*1
Beeson
v.
accident,
may
minutes
we
thirty
after the
well conclude
sight
train,
presence
in the
of
made
of the wrecked
the
jured
.
parties,
by
passengers.
.
.
and while surrounded
excited
rule,
declarations,'
The modern doctrine has
the ancient
that
relaxed
strictly
to
part
gestae,
of
res
must be
contem-
admissible
the
poraneous with
main
It now allows evidence of
transaction.
them,
appear
have
made under the immediate
they
when
do
to
been
transaction,
so
and are
connected with it
principal
influence of the
”
explain
as to charactei’ize or
it.’
thoroughly
the recent cases
question
This
has been
considered
Pryor
Payne,
Rosenzweig Wells,
(5);
v.
of
Furthermore, the evidence proven Mrs. substantially same as the declaration truck, harmless, declaration was even if it The admission of the Reinart. Martin, part gestae. not a were res [State 530.] City opinion Appeals the Kansas Court of judgment of sitting. Bailey, accordingly quashed. C., adopted opinion C., is foregoing PER CURIAM:—The Higbee, judges All concur. opinion as the the court. Fleming Beeson, Appellant, Fred W. Francis W. Janet City Company. Railways Wilson, of Kansas Receivers Two, 25, 1926. June Division 1. tes- Res Gestae. The EVIDENCE: Collision: Statement Automobile: timony ting passenger sit- of a on defendant’s north-bound street who was at a an automobile street on the front and saw the car collide with seat feet, that, immediately following collision, jumped crossing, his motorman, “How and asked him: came fellow went run you?” replied: “He ran around that car” into motorman question (a competent. car) “and ran into me” was Both south-bound were admissible on behalf the answer of the motorman of the witness and gestae. part of defendant a res Concurring Ignoring Negligence. there is Where sub- INSTRUCTION: of the automobile stantial evidence that intersecting street, turning onto street car track into a running car at an excessive ordinance, give which, a it' is error to instruction violation of itself, complete in to return a verdict for defendant directs unless was alone the cause find defendant’s passenger injury in the automobile when it who was 315 Mo.—12. op Missouri, [April You. Term, ignores negligence,
street car collided. Such an concurrent instruction single presented authorizes a verdict issue defendant evidence, disregard total main issue. seeking 3. fendant on the de- -Violation Ordinance. An instruction excuse *2 ground an or- automobile violated defense, pertinent parts a set dinance should forth ordinance, stituted a violation jury and then tell the facts what established evidence con- jury thereof, that, they then direct the find violation of the ordinance was the sole and cause driver’s injury should return verdict for defendant. Juris-Cyc. Evidence, J., 545, 455, Corpus p. 22 References: C. Section n. Railroads, p. New; Cyc., p. 74; p. 1561, 36 n. 17 n. 74. 79 n. Street New; p. 1641, n. 19. Appeal from Jackson Circuit Court.—Hon. Judge. James H. Austin, and remanded. Reversed Cell, F. B. B. Brewster and J. appellant.
John M. Fisher for (1) alleged colloquy The had Sanger between the witness incompetent for purpose. part It was not gestae. light res It did not illustrate or shed on how the collision place. took statements are self-serving, clearly designed The to ex- what happened cuse motorman from blame for had and intended jury that all upon Witty cause decide the blame was with- giving jury any out decide, facts which to and said testi- mony highly prejudicial. Co., Adams v. Railroad 74 553; Mo. Leahey Ry. Co., 165; v. 97 Mo. Redmond v. Railroad, 1; 185 Mo. Koenig Ry. v. Co., 698; 173 Co., Mo. v. Gotnald Transit 102 App. Mo. 492; Rosenzweig 273 Wells, 1074; v. S. W. 1 Wharton’s Law Evi- dence, (2) giving 1-D, sec. 259. of Instructions 2-D and 3-D as modified the court and 5-D and 7-D for was error. Hall 351; v. Coal & 26 Co., Coke Hinzeman Railroad, Mo. v. 182 611; 265; Ry. Mo. v. Co., Moore Transit 126 Mo. v. Co., Holden 177 456; Mo. Long 984; Ellison, State ex rel. v. 199 S. W. Humphreys Railroad, v. 178 S. 233.W.
Charles N. Sadler respondents. and Louis Weiss B. Testimony (1) Sanger of witness was properly received. Dec- injury laration need not be coincident with to be admissible as res gestae. Pryor 304 Payne, v. 560: Co., Mo. Noland v. Morris & 212 App. 1; Mo. Ry. Grant Co., 334; v. K. C. Southern 172 Mo. App. Dunham, 900; Yaughan Railroad, Shore v. 178 S. W. v. 177 App. Mo. 174; 514; State v. Martin, Leahey Fairgrounds 124 Mo. Cass & v. Ave. 179 Beeson v. Co., v. Ins. 165; 376; 97 Mo. Landau Travellers 267 W. Ry. Co., S. 308; 192 Casualty Co., App. Mo. v. Nahorski v. Elec. Ter-
Greenlee 751; Ry Co., 271 Barz v. Fleischmann 271 Co., minal S. W. Yeast S. Rosenzweig (2) 273 361; Wells, v. 1-D, S. W. Instructions W. 3-D, purview 5-D 7-D within pleadings 2-D, evidence form, (a) negligence 'per It is and correct se to violate ordi- Co., 90; Borack Safe 288 Mo. v. Rooney nances. v. Mosler Yellow Baggage 668; Co., Adolph Brown, 947; Cab 269 S. W: 255 S. & W. App. ; 182 Mo. 182 Railroad, Leritz, App.
Yonkers Stone 182 Mo. (b) “negligence” define the term Failure to is not error. 831; Brooklyn Greer, Co., Smith v. 257 W. Duvall v. Cooperage S. 589; 867; Sweeney Railroad, Malone v. 213 S. W. v. Cable' Ry. (c) Co., 401; Duncan, West S. W. 128. It is unnecessary require act find an pronounces negligent. Milling
law S. Haake v. Dulle W. .153 Borowski Biscuit Ellison, State ex rel. v. *3 (d) Negligence presumed. Pippin
S. W. 987.
will
v. Con-
not be
Co.,
App. 360;
Railroad,
struction
187
186
Mo.
Whitesides v.
Mo.
App. 619;
639;
Ringling,
Witting
Railroad,
King
101
145
Mo.
294;
326;
Ry.
Finir
App.
Railroad,
App.
Mo.
161
Warner v.
Mo.
(e)
injury
negli-
to define cause,” or “concurrent “sole cause” gence.” Maloney Rys. Co., 515; Berryman S. v. United 237 W.
Surety Co., Ry. Co., 877. Wolters v.
RAILEY, 8, 1921, C . This action was on November commenced August in 2, the Circuit County, Missouri, Court of and on Jackson first setting After out formal petition amended was filed. matters, charged against re- petition amended said grounds: on said car at First, operating ceivers two in street said place excessively dangerous high time and at rate of an hour; second, operating in to-wit, twenty in excess of an said in City, street car violation of Mis- of revised ordinance Kansas souri, time, regulating speed cars, in force at of street same being page on 720 of the Section found Charter and Ordinances City, Annotated, 1909, as follows: Missouri, of Kansas shall, No Speed any street car “Section Street Gars. of upon, case, operated city run or over or across street in this greater speed rate than twelve miles hour.” at a of general coupled plea Respondent’s denial, with a answer was of allegations contributory by plaintiff’s negligence, followed in- any, proximately if caused juries, were plaintiff Witty driving the automobile H. A. [April Term, You. Missouri, dangerous cir- riding speed at an excessive and rate of under in petition, It is averred at that, cumstances. the dates mentioned regulating riding, thereto, No. 28759 Ordinance and amendments travel, standing stopping, and traffic and boulevards streets 11 of said or- city, effect; of said full force and that Section dinance is and as follows: right. meeting pass
“A shall on the vehicle another overtaking shall'pass “A the left side of the vehicle another on entirely pull right clear overtaken vehicle and not over to the until it, except overtaken, is it shall be when a street car right.” street car’s
That ordinance is as follows: Section said turning intersecting “A vehicle when to the left to enter passed beyond center of such shall not turn until it shall have ' intersecting street.” Witty negligently the automo- alleged that said H. A. drove It is riding doing and in violated said Sec- bile in which so overtaking, aforesaid, tion of ordinance then and there and at- tempting pass, a south-bound street car east or left-hand car; Witty negligently side of the south-bound street said drove said automobile in of'Section 14 said violation ordinance, then undertaking left, ostensibly to turn to the pur- there for the pose entering intersecting street, reaching before the center intersecting street, required by of said said ordinance.” It averred, op- that the aforesaid Witty, acts of said erating severally concurrently, directly caused juries, any, for which defendants are not liable. reply charge properties admits that defendants were Railway Company answer, said in the amended *4 riding in an
admits that was automobile driven H. said alleged Witty, petition. A. as in her first amended reply de- every allegation nies in the answer. other February during 12, 13, 14, was tried The case 16, 1923, verdict returned on said last mentioned date favor judgment accordingly. February 19, rendered On 1923, plaintiff trial, overruled, for a filed her motion new which was appeal an granted her to this court. Lashbrook,
Frank behalf of substantially testified was in follows: That he the front seat of the motor car with same; Witty, H. A. who was the driver that as the south-bound street car slowed down for the intersection of 14th Street this au- following eight it, about or ten feet behind tomobile, turned east, entering upon the north-bound about track twelve feet north of Street; 14th that the the north curb line on north-bound street car running eighteen collided automobile was with the or twenty Beeson v. running had hour; ten or twelve miles that automobile been following car, south-bound street and that when miles hour it feet the turn the east was made the automobile was twelve Street, presence north of the intersection of 14th speed discovered; that of the au- north-bound street car then was twenty per hour, was then to fifteen or miles tomobile accelerated get automobile could across the north- but before the driver track, traveling above rate of collision oc- bound at the curred. near-by H. who was on a stool in a
Charles seated Bedingfield, made a testified that the automobile left- restaurant, substance Street; turn, intersection at 14th hand a few feet north of the following from rear within four feet end south-bound per hour; he running miles saw the north- fifteen automobile, and first when it hit the it was bound car for the time hour; traveling eighteen miles then about going eighteen and was about
speeded up as it turned east per hour when struck. plaintiff substantially Eugene Elser testified as fol-
Everett building came when the automobile north line lows: That east; opinion swing Street, of 14th started to his north and cars at the-intersection of south-bound street Street; did not see accident. 14th that he by the bill of testified, exceptions,
Mrs. as shown Janet Beeson f : ollows
“Q. you Witty Mr. was a or reckless Had noticed that careless No, thought Tiding it. I was sir, A. I never much about driver? automobiles, and never— afraid of and never was way in which ”Q. any was driv- you pay Did attention he prior.to A. happened, this collision? No. ing morning this visiting seat, with the ladies the back and was course, I was Of paying any attention. not safety entirely Witty?
“Q. your the hands of Mr. placed You Yes, sir. A. yourself? any out for street cars “Q. you not look A. And did No, sir. any you way him in did
“Q. careful, did not caution Nor you? A. No. going or
”Q. pay did not attention where You ladies, INo; visiting with those driving, you? A. and I did I I did not see the accident. did see is the reason suppose that *5 all, bad, I hurt so is the reason suppose I can- and I was the ear at it.” remember about testimony brevity will out the we not set sake For the defendants. Their evidence produced witnesses numerous Term, [April Yol. Missouri, oe tended up to show that when the south-bound street ear slowed for Street, intersection 14th automobile, of Main and this still from thirty ten to intersection, running high speed, north of at feet turned the north-bound track from behind this south- passing bound street car at a time when the two street cars were proximity each other and in to north-bound such close inevitable, although car that a collision was this north-bound street per car traveling only speed eight of from to twelve miles at hour, varying speed. the several witnesses in their estimates as Inasmuch all the showed that the automobile turned Street, left before it ever the intersection of 14th reached theory defendants that the driver the automobile impatiently trying slowly moving pass south-bound street ear by proceeding it. on the left-hand side of Plaintiff’s evidence tended although to show that turned east before the intersec- reached, it on purpose proceeding tion was was for east 14th Street, after which it was their intention to come back the Union Witty, question, Station driver of the automobile in for lunch. produced was not as a witness. presented considered, for review will be
The matters here far opinion. necessary, I. It is contended that reversible error was committed the trial Sanger, permitting E. court E. witness F.fis to detail the conversation between Arlie O. Williams, Gestae. car motorman of north-bound street which collided with riding, the automobile in which and himself. appears Sanger’s It dentist, that he is a from Mr. evidence Oklahoma; at Jukon, City, lives that he was Kansas Missouri, on 2, 1921, passenger November and was on said date a on the north- plain- bound street car which with the collided automobile which riding; collision, tiff was that he witnessed said was at the time either in or next to the front the front seat runs cross-wise, Bradfield, with his J. E. when heard brother-in-law, crash; he companion that he was next to the aisle and his next the window; car that the south-bound street the north-bound car on 14th riding Street; that the car which was traveled at he about twelve hour; immediately following jumped the collision he right feet, motorman, his went and said to him: “How came automobile) you.” (referring that fellow” “to run into objection Over the the witness testified automobile) (referring said to him: “He” to driver “ran around car and ran into further testified that when me.” Witness left the ear he was ten or twelve feet of the about motorman. He position then described the of the motorman and being automobile as *6 183 Beeson v. when the above conversation the collision occurred near where occurred. admitted the answer of objection the court
Over the Sanger, propounded by question witness gestae. Appel- part theory admissible as the res that it was admission of said testi- properly exception, lant saved her mony assigned is now error. contention, her by appellant, support
Several eases are cited has respect to said matter but the rule of law there announced subject by materially view of the taken modified, been broader En court, in both Divisions and opinions the more recent of this Banc, Rosenzweig Wells, v. 273 S. some of which as follows: W. Rys. Co., 751; 271 1074-5; l. c. L. E. Ter. S. W. l. c. Nahorski v. St. 361; Barz v. 271 W. Landau Travelers’ Co., Fleischmann Yeast S. v. 378; Payne, 574, 304 Mo. l. Co., Pryor Ins. l. c. vs c. 263 S. W. 985; S. l. Hide 295 Mo. l. W. c. Unrein Oklahoma c. 119, 231 924; Cruts, 606; 288 Mo. l. c. State c. l.
May
Q.
B.
284 Mo.
c.
225 S.
v. C. & Railroad
l.
l.W.
65;
Railroad,
l.
Martin,
c.
Hinzeman
199 Mo.
c.
State
v
651; Leahey
Kaiser,
Mo. l.
Cass
c.
State
Ave.
Ry. Co.,
& F. G.
We are the trial court committed no error in overruling assignment. the above
(a) by put on the The motorman was stand defendants tes- traveling behind the tified that the automobile was south-bound car eighteen southeasterly direction, going twenty or moved out in a of the north-bound hour, and struck the corner street car. plaintiff testimony given witnesses both and defendant clearly traveling behind the shows south- shortly reaching bound before the north curb-line of 14th left, traveling rapid Street while at a turned to the rate of answer, violation of ordinance in the and col- lided with north-bound street ear. The statement of the motor- Sanger part man admitted in evidence as a properly testimony in the gestae and true ease. res shown to be is without merit from assignment The above of error view- point properly overruled. by appellant
II. It is contended that the trial court committed giving jury, error in in behalf of reversible as follows: 5-D, which reads struction numbered proof burden of instructs that the “The court plaintiff preponderance greater prove your or satisfaction weight defendants are that the testimony, credible [April Term, Vou. oe Missouri, you as submitted to in the instruc- court’s Ignoring tions, and proof this burden of continues and abides Concurring plaintiff with throughout trial, the entire and unless Negligence. you believe and find from the evidence case that proven has by a preponderance of the credible your *7 reasonable guilty satisfaction that the defendants are of negligence, as defined in court, and that the instructions the such
negligence was proximate plaintiff’s injuries, direct and cause of if any, your then verdict must be for the defendants.”
This instruction complete itself, within authorized verdict for defendant, if jury indicated, found the facts and therein com- pletely ignores the negligence tending concurring evidence to show of the automobile driver and words, defendants’ motorman. In other there was offered, substantial tending evidence to show that driver of the guilty negligence; automobile was and also substantial tending evidence to show that negligence the motorman was in running the north-bound street car at an excessive rate in violation of the petition. jury ordinance in If the believed from the evidence that plaintiff was in the care, exercise due and injured she was concurring negligence of the driver and motorman, she jury, was entitled to recover. The however, were precluded from disposing concurring of the case on the above instruction, which in told them that order to find for plain- tiff, must find that defendants were their “negligence was the direct and cause of in- juries,” etc.
Upon assignment a careful consideration of the above we have reached the conclusion that in giving error was committed of said Instruction 5-D.
In Hamilton, Dameron l.Mo. c. where numerous au are in pronouncement, thorities cited we said: complete “This itself, instruction is within authorized ver- in jury dict behalf of if defendant found favor of the latter presented issues therein. In order that such an instruction judicial should stand test it criticism, must be consistent with- itself, reasonably presented and must oppos- cover the issue parties. ing provisions inconsistent, If its contradictory, or ex- jury clude from the consideration of the vital case, issues recovery any it authorizes a without thereto, reference it should be condemned.” following Heigold
To the same effect are the authorities: v. United Rys. Ellison, 271 S. rel. W. l. c. State ex Mo. l. c. & S. W. l. c. Hall v. Coal Coke 260 Mo. l. c. 367 following; 526; Wojtylak Stubblefield, State v. v. Coal Co., 188 Mo. l. c. Beeson giving In- charged with error in defendant’s court is
III. The 7-D, which reads as follows: struction jury presumption that there is no neg- instructs the
“The court charge ligence car part of the motorman men- presume evidence, tioned in must from the - this occurrence while said car was in fact of mere Further of charge motorman, upon plain- of said but it devolves Concurrent prove by preponderance tiff to of all the credible Negligence. any, injuries, that her were caused by the of said motorman defined the court’s your structions, proven, she has so verdict must be unless for the defendants.” preceding 5-D, ignores
Like the Instruction the issue of con- curring negligence driver and of the automobile the motorman. What applies equal said 5-D respect we have said in Instruction with must 7-D, to above Instruction likewise be held force erroneous. 5-D ruling respect As to said Instructions and 7-D neces- remanding cause, proper a reversal and it is sitates to refer *8 in 1-D, given 2-D behalf of 3-D, to Instructions and defendant. by appellant 1-D, given
IV. is insisted that Instruction in .It court, properly behalf of modified the does as manifest, counsel, the law. It is that defendants’ declare with the proviso appending aid of the to said instruction the court at the sought jury thereof, issues, (1) to submit to the conclusion as guilty negligence the automobile was to whether the violating turning 11 and of Ordinance No. Sections shortly arriving at the north Street, to the left before line of 14th moving left rapidly and north-bound street car (2) moving thereon; north a car and track front of whether driver&emdash;if negligent&emdash;was he was thus plaintiff’s injuries. the collision and sole, proximate cause of jury, told instruction, legal effect, should have The that Sec- was in full and force effect in tion of Ordinance No. Kan- aforesaid; Missouri, the time of the collision sas at con- City, to-wit: following requirements, traffic tained pass meeting right. shall on the A another “A vehicle vehicle pass shall on the left side overtaken overtaking another ve- entirely right it, until clear of pull except over to the and not hicle overtaken, it shall car is street car’s when a street ours.) right. (Italics that if the jury been told driver of
The should then have the au- following feet behind south-bound tomobile a few street car short Main and when within a distance north of Street, he turned to left moved his north of 14th Street auto- line op [April Term, Yol. Missouri, rapidly mobile on to the north-bound street car track front of moving thereon, by street car reason of which a north-bound colli- sion occurred, neg- driver of the automobile was then said ligence violating 11 of the ordinance aforesaid. The Section should then be told that of the driver of said au- injuries, tomobile was cause of sole recovery against there could be no these defendants. suggestions respect 1-D, Y. The above mentioned in to Instruction apply reframing will 2-D and 3-D of Instructions on a re-trial of the case. pointed out,
YI. On of the errors account heretofore the cause Iligbee, C., is reversed and remanded for a new trial. concurs. adopted PER foregoing opinion isC., CURIAM: —The Railey, opinion judges concur; White, All of J., court. in result. Myer Judges ex al., State rel. Clara H. et Daues Charles Appeals. of St. Louis Court Two,
Division June ARGUMENT TO JURY: Failure Produce Witnesses: Reasonable Infer- automobile, traveling ence. A street car ran the back end of about into hour, light burning, relator, occupant ten miles an tail the au- tomobile, injured damages. and sued for The motorman and conductor suddenly rapidly alley ran testified that out of an *9 directly conductor, immediately in front of the street car and was struck it. The rebuttal, plaintiff in called as a witness for testified that at the passengers time the accident there were ten or twelve in the street got report their names and forwarded them with his and that of the ac- company. unavailingly the defendant Defendant cident to moved to strike testimony, colloquy plaintiff’s and in a between court and out this counsel “They witnesses, attorney cross-examination produce remarked: had the didn’t but them.” On passengers the witness was asked: “Did tell they Objection you was sustained. question by plaintiff that saw the accident?” argument In his counsel “Let said: testimony. says look at the conductor’s He there were ten us or twelve they passengers on that car and saw the accident. The they not company. They took their names and that were sent to the here, away none of them. The was taken in an ambulance opportunity get Held, may had and she no names of witnesses.” fairly passengers opportunity inferred that the ten or twelve had to ob- may collision, light experience serve the and in the of human be assumed their names and addresses were furnished conductor duty they might litiga- course of his be used as witnesses in case of collision, growing being power tion out and it within the of de-