Stofer v. Harvey

• Decision Date: 24 June 1918
• Docket Number: No. 12923.,12923.
• Citation: 204 S.W. 587
• Parties: STOFER v. HARVEY et al.
• Court: Missouri Court of Appeals

204 S.W. 587

STOFER v. HARVEY et al.

No. 12923.

Kansas City Court of Appeals. Missouri.

June 24, 1918.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by Alfred B. Stofer against Ford F. Harvey and Robert J. Dunham, receivers of the Metropolitan Street Railway Company, and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Chas. A. Stratton, of Kansas City, for appellants. Frank Friedberg, of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $1,000 for the loss of his wife's services, and defendant has appealed.

The negligence charged in the petition was that defendants' servants carelessly and negligently allowed an Argentine car, on which plaintiff's wife was a passenger, to collide with a Stockyards car on the same track, resulting in the injury. This was a charge of general negligence, and the res ipsa loquitur doctrine applied. Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S. W. 932, 132 Am. St. Rep. 588, and cases therein cited. Plaintiff put on witnesses tending to show how the accident occurred. This evidence did not show the precise cause of the accident, and plaintiff did not lose or waive his rights under that doctrine, because, instead of resting his case solely upon it, he undertook to go further and show particularly the cause of the accident. Price v. Met. St. Ry. Co., supra, 220 Mo. loc. cit. 456, 119 S. W. 932, 132 Am. St. Rep. 588; Statffer v. Railroad., 243 Mo. loc. cit. 325, 326, 147 S. W. 1032; Dollie C. Mining Co. v. Railroad, 194 Mo. App. loc. cit. 41, 182 S. W. 1055.

There was no error in the giving of plaintiff's instructions P-2, P-3. Plaintiff's instruction P-2 told the jury that if the defendants negligently allowed the Argentine car to violently collide with the Stockyards car, and as a result thereof plaintiff's wife was injured, and plaintiff sustained damages, and that defendants' employés by the exercise of the highest practical degree of care could have prevented such collision, such facts would constitute negligence. Plaintiff's instruction P-3 told the jury that if they found plaintiff's wife was a passenger upon the Argentine car, and was injured by that car colliding with a Stockyards car, and if they found that defendants failed to use the highest degree of care, etc., the burden of proof was upon the defendants to rebut the presumption of negligence thus made, and to show that there was no negligence on their part. Plaintiff's instruction P-2 did not say that the burden of proof was upon plaintiff to show that defendants were negligent, and the giving of it was not an abandonment of the res ipsa loquitur theory. It is true defendants' instruction D-9 conflicted with plaintiff's instruction P-2. Defendants' said instruction told the jury that the burden was on the plaintiff to prove that defendants were guilty of negligence, and this burden continued throughout the trial. Of course, this was not the law. Price v. Met. St. Ry. Co., supra, and cases therein cited. Defendants cannot complain of an error invited by them.

The court properly refused to give defendants' instruction D-14. This instruction sought to tell the jury that, if they believed the car in question became...