Burns v. Kansas City Public Service Co.

273 S.W.2d 184, 1954 Mo. LEXIS 800
CourtSupreme Court of Missouri
DecidedDecember 13, 1954
DocketNo. 43783
StatusPublished
Cited by6 cases

This text of 273 S.W.2d 184 (Burns v. Kansas City Public Service Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burns v. Kansas City Public Service Co., 273 S.W.2d 184, 1954 Mo. LEXIS 800 (Mo. 1954).

Opinion

LOZIER, Commissioner.

In his action for personal injuries, plaintiff-respondent (herein called plaintiff) had verdict and judgment: against defendant-appellant (herein called defendant) for $12,500. Defendant appealed.

Defendant here challenges the propriety of an instruction and contends ’ that the verdict was excessive because not supported by substantial evidence.

On April 19, 1948, plaintiff was ,a passenger on defendant’s Jackson Street streetcar when it was struck from the rear by defendant’s Vine Street streetcar. Three rear vestibule windows and one transom window and two rear center posts of the Jackson Street car were broken and its roof was damaged. The front dash and controller of the Vine Street car were “pushed back” and its air pipes, two front center posts and two windows were broken. According to one of defendant’s witnesses (a passenger on the Jackson Street car), the impact was “a terrific smash.” Plaintiff, standing with his back against a guard rail in the extreme rear of the car,- was thrown forward into the aisle and was injured.

The case was submitted under the res ipsa loquitur theory. Plaintiff’s Instruction 1 was: “The court instructs the jury it is admitted as a fact in this case that at the time of the occurrence in question, the plaintiff Burns was a passenger on defendant’s streetcar No. 1158, and while so upon said streetcar as a passenger, when the car was at or near the intersection of 19th and The Paseo in Kansas City, Missouri, an eastbound Vine Street car owned and operated by the defendant, ran into and collided with the [186]*186rear of the streetcar in which plaintiff was riding.

“Therefore, you are instructed that if you shall find and believe from the evidence that plaintiff Burns received injuries at said time and place, and that such injuries, if any, directly resulted from the collision of the two streetcars, then you are instructed that such facts, if you believe them to be true, are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find, unless you find and believe from the other facts and circumstances in evidence that the occurrence was not due to defendants negligence, cmfi if you do find and believe from all the evidence in the case that the defendant was negligent, and that‘ plaintiff’s injuries, if. any, were directly caused by the defendant’s negligence, then your verdict should be for the plaintiff.” (Our italics.)

Conceding that the instruction “follows the pattern suggested by this court in Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1004, the defendant respectfully suggests that the instruction was preju-dicially erroneous. * * * After directing the jury that negligence may be inferred, the instruction continues, ‘unless you find and believe from the other facts and circumstances in evidence that the occurrence was not due to defendant’s negligence, etc.’ And so the jury was instructed that they can only return a verdict for defendant of no negligence based upon ‘other facts and circumstances’ not including evidence of plaintiff having been a passenger, that a collision occurred and that the plaintiff was injured. * * * The instruction therefore improperly shifts the burden of proof onto the, defendant as well as the burden of evidence,,, contrary to th'e prohibitions of McCloskey v. Koplar, 329 Mo. 527,, 46 S.W.2d 557 [92 A.L.R. 641]” and, in effect, directs a plaintiff’s verdict. Defendant also . argues that the instruction, “requires the jury to consider and pass upon the evidence piecemeal to the exclusion of other evidence and not as an entirety.”

However, the above italicized portions of Instruction 1 are, verbatim, those suggested by this court in Harke v. Haase, supra, 75 S.W.2d 1001, 1004[9], and used in Missouri res ipsa cases by plaintiffs’ lawyers for twenty years. Too,, verdict-directing Instructions 5 and 6, given at defendant’s request, made very clear to the jury that defendant was not an insurer, was liable only if shown to have been negligent, should not be found negligent from the mere fact of the occurrence shown by plaintiff’s evidence, the burden of proof was upon pláintiff “to prove his casé by the greater weight of all the credible evidence in the case” and was not entitled to recover unless he had “discharged his burden of proof so resting upon him.” (Instruction 6 was almost verbatim that suggested in the Harke case for use by a defendant in stating a plaintiff’s burden of proof in a res ipsa case.) Compare Venditti v. St. Louis Public, Service Co., 362 Mo. 339, 240 S.W.2d 921, 926[7]. The assignment is overruled. .

Plaintiff was 36 years old at trial time, 32 at the time of the accident. He testified that before the accident he had had no trouble, pain or disability in his back area although he had felt numbness on the right side of his back in the region of his right kidney. He was in the army between March 1941 and February 1944 and received a-medical discharge because of “a non-functioning right kidney.” He had not previously “known anything about it.” While in service he had frequent urination and numbness in the right side of -his back “in his kidney region * * * but no other noticeable disability or pains in his back. And he had had no trouble whatsoever in performing the heavy work incident to' his military duties.”

After his discharge in February 1944, plaintiff worked first for Commonwealth Aircraft (“hooking cables onto gliders to be put on freight cars”), then for, Pratt-Whitney (“machine operator, various ma[187]*187chines”). In April 1946 he went to Perry, Iowa, and worked in a “garage and did odd jobs, mowing lawns and I tried working on other jobs.” He returned to Kansas City in September 1947 (for the purpose of studying tailoring under the “G. I. Bill of Rights,” 38 U.S.C.A., Secs. 693 et seq., esp. 916-984) and entered Twin Cities Tailoring School in December 1947. On March 1, 1948, he transferred to Heart of America Tailoring School and was a student in that school on the day of the accident, April 19, 1948. On August 18, 1948, he “voluntarily withdrew” from that school. He then enrolled in Weaver Real Estate School. He completed the real estate training course on March 4, 1949. In February 1949, after qualifying under a civil service examination, he began working at the Army Records Center (where he was still employed at trial time) and took further training in Lincoln Business School. He “voluntarily withdrew” from that course January 1, 1952.

Plaintiff- testified that he was “unemployed” in 1948 after the accident until he enrolled in the real estate school (August 27, 1948) and received some help from the Red Cross and Salvation Army, organizations which “investigated and found him unable to work.”

According to the V. A. records (plaintiff’s evidence), since his discharge plaintiff has drawn, and is still drawing, a monthly pension of $47.25 for his rated 30% disability resulting from his atrophied right kidney. Also: Between December 8, 1947, and January 1, 1952, except for periods of absence from training or employment, the V. A. paid plaintiff a monthly education-training-subsistence allowance of $120, and, after his earnings started February 16, 1949, less a proportion of h'is earnings.

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Bluebook (online)
273 S.W.2d 184, 1954 Mo. LEXIS 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-kansas-city-public-service-co-mo-1954.