Hill v. K.C. Railways Co. , 289 Mo. 193 ( 1921 )

Irene Marie Hill. a negro girl some five years old at the time of the incident which occasioned her injury, sues through her next friend, for damages alleged to have been occasioned by the negligence of defendant's predecessor in title to the street railway property now operated by defendant. Defendant was the purchaser at a receivership and foreclosure sale of the property. The injury occurred whilst the railway property was in the hands of receivers, but no point is made as to the liability of this defendant, if its predecessor in title, or the receivers, were liable. So the case proceeded as if the instant defendant had been the owner and operator of the street railway property at the time of the accident. The accident occurred June 16, 1915, at 7:30 p.m. in the State of Kansas, near the intersection of Quindaro Boulevard and 7th Street, in Kansas City, Kansas. There was a double-track street railway in Quindaro Boulevard. The negligence charged is thus stated in the petition:

"Plaintiff states that the said receivers and their agents and servants in charge of said car were careless and negligent in that they failed to give plaintiff any warning signals of the approach of said car to her and to said intersection, and in that they were negligently operating said car without keeping proper or reasonably sufficient lookout ahead, and without having or keeping same under proper and reasonable control. Plaintiff further says that those in charge of said car were further negligent in that they saw or by the exercise of ordinary care could have seen plaintiff upon said track or so near the same and in such position as that she was in a position of danger and peril from the approach of said car, in time, by the exercise of ordinary care, under the conditions then existing, and with the use of the appliances at hand, to have stopped said car, slackened the speed thereof, or have warned plaintiff of the approach thereof, and thereby have avoided injuring her, all of which they negligently and carelessly failed to do.

"Plaintiff further states that as a direct and proximate result of the negligent and careless acts and omissions of those in charge of said car, as above described, all of said acts and omissions acting severally and concurrently with each other, she was struck, run over and injured by said car, at said time and place, injuring her in the following manner and particulars, to-wit."

The answer was a simple general denial. Plaintiff had a verdict for $10,000, and from a judgment entered thereon the defendant has appealed. There are some five or six assignments of error, which, with the relevant facts, will be noted in the course of the opinion.

I. It is first urged that the demurrer to the evidence should have been sustained. This insistence has several sub-divisions in the brief, stated thus:

"(a) The petition fails to state facts sufficient to constitute a cause of action against defendant.

"1. This accident occurred in Kansas, therefore the laws of Kansas govern.

"(b) The evidence did not justify a submission of this case to the jury under the allegations of the petition."

When boiled down there are but two real questions raised in the foregoing, i.e.: (1) the accident having occurred in Kansas, it is governed by the Kansas law, and being so governed, we cannot presume that the common law exists in Kansas, and (2) that the evidence failed to show liability.

As to the first proposition, supra, it must be conceded that the action is founded upon common-law negligence, as distinguished from statutory or ordinance negligence. The petition pleads no statute or ordinance. It states aAction at cause of action under our general law of negligence.Common The defendant invoked no law of Kansas, statutoryLaw. or otherwise. In such situation the case was properly tried under our rules of negligence. [Lyons v. Railroad, 253 Mo. l.c. 150-151.] In the Lyons case we discussed both the Mathieson case, and the Newlin case, relied upon by the appellant, in its brief. We can add nothing to what was said in Lyons's case. The action there was bottomed upon common negligence, as in this case. The answer there was a general denial, as in the instant case. We then said: "In such case, unless the defendant properly invokes the laws of the sister state, the law of Missouri is to be applied." So say we in the case before us. As to whether the evidence on the part of the plaintiff made a case under our law, we take next.

II. That there was evidence to take this case to the jury under the humanitarian rule we have no doubt. The main instruction for the plaintiff, whilst verbose and lengthy, places her case upon the humanitarian rule. The little girl and her brother had gone to a water fountain near the street intersection. After getting water at this fountain they started to retrace theirActs of steps toward the north or northeast across theNegligence. double railways tracks. Upon reaching the tracks upon which east-bound cars run, the plaintiff dropped a penny, and was looking for it at the time the east-bound car approached. The brother was ahead, and had reached the track upon which west-bound cars ran, when hearing an exclamation from the sister he turned and saw her looking for the penny, and "hollowed" at her, but she became confused and did not get off the track. He says the car was fifty feet away from her when he turned around. He further says that the motorman was talking to some person and not looking ahead. Other witnesses say that the little girl was on the track, in clear view of the motorman for at least seventy-five feet. They likewise corroborated the brother as to the motorman being engaged in conversation. There was ample evidence that at the rate of speed shown, the car could have been stopped in very much less than fifty feet, one witness placing it as low as fifteen feet. So also there is evidence that no gong was sounded or other notice given to the child. The facts sufficed to take the case to the jury, and it then became the province of the jury to determine the credibility of the witnesses detailing the foregoing facts. The demurrer was properly overruled upon both the questions urged by appellant.

III. The further point made is thus couched in the brief: "Where petition charges two or more concurrentConcurrent negligent acts combined caused the injury all mustNegligence. be proven to entitle plaintiff to recover."

The point is not clear to us in view of the record. The petition, after stating some other acts of negligence, thus pleads the humanitarian rule:

"Plaintiff states that the said receivers and their agents and servants in charge of said car were careless and negligent in that they failed to give plaintiff any warning signals of the approach of said car to her and to said intersection, and in that they were negligently operating said car without keeping proper or reasonably sufficient lookout ahead, and without having or keeping same under proper and reasonable control. Plaintiff further says that those in charge of said car were further negligent in that they saw or by the exercise of ordinary care could have seen plaintiff upon said track or so near the same and in such position as that she was in a position of danger and peril from the approach of said car, in time, by the exercise of ordinary care, under the conditions then existing, and with the use of appliances at hand, to have stopped said car, slackened the speed thereof, or have warned plaintiff of the approach thereof, and thereby have avoided injuring her, all of which they negligently and carelessly failed to do.

"Plaintiff further states that as a direct and proximate result of the negligent and careless acts and omissions of those in charge of said car, as above described, all of said acts and omissions acting severally and concurrently with each other, she was struck, run over and injured by said car, at said time and place, injuring her in the following manner and particulars, to-wit:"

We have so often ruled that the negligence covered by the humanitarian rule may be pleaded with other acts of negligence in the single count of a petition, and that a plaintiff may abandon all other alleged negligence, and recover upon the negligence which is covered by the humanitarian rule, that citation of authorities would be superfluous. In this case the plaintiff chose to submit her case upon the humanitarian rule, although the instruction is cumbersome. The allegations in the petition as to stopping the car, slackening the speed of the car and giving warning are all in the disjunctive, and the instruction so placed them, but the instruction leaves out of consideration the slackening of the speed of the car. The concluding portion of the instructions reads:

"And that the operator of said car saw or by the exercise of ordinary care could have seen plaintiff in such position of danger and peril, if any, and could by the exercise of ordinary care have known all of the above facts, if you so find, such to be the facts, in time thereafter by the exercise of ordinary care and by the use of the means at hand and with safety to said car and those aboard same, to have stopped said car or warned plaintiff of the approach thereof, if you so find, and could thereby have prevented injuring her, if you so find, and that the operator thereof failed to exercise ordinary care to stop said car or give reasonable warning of the approach thereof, if you so find, after he knew (if you so find he did) or by the exercise of ordinary care could have known (if you so find he could) that plaintiff was in such danger and peril, if any, as above set out, and that by such failure, if any, such operator was thereby negligent, if you so find, and that as a direct result of such negligence, if any, said car struck plaintiff and she was thereby injured, if you so find, then your verdict must be for plaintiff."

The previous portion of the instruction had required the jury to find that plaintiff was upon the track and was oblivious to her danger, and had defined the duty of defendant under such circumstances. Under these pleadings (so far as the humanitarian rule is concerned) the instruction did not have to require the jury to find all three of the things specified in the portion of the petition quoted, supra. The instruction left out the matter of slackening speed. It might have included it, because there was evidence tending to show no slackening of speed until the child was struck, but there was no error in leaving that matter out. The instruction might have left out both the matters of slackening speed and failure to stop, and submitted on the single matter of failure to warn. In Hinzeman v. Railroad, 182 Mo. l.c. 623, VALLIANT, J., said: "If the engineer saw the man in a position of danger, apparently inattentive to the approaching train, and if, with the means at hand, by the exercise of ordinary care, he could have given him timely warning, yet neglected to do so, then the case falls within the exception to the rule that a plaintiff cannot recover if his own negligence has contributed to his injury." See also Cytron v. Transit Co., 205 Mo. l.c. 719, and cases therein cited, including the Hinzeman case; Meeker v. Union Electric Light Power Co., 279 Mo. 574, 216 S.W. 931; State ex rel. v. Ellison, 223 S.W. l.c. 673.

Under the humanitarian rule, if the operator of a car sees one in peril, and oblivious thereof, then he is required to use any and all means at his hand to avert the injury of such person. If he can stop his car, he must stop. If the slackening of speed, although unable to stop, will avert the injury, he must do that. If a warning will avert the injury ordinary care requires that of such operator. So in this case under the pleadings, supra, the cause was properly submitted to the jury.

IV. There are several objections made as to the admission of incompetent evidence. Generally the objections now urged are not of weight. It is urged that witness Wren was improperly permitted to testify as to the speed of the car. Objection was made and the court sustained the objection on the ground that theExpert witness had not shown himself qualified to speak uponWitness. that question. Thereupon counsel for plaintiff, with a question or two from the court, proceeded to qualify the witness, and the witness then gave his judgment of the speed without further objection by counsel for the defendant. Counsel are in no position to urge this question.

Much is said about the court in what occurred in the following testimony from witness Sturges: "COURT: State whatStopping or you saw? A. The little girl started across the trackHesitating. and when she got on the track she became confused and the car struck her and it run over her.

"COURT: Became confused at what, just strike that out, and state what she did. A. When she got on the track (interrupted) —

"Q. When she got on the track, did she go across or stop? A. She did not have time before the car struck her.

"MR. HARDIN: I move the answer of the witness be stricken out as a conclusion.

"COURT: The objections are sustained.

"COURT: Did she keep going across? A. She became confused, apparently she has lost her head.

"Q. What did she do? A. She hesitated.

"Q. How long did she hesitate? A. Well, I could not say as to that.

"Q. Did she stop? A. Yes, sir, she hesitated on the track.

"COURT: What way did she go as she was walking across the track? A. Crossed from the south to the north.

"Q. She was going north? A. Yes, sir.

"COURT: When she got on the track she stopped? A. Yes, sir.

"MR. HARDIN: I object to that, he did not say she stopped, he said she hesitated.

"COURT: I will overrule it; go ahead.

"To which ruling of the court the defendant by its counsel then and there duly excepted.

"MR. HARDIN: I move that all be stricken out.

"COURT: The motion is overruled.

"To which ruling of the court the defendant by its counsel then and there duly excepted.

"COURT: Which way was she facing when she stopped?

"MR. HARDIN: I objected to that as assuming she stopped, and not proper examination.

"COURT: Same ruling; objections are overruled.

"To which ruling of the court the defendant by its counsel then and there duly excepted.

"A. I could not say as to which way the little girl was facing when she stopped.

"COURT: She had been going north? A. Yes, sir.

"COURT: Did she turn or make any movement? A. I do not remember as to that.

"COURT: Was she standing still or moving when the car struck her; did you see the car strike her? A. No, sir, I was back a little too far for that.

"COURT: The front end? A. Yes, sir.

"COURT: How far did you see her ahead of the car? A. When I first noticed the little girl?

"COURT: No, the last distance you could see her? A. Well, I should judge the little girl was ten or fifteen feet in front of the car.

"COURT: When your view was shut off? A. Yes, sir.

"COURT: At that time was she standing still or walking? A. I think she was standing still.

"COURT: You don't know which way she was looking, you do not remember? A. No, sir, I do not remember."

When all this evidence is read, it is clear that the witness meant in the first instance to say that the little girl stopped upon the track. The question was, "Did she stop?" The answer was, "Yes, sir, she hesitated on the track." From that the court took it that the witness meant that she stopped (a least for a short time) on the tracks, and the subsequent testimony of the witness shows this to be a fact. For later he was asked whether she was standing still or walking, and the witness said: "I think she was standing still." When the whole testimony is examined we can see no error in the action of the court.

Complaint is made of the introduction of a written statement made by one G.B. Mitchell, who was at a former trial a witness for plaintiff, but at this time a witness for defendant. It was shown that Mitchell said that the signature andWritten statement were his, but he in a way denied theStatement. statement and signature at the trial. Without objection the witness signed his name on a paper, and the two were admitted for comparison by the jury. The statement tends to contradict Mitchell's testimony. One witness testified that prior to the former trial Mitchell had admitted that the written statement and signature were his, and from it all we must rule that there was no error in the admission of the document.

Other objections as to the testimony do not merit notice, and we pass to other questions.

V. Misconduct upon the part of the trial court is charged as error. This misconduct was in the manner of the court examining witnesses. In a previous paragraph, in discussing the admission of evidence, we have set forth the worst aspect ofMisconduct the court's conduct. The previous irritating conductof Court. of the then trial counsel might be also set out with justification, but we shall not so do. Counsel briefing the case here did not appear below. Suffice it to say that it was sufficient to irritate a court, who was trying to get at the real issues and the facts therein. We do not think the action of the court sufficient for a reversal of the judgment. Nor do we think there was harmful error in refusing to admit some evidence offered by defendant.

Further, this court will not disturb a verdict simply because it is against the weight of the evidence. That is for the trial court. If there is substantial evidence to support the verdict (as here) we will not review the evidence to determine the weight, or attempt to interfere with the province of the trial court in such matters. The defendant urges that we reverse the judgment, because against the weight of the evidence. This, like its contention of the refusal to admit proper evidence, must be overruled. No question is made in the assignment of error as to the size of the verdict, so that the propriety of the instructions given is all that there is left to this appeal.

There are so many sub-divisions of contentions in the voluminous brief, that we are forced to treat several of them in one paragraph — a bad practice, we admit.

VI. In the assignment of errors the defendant complains of instructions A and B given for plaintiff. Instruction A is the instruction on the humanitarian rule. We have, in connection with other matters, set out the material parts of thisInstructions. instruction, and we find no error in it. Instruction B is one upon the measure of damages. The instruction is a usual one in this class of cases, and the criticism thereof is supercritical. The following clause therein is criticised:

"Any mental anguish, if any, which the jury finds and believes from the evidence she has suffered and such, if any, as the jury find and believe from the evidence she will withMental reasonable certainty hereafter suffer as a directAnguish. result of such injuries."

It is urged that there is no evidence that the little girl suffered or will suffer any mental anguish, as distinguished from bodily pain. The fearful injuries to the child were fully described to the jury. The left arm was off just below the elbow. The left foot was off back to the heel. The big toe and the next one to it, of the right foot, were off, and the third toe was broken and bent out and under the foot in hook shape. This was the physical condition, which she must carry through life. Mental anguish is distinguishable from mere pain, and may be the outgrowth of just such a condition as we have described. As the years pass the condition for its production remains. We have omitted to state the nervousness shown to have been, and at the trial being, suffered by plaintiff.

Next it is said that the instruction is erroneous, because it authorized the jury to allow her to recover for impaired ability to earn money "after she became of legal age." Of this it is said that this court will not presume that a Missouri jury would know the legal age of a girl in Kansas. The presumption isLegal indulged that the law of the forum is the same as that ofAge. Kansas. We touched upon this question in the first portion of this opinion. We do not deem the instruction improper. The judgment is affirmed. All concur.