White v. Kansas City Public Service Co.
Decision Date | 20 May 1940 |
Docket Number | No. 19642.,19642. |
Citation | 140 S.W.2d 711 |
Court | Missouri Court of Appeals |
Parties | WHITE v. KANSAS CITY PUBLIC SERVICE CO. |
Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.
"Not to be Published in State Reports."
Action by Hattie White against the Kansas City Public Service Company for injuries sustained when struck by street car. From a judgment for the plaintiff, defendant appeals.
Affirmed.
Hogsett, Murray, Trippe, Depping & Houts and Chas. L. Carr, all of Kansas City, for appellant.
E. E. Thompson and W. R. Barnes, both of Kansas City, for respondent.
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. of 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:
It is admitted that unless the instruction correctly submits the humanitarian theory it is erroneous.
Defendant contends that the part of the instruction in italics is broad enough to submit primary negligence and, therefore, the instruction is erroneous. Defendant, in this connection, says that the italicized portion of the instruction submits, in the alternative, two acts of negligence, to-wit: failure to stop the car and failure to sound a warning, and defendant says: "Neither ground was referred or tied to the first paragraph, as for instance, by requiring the jury to find that defendant failed to so stop, or so sound a warning", and that the part of the instruction italicized is "not confined to negligence after plaintiff was in a position of imminent peril".
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Smith v. Fine
...primary charge. At best the instruction was prejudicially confusing. White v. Kansas City Pub. Serv. Co., 347 Mo. 895, 149 S.W.2d 375, 140 S.W.2d 711; Mayfield Kansas City So. R.R. Co., 337 Mo. 79, 85 S.W.2d 116; Schipper v. Brashear Truck Co., 132 S.W.2d 993; Rodenkirch v. Nemnich, 168 S.W......
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Wright v. Kansas City Structural Steel Co.
... ... 696; Turner v. Kent, 134 Kan. 574, 576, 7 P.2d 513; ... Davis v. Cities Service Oil Co. (Mo. App.), 131 ... S.W.2d 865; Clark v. Chase Hotel Co. (Mo. App.), 74 ... S.W.2d ... 47, 89 S.W ... 330, 334; Cummings v. Halpin (Mo. App.), 27 S.W.2d ... 718, 721; White v. Springfield, 189 Mo.App. 228, 173 ... S.W. 1090; 43 C. J. 1102; Williams v. Edward Gillen ... to be observed that the last two cases involved an ... obstruction and a defect in public highways, and the breach ... of duty was one owing to the public. They are clearly ... ...
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Stith v. St. Louis Public Service Co.
...a finding that the failure to slacken occurred after imminent peril arose.' See the dissenting opinion in White v. Kansas City Public Service Co., Mo.App., 140 S.W.2d 711, 713. Plaintiff concedes that in Harrow v. Kansas City Public Service Co., Mo.Sup., 233 S.W.2d 644, and White v. Kansas ......
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Wood v. Ezell, 7881
...instruction. We think the argument can best be demonstrated by the dissenting opinion of Kemp, J., in White v. Kansas City Public Service Co., Mo.App., 140 S.W.2d 711, 713. The writer of that opinion stated that the meaning of the instruction could be made clearly manifest by inserting the ......