Stofer v. K.C. Pub. Serv. Co.

• Citation: 41 S.W.2d 614
• Decision Date: 15 June 1931
• Docket Number: No. 17227.,17227.
• Parties: ALMA STOFER, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE CO., APPELLANT.
• Court: Court of Appeal of Missouri (US)

41 S.W.2d 614

ALMA STOFER, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE CO., APPELLANT.

No. 17227.

Kansas City Court of Appeals. Missouri.

June 15, 1931.

Appeal from Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

AFFIRMED.

Dwight Roberts and Ira B. McLaughlin for respondent.

Charles L. Carr and Louis R. Weiss for appellant.

BOYER, C.

Action for damages. We will refer to the parties as plaintiff and defendant instead of respondent and appellant. Plaintiff sued on account of personal injuries alleged to have been caused by the negligence of defendant when plaintiff fell from a motor bus. The petition alleges and the evidence shows that defendant was a common carrier of passengers for hire and operated motor busses in the pursuit of its business. On October 1, 1927, plaintiff was a passenger upon a motor bus operated by defendant. Signal was given and the bus stopped at a regular place to permit her to alight. In leaving the bus plaintiff fell in the street and was severely injured. The negligence charged is the following:

"That while she was in the act of stepping from the platform and step of said bus defendant negligently caused and permitted said bus to suddenly and unexpectedly start, thereby throwing and causing plaintiff to fall to the pavement."

The answer was a general denial.

Plaintiff testified that when the bus stopped she started to get off; went to the rear door, stepped down on the first step from the floor of the car and the doors opened; that she started to raise her umbrella, the doors made a movement to close and the bus moved a little forward: that she stepped back with one foot on the floor of the car, turned her head, looked in a mirror at the driver and nodded, after which the doors opened again "and just as I raised my foot to make the step down again, the bus gave a sudden lurch forward and I fell out." Numerous witnesses called by defendant testified that after the bus stopped it remained stationary and there was no movement of it whatever until after plaintiff had fallen in the street.

The issue of fact as to whether the bus moved as alleged or did not move while plaintiff was in the act of alighting was submitted to the jury by appropriate instructions upon that issue, both by plaintiff and defendant. The jury found for plaintiff and assessed her damages at $7500. Judgment followed, defendant duly appealed, and assigns error in giving plaintiff's instructions 1 and 3, and refusing defendant's Instruction D. and that the verdict is grossly excessive. The evidence will be further noted in the course of the

OPINION.

Plaintiff's Instruction I is assailed because of an alleged prejudicial stinger in the tail of the first paragraph. The opening paragraph of the instruction is in these words:

"The court instructs the jury that if you find and believe from the evidence that on the 1st day of October, 1927, plaintiff paid her fare and became a passenger upon the automobile bus mentioned in evidence and that the same was operated by the defendant, then and in that event, you are instructed that it was the duty of the defendant to use the highest degree of care that is ordinarily exercised by very careful and skillful men under the same or similar circumstances to discharge plaintiff from said bus at her destination in a safe manner, and the failure to use such care would constitute negligence and the defendant would be responsible for all injuries suffered by plaintiff as a direct result of such negligence, however slight the same might be."

The criticism of defendant is directed solely at the concluding words "however slight the same might be." There is no objection to any other feature of the instruction. It further directs the jury, and proceeds:

"If, therefore, you further find and believe from the evidence... that said bus stopped for the purpose of permitting passengers to alight therefrom at said usual stopping place, if you find said place was a regular stopping place for said bus; that thereafter and at said time and place plaintiff attempted to alight from said bus and while she was in the act of alighting therefrom, if you so find the facts, said bus suddenly or unexpectedly started and that thereby, if you so find the facts, plaintiff was thrown or caused to fall to the pavement of said Linwood Boulevard, and that as a direct result of such fall, if you find she did so fall, plaintiff received bodily injuries, then and in that event you are instructed that such occurrence creates a presumption if negligence for which the defendant is liable and the burden is upon defendant to disprove such presumption... .

"The term `negligence' as used in this instruction means the failure to use the highest practicable degree of care and caution that very cautious and skillful men, engaged in a like business, would use under the same or similar circumstances."

Instruction B given on behalf of defendant is this: "The court instructs the jury that if you believe and find from the evidence that at the time and place mentioned in the evidence the bus came to a stop at the regular stopping place on Linwood near Brooklyn Avenue; and if you further believe and find from the evidence that thereafter plaintiff undertook to alight from said bus while said bus was stationary, and that said bus did not start or move while plaintiff was in the act of alighting therefrom, if so, then your verdict must be for the defendant and against plaintiff. And this is true even though you believe and find from the evidence that plaintiff fell from the steps of said bus."

With reference to the liability of defendant the contested question of fact was simply whether the bus started, as plaintiff alleged, or whether it remained stationary, as defendant asserts, while plaintiff was attempting to alight. This is shown by the manner of presentation of that issue in the foregoing instructions as well as by a voluminous record of testimony. It was the only contested question, aside from that of the nature and extent of plaintiff's injury. We state this as preliminary to a consideration of defendant's point that the instruction contains reversible error because it holds defendant responsible for negligence "however slight the same might be."

The effect of appellant's argument is that to hold defendant responsible for slight negligence would place upon it the duty to exercise extraordinary care and a greater burden than it was required to carry because the law requires only the exercise of the highest degree of care; that defendant is not liable for a failure of extraordinary care, but only for a failure to exercise that degree of care usually exercised by very careful persons under the same or similar circumstances; that there are no degrees of negligence recognized by the law, and that the term "slight negligence" used in an instruction opens wide the field of speculation and authorizes the jury to render a verdict according to its own whim and for any conduct that it might determine to be actionable. The phrase in the instruction "however slight the same might be," considering the connection in which used, is not as portentous as might at first appear, nor as potential for harm as appellant insists. Degrees of negligence are unknown to our present day jurisprudence as held in the cases of Young v. Railroad, 227 Mo. l.c. 332, and State ex rel. v. Haid, 25 S.W. (2d) l.c. 94, cited by appellant. But these authorities and similar ones which discard the ancient fiction of degrees of negligence, such as slight, ordinary, and gross, tell us nothing in reference to whether an instruction similar to the one under review contains reversible error. Appellant says the case of Magrane v. St. Lonis & Suburban Ry. Co., 183 Mo. 119, l.c. 128, has decided the question and states the law as it contends. The instruction examined in that case placed upon defendant the duty "as far as it is capable by human care and foresight, to carry such passengers safely, and the defendant is responsible for all injury resulting to such passenger from any, even the slightest, neglect or negligence." It was held that the instruction was liable to be misconstrued by a jury as meaning care to the utmost limit imaginable, and that was more than the law required. And the court further said:

"The term `even the slightest neglect or negligence' should also be avoided in an instruction. There are no degrees of negligence: there are degrees of care, and a failure to exercise the proper degree of care is negligence. The jury should not be puzzled with degrees of negligence."

It was further held that the instruction was not of injurious effect for reasons stated in the opinion. The case does not decide the question we have in hand. It is one thing to say that certain terms should be avoided and quite another to hold that their use would constitute reversible error. It is proper to refer to the context of the instruction wherein objectionable words are found, and to other instructions presenting issues to the jury, with a view of determining the probability of harmful effect from the words criticized. Instruction I clearly defines the duty of defendant in reference to the degree of care to be exercised by a carrier and correctly defines the term negligence, and required the jury to find that the bus suddenly and unexpectedly started and caused plaintiff fall and in that event there was a presumption of negligence.

Instruction B, given at the request of defendant, plainly informed the jury that if it found from the evidence that the bus did not start or move while plaintiff was in the act of alighting, that the verdict must be for the defendant. With the issues so clearly defined it is not apparent that ordinarily reasonable minds would be misled or confused or would be led into the field of speculation for any other negligence by a vagrant phrase in the body of the instruction which might be said to characterize negligence. The context...