Walquist v. Kansas City Railways Co.
| Decision Date | 18 February 1922 |
| Citation | 237 S.W. 493,292 Mo. 34 |
| Parties | ELSIE WALQUIST v. KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.
Reversed and remanded.
Charles N. Sadler and E. E. Ball for appellant.
(1) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by plaintiff. (a) Evidence of miscarriage, and diseased condition of ovaries and fallopian tubes was erroneous because not properly pleaded. Hall v Coal Co., 260 Mo. 370; Shafer v. Dunham, 183 S.W. 670; Martin v. Ry. Co., 204 S.W. 589; Provance v. Ry. Co., 186 S.W. 955; Smith v. Ry Co., 199 S.W. 707; Fink v. United Rys. Co., 219 S.W. 679. (b) Evidence of painful and irregular menses was erroneous because not pleaded. Bergfeld v. Dunham, 202 S.W. 253. (c) Evidence of operation was erroneous because not properly pleaded. Mahany v. Rys. Co., 228 S.W 827. (2) The court erred in giving instructions requested by plaintiff. Beave v. Transit Co., 212 Mo. 331; Roscoe v. Ry. Co., 202 Mo. 576; State ex rel. v. Ellison, 270 Mo. 653; Simms v. Dunham, 203 S.W. 652; Boles v. Dunham, 203 S.W. 408; Murdock v. Dunham, 206 S.W. 915; Kirn v. Harvey, 208 S.W. 479; Shafer v. Dunham, 183 S.W. 670; Hall v. Coal Co., 260 Mo. 351; Mahany v. Rys. Co., 228 S.W. 821.
Prince, Hamilton, Harris & Beery for respondent.
(1) The petition is amply sufficient to admit of the testimony complained of by appellant. (a) As to the admissibility of evidence of miscarriage, diseased condition of ovaries, fallopian tubes and irregular menstruation, see Mayne v. K. C. Rys. Co., 229 S.W. 387. (b) As to evidence of admissibility of operation to show extent and character of injury alleged, also the reasonable probability of future pain and suffering complained of in petition, see Stoebier v. Transit Co., 203 Mo. 702. (2) Even though petition was not sufficient to admit the evidence complained of by appellant, yet its failure to file affidavit of surprise precludes it at this time from setting up the question of variance. Sec. 1272, R. S. 1919; Reeves v. Larkin, 19 Mo. 192; Fisher v. Realty Co., 159 Mo. 567; Newton v. Harvey, 202 S.W. 251; Cossitt v. Ry. Co., 224 Mo. 97; Mellor v. Mo. Pac. Ry. Co., 105 Mo. 471. (3) The allegation of the petition is one of general and not specific negligence, hence instruction based upon the theory of res ipsa loquitur is not error. McDonald v. Met. St. Ry. Co., 219 Mo. 65.
RAILEY, C. White and Reeves, CC., concur. Walker, J., concurs in all except that part of opinion criticising plaintiff's counsel.
This case was commenced on September 25, 1918, and was tried at Kansas City, Missouri, on an amended petition, in which it is alleged that defendant is a corporation engaged in the transportation of passengers for hire; that it owns, operates and controls cars, tracks, etc., in Missouri and Kansas, and especially in the vicinity of 10th Street, in Kansas City, Kansas; that on or about the 5th day of September, 1918, plaintiff became a passenger for hire on one of defendant's north-bound Argentine-Minnesota Avenue cars, owned and operated by it; that the defendant, by and through its agents and servants then and there operating another street car owned by it and operated on the same track in advance of the car upon which plaintiff was a passenger, carelessly and negligently caused, suffered, allowed and permitted said car to move backward toward the one on which plaintiff was a passenger aforesaid, and to collide with said car on said 10th Street, near Lyons Street; that by reason of the imminent danger of the collision aforesaid, plaintiff attempted to alight from said car, and was thrown therefrom with great violence to the pavement below and sustained serious and permanent injuries, as described in said petition. Plaintiff claims to have been damaged in the sum of ten thousand dollars, for which amount she prayed judgment.
The answer to said petition was a general denial.
The trial of this cause was commenced before a jury on March 29, 1920. Plaintiff's evidence tends to show that on April 5, 1918, she was a healthy young married woman about twenty-seven years of age and the mother of one child; that on the above date she was a passenger on one of defendant's cars, going to her place of business in Kansas City, Kansas; that while ascending a grade at 10th Street, near Lyons Street, in Kansas City, Kansas, one of defendant's cars, preceding the one upon which she was a passenger, was defective in some manner, and began running backward down the hill toward the car upon which plaintiff was riding; that the motorman in charge of said last named car stopped the same, and proceeded to back it in order to avoid a collision with said oncoming defective car; that said motorman discovered another car approaching from the rear the one on which plaintiff was riding, and again stopped his car, abandoned the same by jumping from the platform, with the passengers, in order to effect his escape; that respondent, as one of said passengers, also endeavored to jump and save herself from peril, but, as she reached the front vestibule of her car, a collision between her car and the defective one occurred, and with great force threw her from the platform of her car to the street, where she fell with her face downward beneath a large man.
In order to avoid repetition, the evidence in regard to plaintiff's injuries, suffering, etc., will be considered later.
The testimony of defendant, relating to the defective car and the collision, differs but little, if any from the facts heretofore stated. No testimony in rebuttal was offered. Thereupon, defendant interposed a demurrer to the evidence, which was overruled.
The rulings of the court in passing upon the instructions, etc., will be considered in the opinion.
The jury returned a verdict in favor of plaintiff for $ 10,000 and judgment was entered accordingly. Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed to this court.
I. Appellant contends that at the conclusion of the whole case the court committed error in overruling its demurrer to the evidence. It is undisputed that, at the time and place of accident, plaintiff was a passenger upon one of defendant's cars in Kansas City, Kansas, and that she sustained some injury while occupying this position, without negligence upon her part. The charge of negligence set out in the amended petition reads substantially as follows: That defendant, by and through its agents and servants, then and there operating another street car owned by it, and operated on the same track in advance of the car upon which plaintiff was riding, carelessly and negligently permitted said car to move back toward the one on which plaintiff was a passenger, and to collide with said car on said 10th Street, near Lyons Street; that by reason of the imminent danger of the collision aforesaid, plaintiff attempted to alight from said car, and was thrown therefrom, with great violence, to the pavement below, and sustained serious and permanent injuries.
J. A. Marquis, motorman of the car which collided with the one on which plaintiff was riding, testified, in substance, that on the morning of the accident the air pump on his car burned out; that he pulled into Packard and Kansas Avenue and refused to operate said car on account of its brakes; that the inspector, with said motorman, then took charge of said defective car, and started to the barn with it. On the way to said barn the collision occurred, as heretofore stated.
It is undisputed that defendant, through its servants, was attempting to move this defective car over a track containing heavy grades, without it being attached to any other car whose brakes and appliances were in a proper condition, and that too, while other cars were transporting passengers over this track. It may be true, that the servants in charge of this defective car, when they found it would not go over the hill, and commenced running back, endeavored to stop the same, yet this did not preclude the jury from convicting defendant of negligence, in having this defective car upon the side of said hill, without adequate means to stop it from running into collision with the car on which plaintiff was a passenger. The defendant owed to plaintiff, as one of its passengers, a high degree of care, and could not avoid its responsibility under the circumstances aforesaid, by merely showing that defendant's inspector and motorman exercised due care in trying to stop the defective car after it commenced running back.
We accordingly hold, that the petition states a good cause of action, and that plaintiff presented substantial evidence at the trial entitling her to go to the jury on the merits of the controversy. [Abramowitz v. United Rys. Co., 214 S.W. 120.]
II. Defendant complains of plaintiff's Instruction "A," which reads as follows:
"The court instructs the jury that . . . plaintiff is not required to prove the cause of such collision, but the burden of proof is cast upon the defendant to rebut this presumption of negligence, and establish the fact that there was no negligence upon its part, and that the injury, if any, to plaintiff, was occasioned by inevitable accident that could not by the exercise of the utmost human foresight, knowledge, skill and care, have been prevented, by the defendant, their agents or servants; and unless the jury so believe, then you will find for the plaintiff." (Italics ours.)
This instruction, as indicated by the italicized portion, imposed upon defendant a greater burden than that required by the law. [Furnish v. Ry. Co., 102 Mo. 450-1; Magrane...
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