Summary
In McCormick v. Kansas City, Mo., 262 S.W.2d 868, 871[3], an order granting a new trial for the giving of an instruction submitting the negative of plaintiff's theory by hypothesizing the converse of plaintiff's submission or by hypothesizing facts which, if true, negatived an unsafe condition as submitted by plaintiff, was reversed and the judgment ordered reinstated.
Summary of this case from Frazier v. Ford Motor Co.Opinion
No. 43551.
December 14, 1953.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY.
David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor, T. James Conway, Asst. City Counselor, Kansas City, for appellant.
Paul C. Sprinkle, Charles F. Tucker, Sprinkle, Knowles Carter, Kansas City, for respondent.
Action against defendant, City of Kansas City, for $25,000 damages for personal injury sustained by plaintiff when he was thrown into the top of his automobile in which he was riding when the vehicle, driven by his son, was moving southwardly on College Street and across a dip or depression along the north side of 50th Street in Kansas City. A jury returned a verdict for defendant; but the trial court sustained plaintiff's motion for a new trial on the specified ground that the court erred in giving defendant's Instruction No. 3. Defendant City has appealed.
This case has been before this court on former appeal. McCormick v. Kansas City, Mo.Sup., 250 S.W.2d 524. The evidence introduced in the former trial was not materially different from that disclosed by the transcript of the evidence upon the retrial culminating in the instant appeal. However, the theory of plaintiff's submission under the erroneous Instruction No. 1 given at plaintiff's instance at the conclusion of the former trial was different from that given at plaintiff's request at the conclusion of the retrial of the case. Therefore, in treating with the parties' contentions on the instant appeal, it is necessary to state some of the averments of the pleadings, to briefly state the evidence introduced, and to particularly examine the instructions given in order to ascertain the trial theories of the parties.
Plaintiff alleged in his petition that the automobile, in which he was riding, "struck a hole, dip, or depression in said street, causing the plaintiff to be thrown in and about said automobile." Plaintiff further alleged that defendant City had failed to keep the street in repair and allowed the dip, depression or hole to exist after the City knew or by the exercise of due care should have known the condition existed. Defendant City by answer denied the allegations made in paragraphs of the petition alleging defendant's negligence and pleaded the negligence of plaintiff and his son in failing to look out; and in driving at excessive speed, and at a speed in excess of twenty miles per hour in violation of ordinances of Kansas City.
Plaintiff introduced evidence tending to show that he was riding on the right-hand side in the rear seat of his 1939 LaSalle sedan which was moving southwardly on College Street in Kansas City. His son was driving, and plaintiff's wife was seated in the front seat with the son. The vehicle was stopped at 4904 College Street, about five hundred feet north of the intersection of 50th and College, and plaintiff's wife got out and called at a home at that address. When plaintiff's wife had returned and was again seated in the front seat of the automobile, the plaintiff's son continued their drive southwardly. The car was in second gear and, in its approach to the intersection, was moving at a speed of a "minimum of ten, maximum of fifteen" miles per hour. Plaintiff, and plaintiff's wife and son, testified the vehicle was moving at between ten and fifteen miles per hour — they were the only witnesses who estimated the speed of the vehicle. As "we came into this intersection, I (plaintiff) was thrown violently against the top of the car." A "depression" or "dip" was along the north side of the pavement of 50th as it crossed College. (Witnesses for plaintiff testified the dip was from six inches to one foot at its deepest point, and was approximately eight feet wide. Defendant's witnesses said the dip was "a little better than six inches" in depth from high point to low point within a distance of fourteen feet. The son could have stopped the "car at 15 miles an hour in about a length and a half." The car was brought to a stop "about 100 feet south of the intersection."
Over defendant's objection plaintiff was permitted to introduce testimony of the previous experiences and observations of other drivers of other vehicles. These witnesses stated, "Well, they (automobiles) all bounce unless you just crawled across that space or the dip"; when "you drove over it going south at fifteen miles an hour * * * you bounce down into the bump * * * then you hit that sudden rise back up and it tends to throw the back end up"; and "I would * * * slow down almost to a stop to go over it." Defendant City introduced evidence tending to show there was no violent jolting or bouncing of vehicles when driven over the depression at rates of speed — "from 5 to 25 miles an hour"; "15 miles an hour"; "17 and 18 miles an hour"; "around 20 miles an hour"; "around 20 or 25"; "15 to 25 miles an hour." And defendant City, over plaintiff's objection, introduced Section 31-29 of the Revised Ordinances of Kansas City, 1946, providing that upon approaching within fifty feet of intersections (such as 50th and College) the speed shall not exceed twenty miles per hour.
At the plaintiff's instance the trial court gave plaintiff's principal Instruction No. 1, which was as follows,
"The Court instructs the jury that the defendant City * * * was required to use reasonable and ordinary care to keep its streets in a reasonably safe condition for travel by automobile so, therefore, if you find and believe from the evidence that prior to April 24th, 1949 the pavement at the intersection of 50th and College Avenue and at the north edge of the intersection was constructed of concrete but in such a manner as to have a dip in the same, if you so find, and if you further find and believe from the evidence that when vehicles crossed said dip at a speed of ten to fifteen miles per hour that they would be caused by reason of the construction thereof to violently bounce, if you so find, and if you further find and believe from the evidence that by reason thereof that said street was not reasonably safe for travel, and if you find and believe that in constructing and maintaining said street as aforesaid the city did not exercise ordinary and reasonable care and was thereby negligent, if you so find, and if you further find and believe from the evidence that the plaintiff was riding in an automobile traveling south which traveled over said dip and that when said automobile did travel over said dip while traveling at a speed of approximately ten to fifteen miles per hour that the car was caused to violently bounce and the plaintiff was thrown against hard surfaces therein and thereby injured, if you so find, and if you further find and believe from the evidence that the direct cause of the plaintiff's being so thrown was the condition of said dip as aforesaid, if you so find, then you are instructed that your verdict shall be in favor of the plaintiff and against the defendant." (Our italics.)
Defendant's Instruction No. 3, specified as erroneous in the trial court's order granting the new trial, was as follows,
"The Court instructs the jury that if you find and believe from the evidence that at a speed up to 20 miles an hour, (the maximum speed allowed by ordinance) motor cars would not bounce when passing over said place so as to throw passengers upwards from the back seats of said cars then your verdict should be for defendant."
Defendant-appellant, City of Kansas City, contends its Instruction No. 3 was supported by substantial evidence and submitted no more than the negative of plaintiff's theory of recovery — the trial court erred in sustaining the motion for a new trial, since, under the evidence, defendant City was entitled to the instruction. Plaintiff-respondent, E. H. McCormick, initially contends the trial court erred in admitting into evidence an ordinance of Kansas City providing a maximum speed of twenty miles per hour at intersections such as that of 50th and College. It is urged the admission of the ordinance injected a false issue in no way supported by evidence. Plaintiff-respondent further contends Instruction No. 3 was erroneous in that it permitted the jury to assume the car, in which plaintiff was riding, was being driven in excess of twenty miles per hour, although there was no evidence of that fact; and permitted the jury to take into consideration the ordinance and assume its violation when there was no evidence justifying its introduction into evidence and no evidence supporting its violation. Plaintiff-respondent also says the instruction permitted defendant City to make a defense based on the experience of others and not based on the facts of the occurrence, and allowed the rendition of a verdict for defendant based on general conditions rather than specific facts.
Plaintiff (respondent) has cited cases in which it was held there was error in giving and no error in refusing to give instructions which are not supported by evidence. Miller v. Williams, Mo.Sup., 76 S.W.2d 355; Barr v. Missouri Pac. R. Co., Mo.Sup., 37 S.W.2d 927; Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16; Smith v. St. Joseph Ry., Light, Heat Power Co., 310 Mo. 469, 276 S.W. 607; Rawlings v. St. Louis S. F. R. Co., Mo.Sup., 175 S.W. 935. And cases in which it was said that instructions should be applicable to the facts as pleaded and proven and not broader than the pleadings and the issues. Douglas v. St. Louis Public Service Co., 360 Mo. 869, 231 S.W.2d 157; Crites v. Kansas City Public Service Co., Mo.Sup., 190 S.W.2d 924; Carlisle v. Tilghmon, Mo.Sup., 159 S.W.2d 663; State ex rel. Central Coal Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722.
In the instant case we are of the opinion the trial court did not err in admitting the ordinance into evidence. The issue of negligence in moving at a speed in violation of ordinance was raised by defendant's answer. The inference could be reasonably drawn that the automobile in which plaintiff was riding was moving in excess of the maximum speed provided by ordinance inasmuch as there was evidence that cars moving at rates of speed up to twenty-five miles per hour, across the dip or depression, did not violently bounce and the automobile in which plaintiff was riding, when it crossed the dip or depression, bounced with such violence as to violently throw plaintiff up into the top of the vehicle, and inasmuch as there was evidence that the plaintiff's automobile moving at 15 miles an hour could have been stopped within one and a half car lengths, and that the automobile was not brought to a stop until it was over 100 feet south of the dip or depression.
It is true, as argued by plaintiff, that Instruction No. 3 makes parenthetical reference to the maximum rate of speed as provided by ordinance and directs a verdict for defendant. Because of the reference to the ordinance, it is urged that the jury may have been misled into finding for defendant upon an issue of negligence of plaintiff's son (whose conduct, plaintiff tacitly concedes, under the facts of this case was imputable to plaintiff) in driving at a rate of speed in excess of the rate of speed limited by ordinance, although the issue was not actually submitted to the jury by proper instruction. But we bear in mind that the trial court in granting a new trial specified that "the Court erred in giving Instruction No. 3." The trial court did not specify that the instruction was misleading. The order granting the new trial did not disclose that the trial court found as a factual issue that Instruction No. 3 was merely prejudicial or that it embarrassed plaintiff as establishing his case as contradistinguished from errors of law. Examine Cooper v. 804 Grand Bldg. Corp., Mo.Sup., 257 S.W.2d 649; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; Section 510.330 RSMo 1949, V.A.M.S. However, if it be said the Instruction No. 3 was misleading in the respect as contended by plaintiff, the jury was not misled to the prejudice of plaintiff, because, even though the jury may have thought the plaintiff's son was negligent in driving in excess of the maximum speed provided by the ordinance, the jury was in effect required by the instruction, in finding for defendant, that the place in question was not of the character as to cause cars to violently bounce when passing "over said place" at a speed up to twenty miles an hour.
This brings us to the consideration of plaintiff's theory of his case as submitted. It has been noted that plaintiff's principal Instruction No. 1 hypothesized an unsafe condition of the street. The unsafe condition hypothesized was that "the pavement * * * at the north edge of the intersection was constructed of concrete but in such a manner as to have a dip in the same * * * and * * * that when vehicles crossed said dip at a speed of ten to fifteen miles per hour that they would be caused by reason of the construction thereof to violently bounce * * * and * * * that by reason thereof that said street was not reasonably safe for travel * * *." It is thus to be seen that the plaintiff submitted the character or condition of the dip or depression as being one which, when vehicles crossed it at a speed of ten to fifteen miles per hour, would cause vehicles to violently bounce and that by reason thereof the street was not reasonably safe. This hypothesis was surely the basic fact of the theory upon which plaintiff submitted defendant's negligence. We think defendant was entitled to submit the negative of the basis of plaintiff's theory of the unsafe condition by hypothesizing the converse of plaintiff's submission of the unsafe condition, or by hypothesizing facts which, if true, would negative the unsafe condition as submitted by plaintiff. It is apparent that, in plaintiff's Instruction No. 1, the hypothesized condition of the street was not a submission of the physical aspect or condition of the hole or depression. The submitted condition was characterized as a hole or depression over which vehicles could not safely travel when moving ten to fifteen miles per hour. Defendant's Instruction No. 3, in effect, negatived the plaintiff's hypothesis of an unsafe condition by submitting facts compelling a finding that the condition was not unsafe for vehicles moving at a speed up to twenty miles per hour, ten miles in excess of the minimum and five miles in excess of the maximum speeds at which plaintiff had submitted the condition was unsafe for moving vehicles. A careful re-reading of Instruction No. 1 confirms our opinion that, by the instruction, the hypothesis (that the construction of the street was such as made it not reasonably safe for vehicles moving at ten to fifteen miles per hour) was so submitted that such a finding was essential to plaintiff's recovery. From a practical standpoint the effect of the jury's verdict for defendant was to find the negative of an essential fact as plaintiff had submitted in his Instruction No. 1. Plaintiff had the initiative. He stated his claim or cause of action, and at his request the trial court gave instruction submitting the law of the cause in accordance with plaintiff's theory in verdict-directing instructions. Evenhanded justice seems to require that plaintiff be bound by the theory he voluntarily originated. There was no error in the Instruction No. 3 of which plaintiff could complain. Lindquist v. Kansas City Public Service Co., 350 Mo. 905, 169 S.W.2d 366; Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W.2d 471; Kincaid v. Birt, Mo.Sup., 29 S.W.2d 97; Murphy v. Duerbeck, Mo.Sup., 19 S.W.2d 1040.
The order granting the new trial should be reversed, and the cause remanded with directions to reinstate the verdict and judgment for defendant.
It is so ordered.
LOZIER, and COIL, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur.