Wilson v. Kansas City Public Service Co.

• Citation: 193 S.W.2d 5,354 Mo. 1032
• Decision Date: 11 March 1946
• Docket Number: 39640
• Parties: Robert A. Wilson v. Kansas City Public Service Company, Appellant
• Court: Missouri Supreme Court

193 S.W.2d 5

354 Mo. 1032

Robert A. Wilson v. Kansas City Public Service Company, Appellant

No. 39640

Supreme Court of Missouri

March 11, 1946

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed and remanded (with directions).

Charles L. Carr and Harding, Murphy & Tucker for appellant.

(1) Plaintiff's case was not submissible to the jury and there was no question of fact for the jury to pass on. Lennon v. St. Louis & Suburban Ry. Co., 94 S.W. 975 198 Mo. 514; Ziegelmeier v. East St. Louis & Suburban Ry Co., 330 Mo. 1013, 51 S.W.2d 1027; Lotta v. Kansas City Public Serv. Co., 342 Mo. 743, 117 S.W.2d 296; Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d l.c. 34; Farris v. Thompson, 168 S.W.2d 439. (2) Plaintiff failed to make a submissible case on injuries. (3) Instruction 1 erroneously submitted the cause to the jury on the humanitarian doctrine, though plaintiff failed to make a case on such theory. Lennon v. St. Louis & Suburban Ry. Co., 94 S.W. 975, 198 Mo. 514; Ziegelmeier v. East St. Louis & Suburban Ry. Co., 330 Mo. 1013, 51 S.W.2d 1027; Lotta v. Kansas City Public Serv. Co., 342 Mo. 743, 117 S.W.2d 296; Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d l.c. 34; Farris v. Thompson, 168 S.W.2d 439. (4) Instruction 1 erroneously assumed plaintiff was in a position of imminent peril. Same cases as cited under Point (3). (5) The court erred in admitting incompetent, improper and prejudicial hearsay evidence. Bartlett v. Kansas City Pub. Serv. Co., 339 Mo. 13, 160 S.W.2d 740; Petrovic v. Standard Fire Ins. Co., 167 S.W.2d 412; State v. Shain, 343 Mo. 435, 121 S.W.2d 789; Munton v. A. Driemeier Storage & Moving Co., 223 Mo.App. 1124, 22 S.W.2d 61. (6) The court erred in refusing to sustain defendant's motion for a mistrial after admitting erroneous and prejudicial hearsay evidence. Same cases as cited under Point (5). (7) The verdict of the jury and the judgment entered against defendant in the amount of $ 12,000 was excessive. Weisman v. Arrow Trucking Co., 176 S.W.2d 37; Bumgardner v. St. Louis Pub. Serv. Co., 102 S.W.2d 594, 340 Mo. 521; Zichler v. St. Louis Pub. Serv. Co., 59 S.W.2d 654, 332 Mo. 902; Corbett v. Terminal Ry. Assn. of St. Louis, 82 S.W.2d 97, 336 Mo. 972; Carpenter v. Wabash Ry. Co., 71 S.W.2d 1081, 335 Mo. 130; Johnston v. St. Louis, 138 S.W.2d 666. (8) The trial court erred in not granting defendant a new trial because the verdict was excessive and the evidence failed to show permanent disability as the result of an injury. Derschow v. St. Louis Pub. Serv. Co., 339 Mo. 63, 95 S.W.2d 1173; Weiner v. St. Louis Pub. Serv. Co., 87 S.W.2d 191; Weisman v. Arrow Trucking Co., 176 S.W.2d 37; Lebrecht v. United Rys. Co. of St. Louis, 237 S.W. 112; Plank v. R.J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Bante v. Wells, 34 S.W.2d 980; State ex rel. Kansas City Pub. Serv. Co. v. Shain, 165 S.W.2d 428, 350 Mo. 316. (9) The verdict and judgment were not supported by the evidence and was against the weight of the evidence, and failed to show that any disability the plaintiff may have was not from pre-existing disease, rather than from injury. Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 312; Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98; Pietraschke v. Pollnow, 147 S.W.2d 167.

Clyde J. Linde and Langworthy, Matz & Linde for respondent.

(1) The court properly overruled defendant's motion for a directed verdict and properly submitted the cause under plaintiff's Instruction 1. State ex rel. Siegel v. Daues, 300 S.W. 272, 318 Mo. 256; Murray v. Kansas City Pub. Serv. Co., 61 S.W.2d 334. (2) Plaintiff's testimony concerning the earnings of laundrymen was not hearsay, but was founded upon plaintiff's personal observation, experience and knowledge. Wigmore on Evidence (3 Ed.), sec. 715; Quirk v. Met. St. Ry. Co., 210 S.W. 106, 200 Mo.App. 593, cert. quashed, State ex rel. Met. St. Ry. Co. v. Ellison, 224 S.W. 820; Thomas v. Mallinckrodt, 43 Mo. 58; Tate v. M.-K.-T. Ry. Co., 64 Mo. 149; St. L.K. & N.W.R. Co. v. St. L. Stockyards Co., 25 S.W. 399, 120 Mo. 541; Seyfarth v. St. L. & I. Mt. R. Co., 52 Mo. 449; Nevada and M.K. Co. v. De Lissa, 15 S.W. 366, 103 Mo. 125; Southern Mo. & A. Ry. Co. v. Woodard, 92 S.W. 470, 193 Mo. 656; Knapheide v. Jackson County, 114 S.W. 960, 215 Mo. 516. (3) The verdict was not excessive. Mauck v. A.T. & S.F., 154 S.W.2d 73; Brady v. Terminal Railroad Assn. of St. Louis, 127 S.W.2d 1; Messing v. Judge & Dolph Drug Co., 322 Mo. 901, 18 S.W.2d 408; De Moulin v. Roetheli, 189 S.W.2d 562; Joice v. M.-K.-T.R. Co., 189 S.W.2d 568. (4) The undisputed testimony of the permanency of plaintiff's disability meets the common sense test so often repeated by this court that permanency of injury must be shown with reasonable certainty, although absolute certainty is not required. De Moulin v. Roetheli, 189 S.W.2d 562. (5) It appears from the uncontradicted evidence that there is no doubt as to the cause of plaintiff's disability.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action for damages for personal injury. Verdict and judgment for $ 12,000 went for plaintiff and defendant appealed.

Plaintiff was the driver of a laundry truck in Kansas City, and on December 5, 1942, he parked the truck, headed north, about midway of the block on the east side of Belleview Street, in order to deliver laundry to an apartment building on the east side of the street. Defendant's street car approached from the south, struck the partly opened door of the truck, causing it to buckle in on plaintiff, who, according to his evidence, was standing on the street, back to the west, and was bent over the folded down seat searching out the laundry package to be delivered, with partly opened door resting on his back or hips.

Plaintiff alleged primary and humanitarian negligence, but went to the jury only under the humanitarian negligence charge, and on the theory that by the exercise of ordinary care the street car could have been stopped or a reasonably sufficient warning given in time to have avoided injuring him. Defendant answered by general denial and a plea of contributory negligence.

Error is assigned: (1) On the refusal of defendant's motion for a directed verdict; (2) on plaintiff's instruction No. 1; (3) on the admission of evidence; and (4) on an alleged excessive verdict.

The distance from the east curb of Belleview to defendant's northbound street car track was 10 feet, 7 1/2 inches. The overhang of the street car was 18 inches. Plaintiff's laundry truck was 5 feet and 6 inches in width, and was parked with the curbside wheels about 1 1/2 or 2 feet from the curb. It was not snowing when plaintiff parked his truck, but the night before and that morning from 2 to 4 inches of snow had fallen and the snow from the sidewalk where plaintiff parked had been removed to the gutter. Plaintiff said that because of the snow he could not see the curb. North from Ward Parkway, an east and west drive, there was a 3 1/2% up grade. From the parked laundry truck it was 170 feet south to Ward Parkway. Brush Creek, extending east and west, is immediately south of Ward Parkway, and the street car tracks, after crossing the trestle south over the creek, curve to the west. A photograph in evidence shows some trees and shrubbery west of the trestle and to the right of the curve to the west.

Plaintiff came from the west on Ward Parkway, turned north on Belleview, and testified that when he turned he did not see any street car, and that when he stopped he looked at his rearview mirror and that no street car was coming from the south. He said when he stopped, and after looking into the rearview mirror, he opened the truck door, got out, looked south, could see 300 feet, but saw no street car; that he did not again look south; folded down the truck seat, leaned over it and went to looking for the laundry package he was to deliver at the apartment; that the truck door was resting against his back or hips; that he was "busy there" a minute and a half or two minutes, and that just about the time he found the laundry package to be delivered the street car struck the truck door; that he did not see the street car, did not hear any gong, and did not hear the approach of the street car.

Plaintiff's witness, Joe Birmingham, who saw at least a part of what occurred, corroborated plaintiff in some respects. He testified when he first saw the street car it was 3 or 4 feet south of the truck; that the front end of the street car was about 10 feet in front of the truck when the truck door was struck, and that there was no change in the speed of the street car until the impact. The street car, according to the evidence of the operator, infra, just to the rear of the front door, was 6 inches wider than at the front end.

Pearl Collins Erhart was operating the street car, and as a witness for defendant, testified: "I stopped at 49th street (next south of Ward Parkway) and as I was coming north on Belleview, saw a truck parked about two feet from the curb but did not see any door or anybody about the truck; thought I could pass; parked two feet out, there was clear passage. The door was not open when I first saw the truck. I was traveling around 15 miles per hour and I didn't have any reason to slow down; going up hill on a grade of 3 1/2% at 15 miles per hour, under the conditions that existed, I could have stopped in 60 or 65 feet. When I got about 15 feet from the truck, the door opened. I sounded the gong, threw my car in emergency and, as I went by, the door of the street car struck the truck. I ...