given as amended by the court. We quote from the opinion of the Court of Appeals:

"These instructions sought to have the jury find that the negligence, if any, of the driver of the Ford car was to be imputed to plaintiff, and each to direct a verdict for defendant on that ground, and therefore were properly refused. Instruction No. 5 submits the question as to whether the driver of the Ford car was going at a speed in excess of 10 mike per hour; instruction No. 6 submits whether the driver of the car by the exercise of ordinary care could have stopped the car or turned or swerved the car aside, and thus have avoided the collision;...