White v. K.C. Pub. Serv. Co.

• Decision Date: 03 April 1941
• Docket Number: No. 37315.,37315.
• Parties: HATTIE WHITE v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

149 S.W.2d 375

HATTIE WHITE v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 37315.

Supreme Court of Missouri.

Division Two, April 3, 1941.

Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.

REVERSED AND REMANDED.

Charles L. Carr and Hogsett, Murray, Trippe, Depping & Houts for appellant.

Upon the appeal of the defendant to the Kansas City Court of Appeals two members of that court were for affirmance of the judgment of the trial court. Judge Kemp, however, dissented, deemed the majority opinion to be in conflict with cited controlling decisions of this court, and requested that the case be certified to this court, which was accordingly done. White v. Kansas City Public Service Company, 140 S.W. (2d) 714. This court therefore has jurisdiction of the case under Section 6 of the Amendment of 1884 to Article 6 of the Constitution of Missouri.

E.E. Thomas, William R. Barnes and Thompson & Osborne for respondent.

Instruction 1 is not erroneous and not in conflict with any controlling decision of this court. White v. Kansas City Pub. Serv. Co., 140 S.W. (2d) 711; Conolle v. St. Louis Pub. Serv. Co., 102 S.W. (2d) 581; Williams v. St. Louis Pub. Serv. Co., 73 S.W. (2d) 199; Windsor v. McKee, 22 S.W. (2d) 65; Sevedge v. K.C., St. L. & C. Ry. Co., 53 S.W. (2d) 284; Mayfield v. Kansas City So. Ry. Co., 85 S.W. (2d) 116.

WESTHUES, C.

This case was certified to this court because of a division of opinion among the judges of the Kansas City Court of Appeals. [See 140 S.W. (2d) 711.] We adopt the statement of the case as made by the Court of Appeals. It reads as follows:

"This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $800 and defendant has appealed.

"The facts show that plaintiff, a colored woman, was injured by being struck by one of defendant's street cars, about eight A.M. on February 3, 1937. Plaintiff was injured at the point where defendant's double street car tracks, running north and south, intersect the sidewalk on the north side of 63rd Street, an east and west street in Kansas City.

"The evidence shows that defendant's tracks are not laid upon a public street as they approach 63rd Street from the north, but apparently upon a private right of way. Defendant maintains a small building used for a dispatcher's office about 30 feet north of where plaintiff was struck. Southbound street cars stop at this building for the purpose of permitting the operators thereof to transact business with the dispatcher located there. As a matter of convenience, passengers are taken on and discharged at this point, the premises being paved with asphalt from the building to the sidewalk on 63rd Street.

"Plaintiff was a passenger on a southbound street car which stopped with its front end about opposite the dispatcher's building and which afterwards struck her. Plaintiff alighted from the front end of the car and proceeded on toward 63rd Street, there being a bus standing on the south side thereof, which she intended to board. She walked a little to the west of the west rail of the southbound track, with her back to the car, and when she reached a point about 30 feet south from where she alighted, she was struck. The evidence shows that the car, at any time after it started up, could have been stopped within 2 feet. The car sounded no warning of its approach and plaintiff did not see or hear anything of it after she started away from it.

"According to defendant's evidence the car did not strike plaintiff, but she was injured by reason of falling after she had safely alighted from the car and before it started up.

"The sole point raised on this appeal is the alleged error of the giving of plaintiff's instruction No. One, which reads as follows:

"`The court instructs the jury if you find and believe from the evidence in this case that defendant owned the street car in question, and same was operated by defendant's employee, in the furtherance of defendant's business, if you so find, and that on or about February 3, 1937, plaintiff alighted from said street car, at the regular stopping point mentioned in evidence, if you so find, and after alighting, plaintiff walked in a southerly direction toward Sixty-third Street, mentioned in evidence, if you so find, and thereafter defendant's operator started said street car in motion, if you so find, and that as plaintiff walked toward the south, she was in a position of imminent peril and danger of being struck by defendant's said street car, if you so find, and that plaintiff was oblivious to such peril and danger, if you so find, and that defendant's operator either saw, or by the exercise of ordinary care, could have seen plaintiff in said position of imminent peril and danger, if you so find, and oblivious thereto, if so, in time thereafter, if so, by the use of the appliances on said street car, and with reasonable safety to himself, defendant's street car, and any passengers thereon, if you so find, to have, by the exercise of ordinary care, either stopped said street car, if so, or sounded an audible warning of the approach thereof, if so, and thereby have prevented plaintiff being injured, if you so find;

"`And if you further find that defendant's operator failed to exercise ordinary care, and negligently, if so failed to stop said street car, if so, and negligently, if so, failed to sound an audible warning of the approach of said street car, if so, and that as a direct result of such negligent failure, if so, to stop said street car, if so, or to sound a warning of its approach, if so, it struck plaintiff, if so, and as a direct result thereof she was injured, if you so find, then your verdict must be for plaintiff Hattie White and against Kansas City Public Service Company, a corporation, and this is true under the above circumstances set forth, if you so find them even though you should find and believe from the evidence plaintiff herself was guilty of negligence at said time and place, which contributed to her injuries, if you so find, in getting into said position of peril and danger, if any, for such contributory negligence, if any, on part of plaintiff, under the above circumstances, if you so find them, would constitute no defense whatever in this action.'" [Italics by the court.]

[1] The sole question presented to the Court of Appeals was whether the instruction was broad enough to authorize a verdict for plaintiff on primary negligence. That is also the sole issue here. The part of the instruction italicized gave rise to this controversy. When a case is submitted to a jury under the humanitarian doctrine the plaintiff's instructions must be so worded as to exclude a recovery based on primary...