*1 895 as to law of a ease.” Metropolitan Ry. St. (Banc), Co. [Loftus 470, 481, 220 Mo. 942, S. W. Wells, 945. Yuronis v. 1039, 322 Mo. 518, 1047(II), (2d) developed We have 522[4].] beyond presentation conclude, issue unless Ave.do violence made, granted to the record the court a new trial mis belief, taken 108, jury (consult misdirected the 1939, Sec. R. S. Mo. Stat. Ann., 1002, p. 1264) sec. and not on ground of factual discretionary might over which powers matters because, if be exercised so, specified the order would additional instructions. materially situation differs presented from that Co., supra, Arnold v. Alton Rd. Avhere the court’s order embraced all of defendant’s instructions. granting
The order a new trial is set aside and the cause remanded Avith directions to reinstate the verdict of the and enter Cooley CC., thereon. and Westhues, concur.
PER foregoing opinion Bohling, C., adopted CURIAM: The of the court. All the concur. Hattie White v. Company, Corpora- Public Service tion, Appellant. 375. April 3, Two,
Division 1941. *2 Murray, Trippe, Eepping & Houts for Eogsett, L. Carr and Charles appellant. Thomas, B. Thompson
E. E. William Barnes and <&Osborne for respondent.
WESTHUES, C. This case was certified to this court because of a opinion among division of the Kansas Court of Appeals. adopt the We statement [See 711.] Appeals. case Court It reads as follows: as.made damages
“This is an for personal injuries. action Plaintiff recovered a verdict and in the sum of and $800 defendant appealed. has show plaintiff, woman, “The facts that injured by colored was
being one of cars, eight defendant’s street about a. m. on February 3, 1937. Plaintiff injured was point at the where de- tracks, fendant’s double street ear running south, north and inter- sect the sidewalk on the north side of Street, 63rd an east and west City. street in “The shows evidence that defendant’s tracks are upon not laid
public they street as approach 63rd north, Street from the appar- but ently upon way. a private right Defendant maintains, small building a dispatcher’s used for office about feet north of where building for stop at this cars Southbound struck. was business to transact thereof operators permitting convenience, pas- matter of As a there. located dispatcher with the premises point, the discharged at this taken on sengers are 63rd Street. building on to the sidewalk asphalt paved with which southbound a passenger was “Plaintiff building dispatcher’s opposite end about its front with stopped the front alighted from Plaintiff her. afterwards struck and which being a Street, there 63rd on toward proceeded car and end board. intended thereof, which she side standing on south bus track, rail the southbound west of the west to the walked little She 30 feet point about reached car, and when she to the her back with shows The evidence alighted, was struck. she she from where south . been up, could have after it started car, at time approach plain- of its The ear feet. sounded within *3 away from it. anything after started hear of it she or tiff did not see plaintiff, car the did not strike “According defendant’s evidence to safely alighted by falling after had injured reason of she but she was up. it started car and before from the the alleged appeal on this is the error of point raised
“The sole One, No. which reads as follows: giving instruction plaintiff’s of “ the jury you if and believe from instructs the find ‘The court question, in the in case that defendant owned street this evidence by furtherance employee, defendant’s in the operated and same was February you business, find, if and that or about so on of defendant’s regular stopping alighted car, street at 3, 1937, said the plaintiff evidence, you find, alighting, after in if and point mentioned so Sixty-third Street, southerly toward in a direction plaintiff walked you find, evidence, in if and thereafter defendant’s mentioned so motion, you find, that car in if and started said street so operator south, was in a imminent position walked toward the she of plaintiff as car, danger being by if and of defendant’s said street peril danger, you find, plaintiff peril that was oblivious such and and to so you find, operator saw, either if and that defendant’s or so ordinary care, plaintiff position of could have seen in said exercise you danger, find, thereto, if peril of imminent and so and oblivious thereafter, so, by if so, appliances if in time the use of the on said safety himself, with to car, and reasonable defendant’s street you find, have, by if ear, passengers thereon, and to the exer- so ordinary care, car, so, either said street if sounded cise of or warning thereof, so, thereby if approach an audible and you find; prevented plaintiff injured, if so “ you operator ‘And that exer- to find if further defendant’s failed ordinary care, negligently, stop and said street cise so if failed car, so, negligently, so, warning and 'to audible sound an if if failed so, approach car, said street and that as a direct result of of if car, so, so, said or to sound failure, slop negligent lo such if if so, a so, plaintiff, and as it struck approach, a if if your you find, then verdict injured, result she was so direct if thereof City against Public be Hattie White plaintiff must for a and this true under the above Company, corporation, Service you you though forth, find them even should set if so circumstances guilty plaintiff herself was and believe from the evidence find place, injuries, her negligence at time and which contributed to said danger, you getting position peril into if find, if said so contributory any, plaintiff, any, negligence, part if on such circumstances, you them, if find would constitute under above so ” defense whatever-in this action.’ [Italics court.] question presented Appeals The to the Court of was whether sole enough a instruction was broad to authorize verdict for negligence. on primary part That is also sole issue here. The gave controversy. rise the instruction italicized this When jury under the case submitted to humanitarian doctrine plaintiff’s recovery must be so worded as to exclude primary negligence. Ry. Co., based v. So. [Mayfield Kansas (2d) 116, 337 Mo. 85 S. W. c. 123 l. The instructions (6-10).] contributory for the inject negli defendant such case must not gence Russell, (2d) 33, as defense. v. [Reiling S. l. c. 38 (11), 517; Lynch Baldwin, (2d) 273, Mo. W. l. c. (5, plaintiff’s instructions, rule that 6).] submitting the case doctrine, under the humanitarian must not authorize a verdict on primary negligence just important as rule as the defend ant’s contributory instructions must not submit negligence primary defense. guide of instructions is to *4 reaching in just 511, a verdict. See 64 J. 460, C. sec. where it is said: ‘1The purpose office of or instructions is inform jury to the as to the of applicable law the case to the facts in such a manner jury that the may misled; not words, in to jury be other advise the toas what is law applicable the a they to certain of facts if should find the state existence of such facts from the evidence. general In more terms it been has laid down that of the aid jury is to the clearly comprehend to the case and reach a just conclusion, to right a ’’ decision, or, stated, as sometimes to arrive at a correct or fair verdict. Ry. In v. Chicago, Willhauck R. I. & Co., P. 1165, Mo. (2d) 336, (7, 8), l. c. 339 this court said: only “This was charge cause submitted on the of negligence under humanitarian contributory the rule. Plaintiff’s negligence no is defense a charge, to such and when other ground negligence no of case, submitted it not an in issue the and we frequently held injection that its under these by an circumstances instruction such as ’ ’ the confusing jury above is the prejudicially to erroneous. given The instruction in this case certainly was most eonfus- definitely a verdict require jury find, to before ing. not a It did or alleged stop failure to the car authorized, that the plaintiff was paragraph hypothesized in the second approach, as plaintiff warn alleged peril of instruction, reference to a time after had That, recovery very which a upon basis arose. of coarse is plaintiff Fleming rel. humanitarian doctrine. ex may be had tmder the [State 798, 800, l. c. Bland, 565, 15 S. W. v. Mo. 801.] by jury author may as instruction, written, have been understood negligence negligence. is, That izing plaintiff primary a verdict for failing give warning signal prior at or to the when in to time certainly in imminent in motion. Plaintiff was not was set danger during alighting after all of the walked south time she Not all time after the car was set in motion. the car. even of the The car could have within two feet. Plaintiff could been danger. In connection with step have taken one out of westward plaintiff’s evidence: instruction consider “Q. they they Now these street cars make a noise don’t when start up? morning.” A. He didn’t when make noise he started that paragraph'of
Note that the second authorized instruction negligently verdict if defendant “. . . an failed to sound car, the approach audible of said . .” The . Appeals agreement They were in Court of on the law. meaning conveyed by as to majority differed the instruction. The it, fault with enough found but did not deem it bad to require a dissenting reversal the case. The opinion pointed out its ambiguity. We think the instruction violated the in rule stated Mayfield Ry. Co., So. (2d) 116, Mo. 85 S. W. l. (6-10), c. 123 where this court said: prejudicial error,
“It in an instruction submitting humanitarian negligence, inject primary negligence to therein of the defendant or contributory negligence plaintiff; require to consideration of negligence antecedent plaintiff either or defendant which prior existed to the time the humanitarian properly doctrine operate; commenced to or predicate recovery upon any to different actually facts than those which existed at the peril time the arose and discovered, or, duty was if there keep lookout, was when it was by the required degree discoverable exercise of the of care.” may in this instance well have based its verdict on the failure give warning of the motorman at the time the street car motion, though was set even it believed negligent was *5 walking proximity such close danger to the tracks as to be in passing car. The instruction is therefore erro- neous. We opportunity desire take this a practice criticize which growing, is,
seems to be frequent the so use in of such phrases as, so,” you “if “if any.” so find” and “if The instruction phrases correctly, such repeats consideration, have counted if we
under necessary not twenty-seven frequent those terms Such use of times. be discontinued. only practice should and tends to confuse. Cooley and cause remanded. and the reversed Bohling, CC., concur. Westhues, C., adopt- foregoing opinion
PER CURIAM: The All concur. ed as of the court.
Harry A. Trower Company, Railroad Missouri-Kansas-Texas Corporation, Appellant. 792. One, April 18, 1941.
Division