*1 preservation part producing of the devoted to provide for that, income, upon appellant, so the death of the it should remain for or, that, appellant rejected so other beneficiaries the benefit will, made, contesting go such one-fifth provision should given legacy ap- The immediately to other beneficiaries. since, think, terms, and as we upon certain there pellant required public him to policy dispute which no consideration public policy no sanity father, there is consideration of his now consequences him from the requires court to relieve he choice made. Ellison, CC., Seddon and concur. judgment must be affirmed. coming into Court en Bane from
PER cause CURIAM: This adopted Lindsay, C., is foregoing opinion of One, Division J., except White, C. judges concur, All decision the court. Ragland, J., who dissent. City Appellant, A. Hogan, Com Service Kansas Public John pany. (2d) 707. May Banc, en Court
Kelly, Buchhols, appellant. Kiinbrell & for O’Donnell Watson, Gage respondent. &
Charles L. Carr and Ess *4 City police plaintiff, sergeant, ELLISON C. The sues a Kansas damages injuries for $50,000 personal February 16, for sustained 1921, police patrol wagon in a collision between motor riding operated by he was and a car the receivers of the Kan- Railways sas Company. resulted in City The trial below a verdict plaintiff giving for appeals, complaining defendant and eight for and of certain instructions the defendant the refusal requested instruction him. one times, in has been court three case tried circuit appealed. On trial a the evidence was thrice the first demurrer to re- City Appeals sustained and the Court of reversed and Kansas cause, reported App. as Mo. manded the (The only $7500.) At the second trial the amount sued for was then plaintiff (then) $15,000 re- had a for defendant verdict appealed. ceivers and remanded' the cause This division reversed defendants, give requested by as failure to an instruction report fully appears case more from the nisi appeal S. W. the third trial 404. After this second and before City Company Kansas Public Service became owner was, system liability casualty. for the street car and assumed therefore, respondent here. substituted defendant and is case be sent upon decide shall
We are now called whether again back of error the instructions. trial, for a fourth because protracted, Regrettable litigation be thus we as it is should that the giving our be done. In are driven to conclusion that this must *5 ground go much covered necessary reasons it will be over much be condensed as opinions, of facts will former but the statement possible. as
The during collision busy occurred day hour noon of a clear on Grand Avenue between Tenth and Streets, Eleventh one congested most City. sections of Kansas Grand Avenue there runs north and south, and sixty-four is wide feet between sidewalks. Along the center line of space this vehicular traffic were two par- allel tracks, street car the east one northbound cars and the 0|n west one for southbound cars. west side the west car track and about one and one-half feet plat- therefrom was a wooden form about four feet wide and high, nine inches which served as a loading unloading safety dock and patrons. zone for street car platform This long enough cars, for two street which would be 100 feet, appears about to have extended from about the center of the block south toward Eleventh Street. The block feet long, so the south end of the dock was ninety-two feet or north more of Eleventh Street.
There platform was a similar on the east side of the east car tracks, but located Apparently further north. the north end of the platform west was about even with the south end plat- the east form, though the evidence is not clear as to the north and south position platforms of these testimony the block. Some of the platforms both were nearer Tenth Street than Eleventh Street. edge platform From the east of the west to the west side of a street ear on the east track the feet, very distance was ten or close to that. The distance platforms, they opposite between the two each any part other of their distance, eight was seventeen feet and inches or thereabouts. The edge distance from the west the west platform to the curb east of the sidewalk on the west side of Grand space by ordinary Avenue—across the used southbound vehicles— twenty was about feet and six inches. patrol wagon
The going south Grand Avenue in response police to a call to headquarters, had nature not been appellant. traveling right disclosed to the It was a little to the street, the middle of the about astride the west rail west appellant street ear track. The was on the driver’s seat chauffeur, of the a man named but testified had no Pyeatt, he con- driving. police trol over the chauffeur’s Both were uniform. disputed being siren was sounded intermit- tently, sharp regarding speed but there conflict in wagon point approached collision, which was a as it loading platform. few feet south of north end the west The appellant per hour;- going testified it was to fifteen miles twelve twenty per hour, chauffeur said and that he could seventeen to miles twenty-five respondent’s stopped twenty within feet. fifty per hour, thirty-five miles speed fixed the at from witnesses patrol wagon prac- nearly correct, and this seems more *6 substantially damaged tically car demolished and the street though slowly nearly collision, moving stopped. was and had the latter point Other conclusion. circumstances to this same heavy time, There on Grand Avenue at was traffic consid- moving south, north and and a much erable number vehicles street, larger crossing pedestrians number of the sidewalks and on too, on the were, people back and forth. There a number of west loading platform adjacent it people passing and between and curbs both sides of the parked sidewalk. at the on Automobiles were street, along space loading There, dock. west of the west according testimony witnesses, building op- to the of some of the progress building temporary erations materials and were leaving space (out street, structures extended into the a narrow out loading ordinary platform) along to the west southbound ve- was, however, supposed pass. hicular traffic was There substantial way contrary, clear. part evidence to the that this just appellant car after the The testified he first saw the street wagon over a block north patrol Ninth Street. This was had crossed south; gently point sloped very to the of collision. The street ear was nothing view. The street in the contour obstructed the of the feet) end car-length (47 then south of the south about a barely Eleventh loading put north of the dock, which would it west testimony closely with the rather Street intersection. This coincides just Street, who said traffic officer stationed at Eleventh go north across allowing car to after his the street he blew whistle up wagon sounded patrol Eleventh he heard the siren Street stated police The chauffeur Ninth Streets. between and Tenth loading platform or near- car was south the south end fur- 200 or feet ly it, time was so when he first saw at which he wagon patrol did not see motorman ther north. The street-car block where wagon in the until after both the ear and the siren, did not police heard the collision had not He occurred. will be collision, as just police until before realize was ear explained. later it continued loading' dock police patrol west When neared the theretofore, which track straight south, following ear the street along to the dock, instead of around it to took the left trav- ordinary vehicles pavement adjacent where to the sidewalk This, less traffic said, because there elled. the chauffeur customary for other it was because street, in the middle of po- of a approach stop right curb pull vehicles to eight or ten at coming northward patrol. The street car lice passen- discharge for the stopping per preparatory miles hour saw chauffeur and the appellant gers loading dock. at the east
it, but assumed it stop would existing obedience to custom requiring street stop wagons cars and fire and ambu- sounding lances on the of the siren. However, the chauffeur testified gone he would regardless stopped whether street car or not. go
He on, patrol wagon did and when the and street car were about twenty apart, feet *7 less, or old man stepped off the west loading platform and started east across the street. The chauffeur swerved wagon patrol the in to the left or east an ineffectual effort to avoid striking him and collided the with street car head on. The street car had patrol wagon motorman the particularly not noticed until it change put made this sudden in H¡e emergency course. stopped car, it, brakes and had stopped the or about the at time of the collision. appellant’s pleaded: (1)
The petition of an ordinance Kansas City giving police right street; (2) patrols way any of the in a long standing by custom, appellant, relied on the for motormen to bring way stop give street cars to right a and thus the when a of police patrol approaching. Following was recital this is a that on question the in appellant chauffeur, occasion the and the while on police emergency a approaching leading call, were the docks Grand space narrow per- Avenue that docks too to the between the was rapidly moving wagon mit patrol a southbound and a northbound pass safety, petition street car to the con- therein in after which : tinues they driving through passageway
“That as said narrow be- Avenue, tween the board or 10th and Grand sidewalks at near Street opening aforesaid, a approached as northbound be- street car duty driver of said of street tween said and was sidewalks it patrol to stop permit police have car to said car and the said' street way opening the sidewalks afore- right through between said he said; street car before drove his the driver of said knew sidewalks, or, space into the between said board street car narrow known, police ordinary care, might that said by exercise of have sidewalks through opening between said patrol proceeding police patrol said very rapid pace, the driver of a and that at point south of said stop car to expected driver street at of said right way give patrol the said board sidewalks car street care- of said opening, the driver through said stop drove same said car and negligently lessly and failed to tracks, and between northbound pace rapid northward over at plain- police patrol aforesaid, so that the board sidewalks into driven said negligently so riding car and the street tiff collision, . . .” sidewalks, into came space between said board as follows: part in in ordinance as introduced The “Sec. 5&emdash;Police, fire departments, patrol, fire United States mail right vehicles and ambulances shall any have the inway street. upon approach any “That apparatus, police patrol fire or ambulance, every up draw practicable vehicle shall as near as right curb of the street remain at a standstill until such apparatus, patrol passed. shall ambulance immediately stop
“The driver of a car shall his car and keep stationary upon approach any apparatus. fire 6&emdash;Street right shall way, “Sec. cars have the between cross streets, except provided over vehicles, all other as in Section 5.” foregoing is an outline of the facts. will be Others noted opinion necessary. course Appellant’s assignment give
I. first is that the court refused his Instruction P-4. This instruction set out sections quoted proceeded: the ordinance as hereinbefore and then “You are therefore instructed that under said ordinance it was. duty way of the street-ear motorman to yield patrol wagon riding plaintiff any on which manner that *8 yield ordinary
the he said exercise care could the right bring stop, car way, and said a to to right way; necessary, yield in orldler to said if you and if find in this case that from the evidence way right negligently neglected yield said motorman to said mentioned, you if find as a direct result and also hereinbefore negligence police patrol of such the the collision between the plaintiff was street ear in caused and that mentioned evidence was ordinarily safety be as could in the exercise of such care for his own by reasonably person same or similar prudent exercised a under the (Italics your plaintiff.” circumstances then verdict must be for ours.)
(a) in the in proposition ¥e think of law stated the abstract should have jury struction is correct. motorman It told the the right way; yield stopped necessary the if stopping car the to can be declaration we cannot how the see correctness since, unconditionally doubted, expressly and the ordinance way But gives street cars. patrol wagons right of over the violated the respondent vigorously the instruction contends opinion with the in direct conflict rule of stare decisis that it is the former is true here before. of this court when the case was give Instruc- defendant’s opinion remanded cause for failure to the jury 411) the which told (317 540, D-2 c. tion Mo. 1. 297 S. c. car when stop his street require motorman to the ordinance did not on contentions ruling based meeting patrol; but that will dis- opinion reading A from now. different those made point imposed close the at was whether the an then issue ordinance duty meeting stop absolute as and when fire and unconditional upheld apparatus. so, broad, while the instruction there And by say ruling impeached this But even we cannot the former one. otherwise, obliged' if it were we the error since a would to correct injustice parties, would one of failure to do so inflict serious question important legal and the involves an construc matter —the busy city. [Murphy Barron, tion of a v. traffic ordinance of a 390, 400, Mo. 403.]
(b) notwithstanding all this must rule trial court But we rejecting instruction, suggested did not for another err reason by beyond respondent permitted jury to rove that it —which pleadings applying the and evidence. In ordinance £ac£g negligently ^ authorizes a if motorman verdict ^ right way any failed to This was yield the reasonable manner. upon petition, think, according put outside the we to the construction vague charge parties though petition in its is rather — negligence certainly true or not it was out whether that be —but himself, argues in his that un evidence, appellant, side the for brief yielded way proof only all motorman could der way by stopping. beyond ranging law an instruction settled that well might pleading We limits of or the evidence is erroneous. either instruction hold the the facts of this case error harmless under it is not given respondent complaining, and the had been always on facts outside predicate error instruction reversible actually jury not mislead record if the deviation does (14 49, 783, par. L. prejudicial party R. C. is not 791, to the other 160, Coleman, 151, par. 51; Cyc. 1621; v. 186 Mo. State Co., 978, 381; Ry. L. & Sub. S. W. R. A. 69 L. Schaefer St. 331) ; when 30 S. W. the instruction is refused A will of reversible rule is court not be convicted different. trial *9 give is sub instruction the instruction error for to unless failure stantially say correct, strictly entirely accurate. some and authorities Lightning 60; Cyc. 1707; v. St. L. Linton 187; 801, par. R. C. L. 38 [14 (Spring. (St. Apps.), 183,W. Viles v. Viles Rod Co. L. 285 S. Ct. 43; University v. Christian Apps.), 190 S. W. Trustees of Ct. up And Hoffman, 497, 69 W. so we must 474.] App. ruling trial of the learned court. hold respondent, but made Other of instruction are bv criticisms probably will they which go and evidence to of form more matters opinion by dis- shall extend the a trial. we not not on new So recur suf- say the evidence was cussing them, think and hold except to we jury. ficient to take the ease to the II. Much of what has been said preceding paragraphs ap
plies assignment to the next Appellant of error. complains
giving respondent’s D-3. Instruction This instruction counterpart a already having mentioned as one approved appeal. been says: on former jury instructs the that “The the ordinance read court require stop did a to his car when the motorman same meet- ing police patrol.” a already explained upon record ap- this court
We proved opinion, theory this in its instruction former showed the trial imposed duty an absolute the ordinance and unconditional that nisi, stop. to But in view the issues raised at the last trial we are for hold the instruction bad the reasons constrained to heretofore given. jury positively any expressed and It tells the without con- require the ordinance does not a dition 1,o restriction that motorman patrol; meeting respondent’s and stop car when street brief, they argue, indeed that it is irreconcil- counsel admit their ably plaintiff’s law in with the declaration of Instruc- inconsistent already point. on To approved permit P-4 tion which we have City say would be to that in Kansas the instruction to stand give patrol wagons only if and when right way to ears must stopping. they can do so without appellant’s D-3 conflicts with
In our also Instruction belief this as given the court is the same Instruction P-1. The latter as page Report on page 539 of Missouri and appearing on one opinion former Reporter, where Southwestern it to set out here. Suffice appeal reported, so we shall not requir if an ordinance say there was instruction declared wagons way patrol to ing give to street ears etc., stop, to requiring them a custom plain be stop, verdict should negligently failed to motorman fail predicated P-1 actionable words, Instruction this In other tiff. but on existence of the custom only existence on the stop not ure to saying us, equivalent to This, well. it seems ordinance as why (otherwise, stop mention required the motorman the ordinance D-3 con in Instruction it) with the statement which clashes give in together no taken trary. two instructions any In view the confusing misleading. point and are telligible declaration approving Instruction however, taken is not comment, This appeal. on this question not raised P-1. is a That giving of other instructions for re Complaint is made III. go we disposes the case shall foregoing spondent, since *10 1314 only
into remaining questions one the presented. The others
should disappear when again. the cause is Ap tried pellant exception giving takes of respondent’s the in D-ll, struction injury which declared if “the com plained misadventure, of was the result of mere accident or without negligence anyone, the fault or plaintiff the then cannot recover objection . . .’’ theory The made is that no instruction on the proper accident was in this case. Respondent justifies grounds: (1) the instruction on two that under evidence jury participants the the could have found all the (2) of blame; that, they occurrence free could and at acquitted negligence least the appellant have and the motorman of responsibility chauffeur or old have fastened man stepped platform wagon off the patrol who and forced into argued collision with the ear. It is that since both these parties litigants last under named were not the control strangers negligence suit, are did not the event their make any accident, Answering purposes of this less an case. suggestion is this second contention inconsistent with predicated terms of instruction on absence because latter anyone, respondent negligence part replies that this respondent against of which in the instruction was error limitation only assign- appellant complain, not, cannot does his fact given. being ment no should been accident instruction are deciding, foregoing without conclusions of fact Granting, of law not follow. evidence, under the the conclusions do allowable instruction respondent will an accident noticed the assumes (par proper parties an that the permits if the inference negligence. This is not the litigants) innocent ticipants tending show the something law record unless there every true ac casualty It is not from unknown resulted cause. "When, as may on accident. in which court instruct cident case persons of known here, from known actions the misadventure resulted by is error giving instruction things, an accident following are authority great weight in this state. of recent decided has been Supreme only, point the same cases Court 169 City Louis, v. of St. appeals: all the courts of Beauvis three of Mo. Co., 198 1043; L. Transit 506, Mo. 69 S. Wise v. St. 500, W. 638, 205 Brewing Assn., Mo. L. 546, 898; 95 v. St. 559, S. W. Zeis 355, 331, 99; Co., Mo. 648, Transit 104 W. v. St. L. S. Beave 208, 195, Ry. Co., Mo. 52; Elec. S. W. Felver v. Cent. 104, 116, 111, Ry. 222 Mo. Co., 980; Met. St. S. W. Briscoe 178 S. 2), (Mo. Div. Co. Ry. St. 1162; 120 S. W. Met. Simon v. 103; Beard 197 W. Dunham, 449; Turnbow v. *11 1115 Maloney 907; v. 197 156, S. W. 142, 272 Mo. Ry. Co., Pac. v. Mo. St. 515; Dietzman v. 509,W. 2), 237 Div. S. Rys. (Mo. Co. United McLoon, 59; v. Chaar 214, 254 S. 196, Co., Screw L. (Mo. City of St. Louis v. 174; Hanke 263 W. 245, S. 238, 304 Mo. (Mo. Div. Lbr. Co. Leming 937; Head 933, 272 W. 1), Div. Ry. (Mo. Div. Co. & S. F. L. 444; Boland v. St. 441, 281 S. W. 1), 141, 145. 1), 284 S. W. in and sometimes acceptation “accident,” popular in The word design or or arising without intent may an occurrence law, denote negligence it law man; in the but from the carelessness even from an injury, proceeding damage resulting or in signifies an event agency or human known cause without or from a unknown cause seq.] seq.; 20 C. L. et R. et fault. C. J. human without [1 one to happening be that the requirement The essential Lime v. Peerless White contribute. fault does not human [Hoffman of ac- when the cause But 317 Mo. S. W. Co., 746.] is- specific the jury on known to instruct cident is it better up under our grown has practice presented, of fact and so sues instances to giving of accident instructions limiting case law is unknown— tending show cause in which there is evidence con- contrary course would more abstract theory au- import of the jury. understand to be This we fuse the thorities. (169 Mo. Co., supra v. St. L. Transit said in Beauvais
Thus 506) l. : c. in case applicable to a sometimes kind is
“An instruction of that doubt that it in so much which the of the accident is involved cause certainty it is attributable with be ascertained reasonable cannot application to the negligence no party, of either but it has by the defect caused either facts of this case. This accident was alone, plaintiff negligence of the by in sidewalk or that and the contributing, ample instructions.” jury had points and on those 560): (198 Mo. c. Co., supra l.
And in v. St. Transit Wise Louis any misad- or “There no in case of accident by the evidence pleadings and venture. The issue tendered not, and the court simply negligent whether defendant conjecture and inviting jury in not into field speculation.” 651), a l. c. Brewing Assn., supra (205 Mo.
In Zeis v. St. Louis condemning an Banc ease which the entire bench concurred instruction, accident the court said: by both case, offered considering
“If in the after all the evidence negli- plaintiff found defendant, is no evidence and there injury gence, injury, to be the is said with then the resulted of an happening pro- result accident. An accident is the of an event ceeding from an unknown cause.” says will quotation be observed there is no evidence of
negligence accident; attending happening a misadventure, is an say goes and then accident is the an unknown an result put together' they Both are true, cause. statements are thus misleading. may negligence when cause There absence of injury is not results known act unknown —as where from the person always of a human fault. But case since been without has *12 determining purpose of understood to mean that an accident—'for the propriety origin in the instruction —must have its an accident an unknown cause. length McLoon, su The matter is at Chaar v. considered some
. (304 might re pra seq.), many be 245, c. et other cases Mo. unduly already in an viewed, extended discussion but we have the cer effort to the rule—because there are demonstrate reason for the Sawyer In v. support respondent’s tain cases which contentions. 382-, Am. the 240, 262, 90 Dec. Co., H. & St. J. Railroad Mo. night injured wrecking of in the plaintiff: through a train the was during enemy” bridge by “public had the at a been burned .which unkown if were unknown and Civil War. This court the facts said bridge that burning to the it able conductor “then was injury, was and in reference cause of the sole accident pure it or misadventure.” conductor and the defendant was accident given. And in properly It was an was ruled accident instruction 822, 819, 2), 256 S. W. (Mo. Div. Lehnerts v. Otis Elevator Co. injuries eye from a workman in an shaft received his elevator employ plaster person working different by for a dropped another by plaster to fall others caused er. This court saidi: “If defendant, fault over whom had control and without defendant no are here involved then such w'as so far as the issues act an accident concerned;” approved. and an accident instruction undoubtedly respondent’s contention
These two cases sustain wholly awith injuries responsibility plaintiff’s rests that where for instruction, which third party an accident the defendant is entitled to means, free such course, parties if of blame to the suit are question the vital an instruction is overlook proper. But both cases cause— unknown as to resulted from an whether the occurrence not, de one was indeed, first the rule when the had been evolved they consideration, point cided; controlling and in view of that the conclusion This, apparently, do discuss academic. becomes 115 S. 195, 208, Ry. Co., Elec. Mo. reached Felver v. Cent. up. question where came the same list of decisions authority to. In the One more should be referred say that when many cited earlier in are this discussion plaintiff’s injuries by were caused evidence shows a either the de plaintiff’s negligence negligence concurring or or the fendant’s both, negligence given. an accident instruction should not be Reasoning premise has been said in a case, from that it recent Yawitz (Mo. 286 W. 67: 1), Novak Div. v. instruction, permissible all,
“An accident if at is be- authorized injury shows, justifies inference, or cause an negligence part plain- resulted in the of either the absence only can defendant. where it be said a matter tiff injury negligence law that could not have resulted without finding given, and, be that an accident instruction should party negligent, neither approved can be under the evidence that ’’ given. then an accident instruction should so, If it an But does not follow. we this conclusion submit every given ques where case instruction should be accident alone; jury negligence of the tion as to defendant long simply has that when the issue is one of the de been ruled non, an negligence giving fendant’s accident instruction vel 560; Co., Mo. l. c. Turn supra, error. L. Transit St. [Wise c. cases Dunham, supra, bow v. When the line of l. 65.] place say no if the evidence instruction has mentioned accident negligent acts of one or was caused show misadventure *13 it meaning is in those circumstances parties, that both But. resulted' from known causes. established the occurrence stands though negligence as hand, be a doubt the other there mishap. as the cause of the is also does not follow there doubt Negligence or omission: simply quality of an act of commission only supports the occurrence an inference that when the record and given. may unassignable the instruction be cause proceeded from of his automo- door this the defendant slammed Tn Yawitz case finger. plaintiff claimed defendant on the defendant’s bile negligent; plaintiff and negligent; was claimed the was the defendant possibility in- holds case both were to blame. The there having door, slamming (2) (1) and jury resulted from frame; jury might finger well concluded that the door brought negligent; whatever plaintiff nor defendant neither injury; acts was cause two of these the coincidence about unknown, in- jurv an accident find cause if could and proximate law of going into the Without was warranted. struction hardly could rule there be the correct clear that this is it not cause involving contributory negligence in which negligence a be case for, say who could be not called instruction would accident an why time? negligent same at the parties happened to both in this case instruction giving accident We think error. assigned, cause is reversed remanded.
For the reasons CC., Lindsay Seddon, concur. from coming’ into Court en Banc cause
PER CURIAM: This C., adopted foregoing opinion of One, the Ellison, Division Ragland, White, J., Gantt and C. opinion court. Atwood, J., JJ., dissent; Blair, Frank, concur; Walker and JJ., sitting. Company Realty Gary Hall, P. Willard The State ex. rel. (2d) Judge County Court. 17 of Jackson Circuit Banc, May 25, 1929.* en Court *14 Opinion rehearing filed December 1928. Motion for overruled *NOTE.— May