Crews v. Wilson , 312 Mo. 643 ( 1926 )

On April 16, 1921, the plaintiffs, Floyd E. Crews and Ethel Crews, filed in the Circuit Court of Jackson County, Missouri, their action for damages against the Kansas City Railway Company, and its receivers, on account of the killing of their six-year-old son in said city on March 22, 1921, by said railway company.

(1) The petition in substance charges that about 7:45 o'clock A.M. on March 22, 1921, while plaintiffs' son, Jack Crews, was walking across 43rd Street in said city, from south to north, at a point about sixty feet east of the east line of Main Street, in said city, defendants' servants in charge of defendants' east-bound car carelessly and negligently ran said car against and over said Jack Crews and killed him; that the servants of defendants in charge of said car saw, or by the exercise of ordinary care could have seen, Jack Crews coming into a perilous position, and in a perilous position, oblivious of the approach of said car, in time, by the use of ordinary care and caution, with due regard to the safety of the people on said car, to have stopped said car and avoided injuring plaintiffs' son, and negligently failed to do so.

(2) It is further alleged that said car was equipped with a bell or gong, to warn people of danger, and that the motorman in charge of said car negligently failed to sound said gong for the purpose of informing Jack Crews of the approach of said car.

(3) It charges that defendants were guilty of negligence in failing to have the car under control which killed plaintiffs' son, and that he was killed by reason thereof.

(4) It is averred that by reason of the foregoing acts of negligence, plaintiffs' son was run over and killed as aforesaid, and for which they seek to recover $10,000 as damages, etc.

The answer was a general denial.

The case was tried before a jury, and on November 16, 1922, a verdict was returned in favor of defendants. Judgment was entered in due form on the verdict aforesaid. Plaintiffs, in due time, filed a motion for a new trial, which was overruled, and the cause appealed by them to this court.

It appears from the evidence, that on the morning of March 22, 1921, plaintiff Ethel Crews sent her daughter, Evelyn, then about eight years old, and her son, Jack Crews, then about six years old, on an errand to get some cookies. In order to do this errand, it was necessary for the children to cross 43rd Street, near its intersection with Main Street in Kansas City, Missouri. Forty-third Street runs east and west and Main Street north and south. Each of said streets has double-track street-car lines with appropriate switches and cross-overs. The above switches and cross-overs were what are commonly called spring or plug switches, and were not electrical switches. The Rockhill-Independence Avenue street cars move north and south on Main Street, and east and west on 43rd Street, reaching the one or the other by the switches mentioned, at their intersection at 43rd and Main. As the cars move west on 43rd Street, they make regular passenger stops from ten to fourteen feet east of Main. The first street east of Main is Walnut Street, which runs north and south. The block between Main and Walnut is about 250 feet long. From Walnut to Main there is a slight down grade. The switch-point of the west-bound track on 43rd Street is about seventy or seventy-five feet east of Main Street. It is not an electrical switch-point, but a spring or plug. When two cars are meeting — one east-bound on the south track and the other west-bound on the north track — the west-bound car, approaching the switch-point, is required to slow down until the rear trucks pass said switch-point — this, to guard against a possible split switch. The width of each track is four feet and eight inches; and the width or space between the east-bound and west-bound tracks is five feet. The distance from the south curb of 43rd Street, to the south rail of the north or west-bound track is about twenty-three feet. The street structure, on either side of the rails on 43rd Street, consists of cobble-stones, which are rough and coarse, some being about an inch or an inch and a half above the top of the rails.

When Evelyn and Jack Crews reached the south curb on 43rd Street, a car was moving east-bound on the south track and another moving west-bound on the north track. The motorman on the west-bound car was sounding his gong and slowing down to about six miles per hour. The east-bound car had completely rounded the curve or switch and was moving directly east and passing in front of said children. Evelyn had hold of Jack's hand when they reached the curb and they stopped to let the car pass, but suddenly Jack broke away from his sister and ran as fast as he could immediately behind the east-bound car and directly in front of the west-bound car. At this time, the cars had passed the switch-points and were accordingly moving with the usual speed, the west-bound car traveling eight or ten miles per hour. The evidence discloses that deceased ran directly within two or three feet behind the east-bound car. He was there and within about a foot or eighteen inches south of the north rail of the east-bound track when the motorman first saw him. He was then from five to seven feet south of the west-bound car and two or three feet west of its front. The motorman was keeping a lookout for pedestrians. The instant the motorman saw deceased, he stepped on the sand, pulled the reverse lever, and notched two points on the controller. This was the quickest possible way to make an emergency stop, and he made the stop within about fifty feet. The deceased was struck by the fender and front part of the car, being under it, and killed.

A stop within fifteen to twenty-five feet was shown by the evidence to be a good one.

Such other matters as may be deemed important will be considered later.

I. The court is charged with error in giving Instruction 2-d, at the instance of defendants. It reads as follows:

"2-d. The jury are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony.

"In determining the credit you will give to a witness and the weight and value you will attach to a witness's testimony, you should take into consideration the conduct and appearance of the witness upon the stand, the interest of the witness, if any, in the result of the trial, the motives actuatingCredibility of the witness in testifying, the witness's relationWitnesses. to or feeling for or against plaintiffs or defendants, the probability or improbability of the witness's statements, the opportunity the witness had to observe and to be informed as to matters respecting which the witness gave testimony, the inclination of the witness to speak truthfully or otherwise regarding matters within the knowledge of such witness.

"If you believe that any witness is honestly mistaken as to any material fact about which such witness gave testimony, you are at liberty to disregard that part of such witness's testimony. But if you believe that any witness has wilfully sworn falsely regarding some material fact about which such witness gave testimony, you are at liberty to disregard and disbelieve that part of such witness's testimony, or the whole of such witness's testimony.

"All these matters being taken into account with all the facts and circumstances given in evidence, it is your province to give each witness such credit and the testimony of each witness such weight and value as you may deem proper."

The above instruction, in substance, has received the approval of this court running through a period of seventy years, in many decisions, some of which are as follows: State v. Mix, 15 Mo. l.c. 159; Gillett v. Wimer, 23 Mo. l.c. 78; State v. Dwire, 25. Mo. 553; Paulette v. Brown, 40 Mo. l.c. 57; State v. Elkins, 63 Mo. l.c. 166; Brown v. Ry. Co., 66 Mo. l.c. 600; State v. Patrick, 107 Mo. l.c. 162; McFadin v. Catron, 120 Mo. l.c. 270; State v. Wright, 134 Mo. l.c. 406; State v. Hudspeth, 159 Mo. l.c. 208; State v. Swisher, 186 Mo. l.c. 7; State v. Bond, 191 Mo. l.c. 561; State v. Feeley, 194 Mo. l.c. 323; State v. Shelton, 223 Mo. l.c. 138-9; State v. Barnes, 274 Mo. 625; State v. Marlin, 259 S.W. l.c. 434; State v. Houston, 263 S.W. l.c. 219 and following; State v. Brown, 270 S.W. l.c. 275; State v. Hogan, 273 S.W. l.c. 1062.

There was a sharp conflict between the testimony of plaintiffs and that of defendants as to the distance in which the car could have been stopped, at the time and place of accident. By way of illustration, John R. Glove, who had formerly worked for defendant company, gave it as his opinion, that the car going six miles an hour could have been stopped instantly; that going ten miles per hour it could have been stopped in two feet. Owen Cockel, the motorman in charge of the car that killed the boy, who was still in the service of defendants, testified that he did everything possible to stop the car and that it then ran fifteen to seventeen feet. George Harder, a witness for defendants, and still in their service, gave it as his opinion, that the car could have been stopped in from twenty to twenty-five feet. Other witnesses, in the employ of defendants, testified to substantially the same facts. It was a question for the jury as to whether some of these witnesses were honestly mistaken, or whether they testified recklessly or falsely in respect to this issue.

There was a sharp conflict between the testimony for plaintiffs and that given in behalf of defendants, as to whether there was a rule of the company requiring motormen to stop cars when approaching a switch point, and meeting a car moving in the opposite direction, etc. The plaintiff Floyd E. Crews, father of deceased, who at one time had been a motorman for the railway company, swore there was such a rule in existence and that it applied to the switch-point or cross-over in controversy. This evidence was directly contradicted by several of defendants' employees. The jury had the right, in weighing the evidence, to take into consideration the fact that Floyd Crews was the father of deceased and an interested witness; and that the testimony of defendants came from men who were still in the service of the road.

Several other matters occurred during the progress of the trial that warranted the court in giving the above instruction. It applied alike to the witnesses for both plaintiffs and defendants, and properly stated the law.

II. It is contended, that the court erred in refusing plaintiffs' instruction numbered seven. Omitting the formal parts, about which there is no controversy, it reads as follows:

"The court instructs the jury that if you find and believe from the evidence in this case that Jack Crews was struck, knocked down, run over and killed by the car of defendants mentioned in the evidence, . . . and if you further find and believe from the evidence that the defendants' employees in chargeCar under of their street cars approached Main Street fromControl: Walnut Street without having said car underInconsistent control, and if you further find and believe fromTheories. the evidence that it was negligent to run said car at said time and place without having the sameunder control, and as a direct result thereof said Jack Crews was struck, knocked down, run over and killed by said car, then youwill find the issues for the plaintiffs." (Italics ours.)

The petition, among other things, charges in substance, that defendants' servants in charge of said car, saw, or by ordinary care could have seen, plaintiffs' son coming into and in a perilous position in front of said car, while oblivious of its approach, in time, by ordinary care, to have stopped said car and avoided injuring plaintiffs' said son, but carelessly and negligently failed to do so. This averment of the petition, which must be taken as true against plaintiffs, charges in legal effect, that the car was under control, but the motorman was guilty of negligence in failing to use the means at hand to stop the car in time to avoid the accident. This theory of the humanitarian rule of law was fully submitted to the jury by plaintiffs' Instruction One (1), which was complete within itself, and authorized a verdict for plaintiffs, based on the facts therein. The most casual reading of plaintiffs' Instruction One, as given, and Instruction Seven, refused, will indicate that they are inconsistent, and clearly in irreconcilable conflict with each other. If the car was not under control as contemplated in Instruction 7, then how could the motorman by the exercise of ordinary care have stopped the car in time to have saved the life of the child as contemplated in Instruction One, supra? It is true, that different acts of negligence which are consistent with each other, may be united in the same petition, or the same count of petition, but it needs no citation of authority to sustain the position that the trial court cannot legally submit to the jury by instructions two separate and inconsistent theories of negligence. There is some doubt as to whether the plaintiffs were entitled to go to the jury at all in this case, but if they had any meritorious cause of action, it was properly submitted to the jury under the humanitarian rule as contemplated in plaintiffs' instruction numbered one (1), which authorized a recovery within itself, if the facts were found in their favor.

We are informed, by appellants' brief, that "under control" is a much better term than "excessive speed. If a car is not under control it is being run at an excessive speed." If it was the intention of appellants to take the verdict of the jury on the issues as to whether the motorman in charge of said car was guilty of negligence, at the time and place of accident, in running said car at an excessive rate of speed, so that it could not have been stopped in time to avoid the killing of plaintiffs' son, why did they not frame their instruction accordingly, instead of submitting an issue of law to the jury by the use of the words "under control?" [Great Northern Railroad Co. v. Hooker, 170 F. 154; Central Railroad Co. v. Young, 200 F. 359.] The petition does not charge the defendants with negligence in running the car at an excessive rate of speed and, hence, an issue of that character was not admissible under the pleadings. If counsel for plaintiffs considered that failure to have the car under control, was tantamount to a charge that it was being operated at an excessive rate of speed the instruction should have defined the meaning of "under control," instead of leaving the jury to guess as a matter of law the meaning of said words.

In Great Northern Ry. Co. v. Hooker, 170 Fed. l.c. 159, VANDEVANTER, J., of the Court of Appeals, but now a member of the United States Supreme Court, in discussing "under control," said:

"Moreover, it is held by this court that the reasonableness of such rules is to be determined by the court as a question of law, and not by the jury as a question of fact."

The ruling in the Hooker case was approved by GRAY, J., in Central Railroad v. Young, 200 Fed. l.c. 364-5 and appeals to us as being sound when applied to Instruction Seven refused in this case.

Upon a full consideration of the case, we are decidedly of the opinion that plaintiffs were only entitled to go to the jury, if at all, under the humanitarian rule, as submitted under plaintiffs' Instruction One, which was complete within itself, and authorized a verdict for appellants on the facts stated therein. The court committed no error in refusing said Instruction Seven as asked.

III. It is claimed that plaintiffs' Instruction One is in conflict with Instruction Three, given in behalf of defendants.

The petition charges that the motorman saw or could have seen plaintiffs' son "coming into a perilous position and in a perilous position in front of said car" etc. Instruction 3, given for defendants, uses the language, "could have seen plaintiffs' son coming into a perilous position, or already inInconsistent a perilous position in front of said car," etc. TheInstruction. defendants' instruction numbered three follows the language of the petition and is in proper form. If any error was committed, it was in plaintiffs' Instruction One failing to follow the language of the petition. The above assignment is without merit and overruled.

IV. We have carefully examined and fully considered, all the remaining questions presented in the briefs of counsel. We are of the opinion, that the case was well tried by court and counsel; that no error was committed during the progress of the trial, of which appellants can legally complain. We accordingly affirm the judgment. Higbee,C., concurs.