Opinion
Opinion delivered June 5, 1950.
1. — Motor Carriers — Automobiles. In action for injuries to plaintiff while transferring from defendant's street car to bus when caught between the rear bumper of backward moving bus and front bumper of bus parked about four feet behind it, evidence that at such transfer point passengers habitually passed in front of, behind and between busses, any way and every way, was admissible as bearing on question of defendant's negligence and of plaintiff's contributory negligence.
2. — Motor Carriers — Automobiles. Under evidence driver of motor bus held charged with knowledge that intersection at which bus stopped was a busy one, that busses habitually parked one behind the other, that people passed in front of, behind and between busses, during the busy hours in boarding and leaving them, and driver of such bus was required to exercise the highest degree of care while operating it on the streets and highways so as not to endanger any person.
3. — Motor Carriers — Automobiles. Plaintiff had the same right to use street as did defendant's bus and to cross street at place where there was no intersection where evidence showed many people habitually did so.
4. — Motor Carriers — Automobiles. In action for injuries received by plaintiff, a pedestrian, when his legs were pinned between bumper of backing bus and bumper of bus parked behind it, evidence justified submission of case to jury on question of whether bus driver was negligent in failing to prevent bus from rolling backward when motor died.
5. — Motor Carriers — Automobiles. Fact that driver of forward bus did not see plaintiff about to enter between his bus and another bus parked behind it and could not have seen plaintiff after he entered between the busses constituted no defense to action against defendant for damages for injuries received by pedestrian when forward bus rolled backward pinning his legs between the busses, since bus driver was charged with knowledge that pedestrians or automobiles might be in the backward path of bus at any time and that persons might be injured by rolling backward of bus.
6. — Motor Carriers — Automobiles — Negligence. Whether pedestrian in passing between busses parked on incline at street intersection was guilty of contributory negligence when injured by rolling backward of bus pinning him between busses, was a question for the jury.
7. — Motor Carriers — Automobiles. Plaintiff in passing behind bus parked at street intersection was not bound to anticipate that the bus would be negligently backed against him.
8. — Motor Carriers — Automobiles. Evidence that no warning was sounded when bus began its backward movement was admissible on issue of contributory negligence.
9. — Evidence. Hospital records of patient required to be made and kept by statute, if properly identified, are admissible in evidence, though statute requiring keeping of such records was subsequently repealed.
10. — Evidence — Res Gestae. Plaintiff's testimony that immediately after operator had stopped bus which struck him, operator told plaintiff that brakes did not hold was admissible as a part of the res gestate.
11. — Jury. General rule is that statutes regulating the method and manner of selecting jurors are directory and not mandatory.
12. — New Trial — Jury. New trial will not be granted after verdict merely because some irregularity occurred in the selection and impaneling of the jury, unless it is inferable from the circumstances that the losing party has been injured by a failure to strictly follow the provisions of the statute.
13. — Jury — New Trial. Where juror whose name was actually drawn for service in circuit court had moved and summons for jury service was thereafter mailed to another person of the same name at a different address who appeared and served on jury, he was not a qualified juror, though he was not guilty of any wilful or fraudulent misconduct, and failure to grant defendant's motion for a new trial on such ground was reversibly erroneous.
Appeal from Circuit Court of Jackson County. — Hon. Thomas R. Hunt, Judge.
REVERSED AND REMANDED.
Charles L. Carr, Alvin C. Trippe, Hale Houts, Hogsett, Trippe, Depping, Houts James, for appellant.
The court erred in overruling defendant's motion for a directed verdict at the close of all the evidence. There was no evidence of actionable negligence on the part of defendant. Karr v. Chicago, R.I. P. Ry Co., 341 Mo. 536, 108 S.W.2d 44, syl. 3-5; Johnson v. Kansas City Public Service Co., Mo. Sup., 214 S.W.2d 5, 10 (11); Authorities, III A. Plaintiff was also as a matter of law guilty of negligence precluding recovery. Danzo v. Humfeld, Mo. Sup., 180 S.W.2d 722, 725, 726 (3); Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 120, 123-5 (2); State ex rel. Schaffer v. Allen, Mo. Sup., 253 S.W. 768, 771-3 (2); Meyers v. C.R.I. P. Ry. Co., 103 Mo. App. 268, 77 S.W. 149, 151; Rogers v. Tegarden Packing Co., 185 Mo. App. 99, 170 S.W. 675, 676-7 (2); Smith v. Ozark Water Mills Co., 215 Mo. App. 129, 238 S.W. 573, 575-6, and cases cited (3); Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 625-7 (12 to 17); Schaffer v. Union Electric Light Power Co., Mo. App., 242 S.W. 536; Authorities, III A. The judgment should be reversed outright or with directions for judgment for defendant. Hunt v. Chicago, M. St. P. P.R. Co., Mo. Sup., 225 S.W.2d 738. The court erred in not granting a new trial on the ground that the George W. Baker who served on the jury was not drawn or selected as a juror as required by law. Doran v. Ross, Mo. App., 221 S.W.2d 756, 758 (3, 4) (by this Court); State v. Rouner, 333 Mo. 1236, 64 S.W.2d 916, 918-22 (2, 3), and cases cited; Massman v. Kansas City Public Service Co., Mo. Sup., 119 58 S.W.2d 833, 838; Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 697, and cases cited; Article IV of Chapter 5, Sections 749 to 765, R.S. 1939, as amended Laws of 1947, Vol. 1, p. 342 et seq., Mo. R.S.A., Sections 749 to 765; Section 720, R.S. 1939, as amended Laws of 1947, Vol. I, p. 342. It was error to admit evidence that persons customarily crossed to the west side of Grand Avenue and walked between busses standing on the west side of the street at points south of the pedestrian lane of 8th Street on the north side of 8th Street. Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 462, 464; Danzo v. Humfeld, Mo. Sup., 180 S.W.2d 722, 725-6 (2-6); Maher v. Donk Bros. Coal Coke Co., 323 Mo. 799, 20 S.W.2d 888, 895 (16); Hoyt v. Stockyards Co., Mo. Sup., 188 S.W. 106, 108; Kelley v. The Parker-Washington Co., 107 Mo. App. 490, 495, 81 S.W. 631; Anderson v. Dail, 229 Mo. App. 272, 77 S.W.2d 169, 170 (1-3); Syme-Eagle Co. v. Joplin Grocer Co., 206 Mo. App. 357, 229 S.W. 246, syl. 2; Authorities, I B. It was error to admit testimony by plaintiff that no warning was sounded from the bus. Chitty v. Iron Mountain Ry. Co., 148 Mo. 64, 75, 49 S.W. 868; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, 685-6; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487, 488. It was error to admit in evidence the Research Hospital records. Vital Statistics Act, Laws of 1947, Vol. II, p. 237, Section 1; Kirkpatrick v. Wells, 319 Mo. 1040, 6 S.W.2d 591, 593; Borrson v. Missouri-Kansas-Texas R. Co., 351 Mo. 214, 172 S.W.2d 826, 833. It was error to admit the testimony of an alleged statement by the operator of the bus after the accident. Redmon v. R.R., 185 Mo. 1, 11-13; Landau v. Travelers Ins. Co., 305 Mo. 563, 267 S.W. 376; Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, 781-783, and cases cited; Woods v. Southern Ry. Co., Mo. Sup., 73 S.W.2d 374, 376-377; Cramer v. Parker (this Court), 100 S.W.2d 640, 642-643; Smith v. East St. Louis Ry. Co., 234 Mo. App. 1220, 123 S.W.2d 198, 206-207. The court erred in giving plaintiff's Instruction 1. The instruction erroneously predicated a duty on part of the defendant toward persons going between busses upon a finding that for a period of months "some of the persons" meaning or intending to board such busses passed between standing busses. Baker v. J.W. McMurray Contracting Co., 282 Mo. 685, 223 S.W. 45, 50; Shane v. Lowden, 232 Mo. App. 360, 106 S.W.2d 956, 962. The instruction also erroneously advised the jury that as a matter of law defendant owed a duty to exercise the highest degree of care towards people going between busses, if within defendant's knowledge "some persons" had gone between busses in previous months. Hicks v. De Luxe Cab Co., Mo. App., 189 S.W.2d 152, 156; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135, 139. The instruction erroneously gave the jury a roving commission to find that defendant negligently caused or allowed the bus to go backward and to return a verdict for plaintiff upon any theory it might devise and without submitting facts that would support such a conclusion. Yates v. Manchester, Mo. Sup., 217 S.W.2d 541, 542-6, and cases cited; Burgher v. Niedorp, Mo. App., 50 S.W.2d 174, affirmed State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422, 423; Hicks v. De Luxe Cab Co., Mo. App., 189 S.W.2d 152, 155, 156.
Trusty, Pugh Green, Guy W. Green, Arvid Owsley and James L. Williams for respondent.
The court properly overruled defendant's motion for directed verdict at the close of all the evidence. Defendant's operator was shown to be negligent as a matter of law in causing or permitting his bus to go backwards without warning when he had reason to anticipate the presence of persons in the public street and could not see to the rear. Hardin v. Illinois Cent. R. Co., 334 Mo. 1169, 70 S.W.2d 1075; Story v. People's Motorbus Co., 327 Mo. 719, 37 S.W.2d 898, 900; Neely v. Freeze, (Mo. App.) 225 S.W.2d 144, 153. Section 8387 (d), Mo. R.S.A.; Section 11-63, Traffic Code of Kansas City, Missouri; Section 11-59, Traffic Code of Kansas City, Missouri; Section 8383, Mo. R.S.A.; Gude v. Weick Bros. Undertaking Co., 322 Mo. 778, 16 S.W.2d 59, 60; Hart v. Weber, (Mo.) 53 S.W.2d 914, 915; Steger v. Meehan, (Mo.) 63 S.W.2d 109, 110; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21, 23; Rohmann v. City, (St. L. App.) 135 S.W. 378, 383; Weis v. Melvin, (Mo.) 219 S.W.2d 310; Wilkins v. Stuecken, (Mo.) 225 S.W.2d 131; Meenach v. Crawford, (Mo.) 187 S.W. 879, 883, 884; Ostermeier v. Kingman-St. Louis Implement Co., 255 Mo. 128, 164 S.W. 218, 219; Miller v. Williams, (Mo.) 76 S.W.2d 355, 356; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463, 466; Richards v. Gardner et al., (St. L. App.) 193 S.W.2d 354, 356; Hicks v. De Luxe Cab Co., Inc., (St. L. App.) 189 S.W.2d 152; Shamp v. Lambert, 142 Mo. App. 567, 121 S.W. 770; Brickell v. Williams, 180 Mo. App. 572, 167 S.W. 607; Lauff v. Kennard Sons Carpet Co., 186 Mo. App. 123, 171 S.W. 986; Suddarth v. Kirkland Daley Motor Co., (K.C. App.) 220 S.W. 699; Kilcoyne v. Metz, (St. L. App.) 258 S.W. 4; Herrin v. Stroh Bros. Delivery Co., (St. L. App.) 263 S.W. 871; 60 C.J.S. 712, Sec. 302. The issue of contributory negligence was a clear question for the jury. Shamp v. Lambert, 142 Mo. App. 567, 121 S.W. 770, 772; Hicks v. De Luxe Cab Co., Inc., (St. L. App.) 189 S.W.2d 152; Ostermeier v. Kingman-St. Louis Implement Co., 255 Mo. 128, 164 S.W. 218, 220; Meenach v. Crawford, (Mo.) 187 S.W. 879, 883; Suddarth v. Kirkland Daley Motor Co., (K.C. App.) 220 S.W. 699, 700; Kilcoyne v. Metz, (St. L. App.) 258 S.W. 4, 6; Herrin v. Stroh Bros. Delivery Co., (St. L. App.) 263 S.W. 871, 875-6; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463, 466; Richards v. Gardner et al., (St. L. App.) 193 S.W.2d 354, 356; Dempsey v. Horton, 337 Mo. 379, 84 S.W. 621. Evidence that persons customarily walked behind and between busses standing at the point in question was competent on the issue of both negligence and contributory negligence. McPherson v. Premier Service Co., (St. L. App.) 38 S.W.2d 277, 278; White v. Hasburgh, (Mo. App.) 124 S.W.2d 560, 564, 565; Foster v. K.C. Rys. Co., (Mo.) 235 S.W.2d 1070; Biener v. St. Louis Public Service Co., (St. L. App.) 160 S.W.2d 780, 783; Supreme Court Rule No. 3.23. It was not error to show that other persons walked between the busses ahead of plaintiff. Biener v. St. L.P.S. Co., (St. L. App.) 160 S.W.2d 780, 783; Supreme Court Rule No. 3.23. The court properly permitted the plaintiff to testify that no warning was sounded by the bus. Biener v. St. L.P.S. Co., (St. L. App.) 160 S.W.2d 780, 783. The records of Research Hospital were properly admitted in evidence because they were required to be kept by law at the time they were made. Borrson v. M.K.T.R. Co., (Mo.) 172 S.W.2d 826, 833; Section 9777, R.S. Mo., 1939; Vital Statistics Act, Laws of 1947, Vol. II, p. 237, Section 1; Section 658, Mo. R.S.A.; Section 660, Mo. R.S.A. The court did not err in admitting testimony of an alleged statement by the operator of the bus immediately after the accident. Such statement was admissible as part of the res gestae. Landau v. Travelers' Ins. Co., (App.) 30 S.W.2d 794, 796; Scism v. Alexander, 93 S.W.2d 36, 40 (App.); Legger v. Great Northern Life Ins. Co., (St. L. App.) 216 S.W.2d 106, 109; Smith v. Producers Cold Storage Co., 128 S.W.2d 299, 306 (App.); Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777; Billingsley v. Kansas City Public Service Co., (App.) 191 S.W.2d 331, 334; State ex rel. Smith v. Trimble et al., (Mo.) 285 S.W. 729, 732; Lynch v. Missouri, K. T.R. Co., (Mo.) 61 S.W.2d 918, 922; Brinkley v. United Biscuit Co., 349 Mo. 1227, 164 S.W.2d 325; Cramer v. Parker, (Mo. App.) 100 S.W.2d 640; Redmon v. Met. St. Ry. Co., 185 Mo. 1, 84 S.W. 26, 29. The statement of the operator was competent because it was made while in the performance of his duties for his employer. Murray v. De Luxe Motor Stages, (Mo. App.) 133 S.W.2d 1074, 1077; Downing v. St. Louis-San Francisco R. Co., 220 Mo. App. 260, 285 S.W. 791, 792; Chicago, St. P., M. O. Ry. Co. v. Kulp, (C.C.A. 8) 102 F.2d 352, 356; Lemen v. K.C.S. Ry. Co., 151 Mo. App. 511, 132 S.W. 13. The statement of the operator was admissible as evidence of knowledge of a condition by an agent whose knowledge is of importance. Fisher v. Pullman Co., 212 Mo. App. 280, 254 S.W. 114, 115; Wainwright v. Westborough Country Club, (Mo. App.) 45 S.W.2d 86, 91; Pulsifer v. City of Albany, 226 Mo. App. 529, 47 S.W.2d 233, 238; Garnett v. S.S. Kresge Co., (Mo. App.) 85 S.W.2d 157, 159; State ex rel. S.S. Kresge Co. v. Shain, (Mo.) 101 S.W.2d 14, 17. Plaintiff's instruction No. 1 was a proper submission of the case. The defendant was required as a matter of law to exercise the highest degree of care on a public highway and a finding that persons passed between the busses was unnecessary and placed an additional burden on plaintiff, of which defendant can't complain. Lauff v. Kennard Sons Carpet Co., 186 Mo. App. 123, 171 S.W. 986; State ex rel. Brosnahan v. Shain, 344 Mo. 404, 126 S.W.2d 1193; Givens v. Spalding Cloak Co., 228 Mo. App. 169, 63 S.W.2d 819, 828; McIntyre v. St. Louis-San Francisco Ry. Co., 286 Mo. 234, 227 S.W. 1047, 1052; Moyer v. C. A.R. Co., (Mo. en Banc) 198 S.W. 839, 842; Turnbow v. K.C. Rys. Co., 277 Mo. 644, 211 S.W. 41, 45, 46; Sanguinett v. May Department Stores, 228 Mo. App. 1161, 65 S.W.2d 162, 166, 167; Section 8383, Mo. R.S.A. If plaintiff's Instruction No. 1 erroneously submitted the issue of negligence, the defendant cannot complain thereof because he joined in the theory of its submission. State ex rel. Reeves v. Shain, 122 S.W.2d 885, 887 (Mo. en Banc); Mulanix v. Reeves, 112 S.W.2d 100; Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W.2d 767, 769; Morris v. Union Depot Bridge Terminal R. Co., (Mo. en Banc) 8 S.W.2d 11, l.c. 14; Robinson v. M.K.T. Ry. Co., (Mo. App.) 123 S.W.2d 624, 627; Snelling v. Triplett, (Mo. App.) 171 S.W.2d 739, 741. Plaintiff's Instruction No. 1 was a proper submission of specific negligence. State ex rel Spears v. McCullen, (Mo. en Banc) 210 S.W.2d 68, 70; Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, 916; State ex rel. K.C. Rys. Co. v. Trimble, (Mo.) 260 S.W. 746; Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 585, 592, 593; Thompson v. Keyes-Marshall Bros. Livery Co., 214 Mo. 587, 113 S.W. 1128, 1130; Beier v. St. Louis Transit Co., 197 Mo. 215, 94 S.W. 876; Morris v. Union Depot Co., (Mo. en Banc) 8 S.W.2d 11, 14; Hicks v. De Luxe Cab Co., (Mo. App.) 189 S.W.2d 152; Yates v. Manchester, (Mo.) 217 S.W.2d 541; Burgher v. Niedorp, (Mo. App.) 50 S.W.2d 174. The court did not err in refusing to grant a new trial on the ground that George W. Baker was not drawn as a juror as required by law. Defendant does not sustain the burden of proving that his serving was error materially affecting the merits of the action. Section 697, Mo. R.S.A.; Section 847.123, Mo. R.S.A.; State ex rel v. Allen, (Mo.) 78 S.W.2d 862, 865; Stark v. St. Louis Public Service Co., (Mo. App.) 211 S.W.2d 500, 505; Kidd v. C., R.I. P. Ry. Co., (Mo.) 274 S.W. 1079, 1094; State v. Pine, (Mo.) 57 S.W.2d 1087, 1089; Davis v. Kansas City Public Service Co., 223 S.W. 1, 5, 6; State v. Reilly, 4 Mo. App. 392; Vierling v. Stefel Brewing Co., 15 Mo. App. 125; Crosby v. Evans et al., (Mo.) 219 S.W. 948, 953. The granting of a new trial on said ground was within the discretion of the trial court and such discretion was not abused. Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695; Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47, 51; O'Brien v. Vandalia Bus Lines, (Mo.) 173 S.W.2d 70, 77; Hart v. Kansas City Public Service Co., (Mo. App.) 142 S.W.2d 348, 355. Statutes relating to jurors are directory and not mandatory. Mistake or informality in selecting a jury is no ground for new trial. State v. Breen, 59 Mo. 413; State v. Knight, 312 Mo. 411, 278 S.W. 1036, 1038; State v. Pitt, 58 Mo. 556, 557; State v. Riddle, 179 Mo. 287, 78 S.W. 606, 607; State v. Hart, 56 S.W.2d 592, 594; State v. Pine, (Mo.) 57 S.W.2d 1087, 1089. Juror Baker was drawn and summoned in accordance with the law. Sections 749-765, Article IV, Chapter V, Mo. R.S.A.
Plaintiff sued for damages growing out of personal injuries received when one of defendant's busses moved backward, pinning plaintiff's legs between the rear bumper of that bus and the front bumper of a bus parked about four feet behind it. The case was tried to a jury and plaintiff had a judgment in the sum of $7458, from which defendant appealed.
The accident occurred at the northwest corner of the intersection of 8th and Grand, in Kansas City. Directly east, across Grand Avenue, is a Katz store, in front of which defendant's street cars, from the south and east part of the city, take on and discharge passengers. This corner is a transfer point for passengers from street cars to busses or vice versa.
People who are employed in the industrial and business districts in the north and west part of the city, leave the street cars and walk across the street to get on the busses. The accident occurred at about 7 a.m., April 2, 1946. The evidence was to the effect that the street car and bus traffic, including transfers, was extremely heavy at this corner, at that time of the day. Frequently there are two or more busses parked, one behind the other. Plaintiff stated that he had seen as many as four busses parked, one behind the other. Both of defendant's drivers, as well as others, testified regarding the heavy traffic. Plaintiff stated that, on the morning in question, he arrived in front of the Katz store at about 7 a.m., on one of defendant's street cars. He took a transfer and walked across the street, to the northwest corner, to board a bus. He followed the regular "walkway" for pedestrians. One bus was parked, with the front end near the corner, and another about four feet behind it. Both were taking on passengers and, when he arrived at a point even with the front end of the south bus, the driver closed the door and prepared to move out. Plaintiff, instead of continuing westward along the "walkway", across the front of the bus, turned and walked northward along its east side. When he reached the rear of the bus he turned westward, intending to pass between the two busses. He stated that, when he entered this opening, the bus was not yet in motion; that after he entered the passageway the south bus started forward, then came back to the north, catching and pinning his legs as aforesaid; that it then started and moved forward again, releasing him, and stopped; that the bus driver got out of the bus, came back to plaintiff, who was on the sidewalk, and told him that the brakes did not hold. Plaintiff also testified to the effect that many people passed behind and between busses parked at this point; that three people preceded him through this passage on this occasion.
Mr. Scott, testifying for plaintiff, stated that he had operated a garage near this intersection and observed people leaving the busses on the west side of the street and the street cars on the east side; that large numbers, when traffic was heavy, crossed the street in both directions, at all angles; that they habitually passed in front of, behind and between the busses, any way and every way. Defendant objected to this testimony as irrelevant and on the grounds that no such custom was pleaded. The objection was overruled. It was admissible as bearing on the question of defendant's negligence, and of plaintiff's contributory negligence. Shamp v. Lambert, 142 Mo. App. 567; 121 S.W. 770, 772. The evidence was relevant. Jones Commentaries on Evidence, Section 587; and admissible, McPherson v. Premier Service Company, 38 S.W.2d 277, 278; White v. Hasburgh, 124, S.W.2d 560, 564.
The driver of the offending bus testified to the effect that he knew that the traffic was heavy at this corner; that he knew that large numbers of pedestrians crossed the street, in transferring from defendant's street cars to its busses, but that he paid no attention to them or where or how they walked; that he knew that, frequently, two busses were parked, one behind the other, as they were parked on this occasion; that he had a very heavy load, thirty people in the seats and with from twenty to thirty passengers standing; that because of the passengers standing he was unable to see through the rear view mirror, and could not see either plaintiff or the second bus; but he admitted that he stated in his deposition that he did see the rear bus, through the mirror, after someone yelled about the accident.
He stated that, after the bus was loaded, he took his foot off the brake and placed it on the gas pedal; that when the motor accelerated and the gears engaged (the gears were disengaged while the motor was idling) he fully released the hand brake, shoving it forward the full distance permitted, about two feet; that the bus moved forward about a foot; that the motor died and it rolled back to the north; that he immediately stopped it with the foot and hand brake, started the motor, and pulled forward; that he did not know of plaintiff's predicament until, after the bus had rolled backward, he heard a shout; that after learning of the accident he stopped the bus, went to plaintiff, and gave him his name and number; that he did not tell plaintiff that the brake failed. He stated that the bus rolled backward, when the motor died, because of the heavy load and the grade; that the motors on such busses would die on occasion, but not frequently, when heavily loaded or on a grade; that he could have kept the bus from rolling backward had he not completely released the hand brake, but kept it in contact as he started and pulled forward; that he knew that a bus would roll backward when heavily loaded, on a grade, if the motor should die.
Mr. Miller, defendant's driver on the second bus, stated that he did not see plaintiff until after the bus had pinned him between the bumpers; that he had parked his bus about four feet behind the front bus; that pedestrian traffic was heavy at this corner; that busses were frequently parked there, one behind the other; and that he had seen pedestrians pass between parked busses, but that he did not see any pass between the busses on the morning of the accident.
Plaintiff pleaded, as grounds for recovery, that the bus "was negligently caused, allowed, or permitted to back up." Defendant denied any negligence on its part and pleaded that plaintiff was guilty of contributory negligence.
Defendant's first point is that its motion for directed verdict should have been given because it owed plaintiff no duty and was not negligent as to him. Defendant's agent was charged with knowledge that this intersection was a busy one; that busses habitually parked, one behind the other; that people passed in front of, behind, and between busses during the busy hours, in boarding and leaving them. He was required to exercise the highest degree of care in the operation of a motor vehicle on the streets and highways, so as not to endanger any person. Pitcher v. Schoch, 139 S.W.2d 463, 466. Plaintiff had the same right to use the street as did defendant's bus, and to be where he was when struck. Meenach v. Crawford, 187 S.W. 879, 882; Pitcher v. Schoch, supra. Defendant's driver admitted, on cross examination, that he could have prevented the bus from rolling backward had he controlled its movement in this respect by retaining contact with the hand brake. The jury could have found that to be a fact; and it could have found negligence in his failure to so act. The fact that the driver did not, in fact, see plaintiff entering between the busses, or could not have seen him after he entered, constitutes no defense. He is charged with knowledge that pedestrians, or automobiles, might be in the backward path of the bus at any time, and that persons might thereby be injured.
Defendant also contends that a verdict for it should have been directed because plaintiff was guilty of contributory negligence as a matter of law in having entered between the busses while standing, as they were, on a rather steep incline. Defendant concedes that a pedestrian is not negligent, as a matter of law, merely because he attempts to cross a street at a place where there is no intersection. However, plaintiff's act in this respect certainly gives reason for consideration of the question of contributory negligence by the jury. Pitcher v. Schoch, supra, 466. However, it is urged that the question should have been decided by the court, as one of law, rather than by the jury, as one of fact. Reasonable minds might well differ as to whether or not plaintiff conducted himself as a reasonable prudent person would have done under the same or similar circumstances. Others passed behind and between busses at this intersection. The south bus was preparing to move forward when plaintiff reached a point in front of it, or near its front. Whether it would have been better judgment on plaintiff's part to have gone in front of a bus that was prepared to go forward, or to stand in the street until it moved across his front and cleared the pedestrian walkway, or to walk northward beside the bus and go behind it, is a question for the jury; and in passing behind the bus he was not bound to anticipate that the bus would be negligently backed against him. Ostermeirer v. Implement Company, 255 Mo. 128, 136.
Defendant complains of the admission of evidence to the effect that no warning was sounded when, or before, the bus began its backward movement. One of the issues joined by the pleadings was that of plaintiff's contributory negligence. The evidence was admissible on that issue. Evidence of the sounding of a warning, or of a failure to do so, under plaintiff's charge of "causing" the bus to move backward, was also material, and admissible. "Whatever testimony was offered, which would assist in knowing which party spoke the truth of the issue, was relevant; and when to admit it did not override other formal rules of evidence it ought to have been taken." Jones Commentaries on Evidence, supra; Ismert-Hincke Mliling Company v. Mercurio Brothers, 243 S.W. 408, 410.
Error is charged because of the admission, over objection, of certain hospital records. Plaintiff was confined in Research Hospital in April and May, 1946. At that time Section 9777 Mo. R.S.A. (Mo. R.S. 1939), was then in full force and effect, (although since repealed) and required records of patients to be kept. Such records were admissible in evidence because the statute required them to be made and kept. Allen v. American Life Accident Insurance Company, 119 S.W.2d 450, 453. Under the general rules of evidence such records are admissible if properly identified. Kirkpatrick v. Wells, 319 Mo. 1040, 1045. Their admissibility in evidence does not depend on a statute so providing but upon the fact that they are kept pursuant to a statute requiring them to be kept. Priddy v. Baine, 201 Mo. 309, 334, 335. The trial court ruled properly on this point.
It is contended that error was committed in the admission of testimony to the effect that defendant's operator told plaintiff that the brakes did not hold. Plaintiff testified to the effect that the operator made such statement to him when he came to where plaintiff was leaning against a trash can, immediately after the operator had stopped the bus following the accident. Defendant's operator stated that he stopped the bus immediately after he heard a shout which led him to believe that some one was injured; that he immediately got out of the bus and went to plaintiff; that he gave him his name and number, but denied making the above statement. If the statement was made, as plaintiff stated, (and it was for the jury to determine that matter) the testimony was admissible as a part of the res gestae. Billingsley v. Kansas City Public Service Company, 191 S.W.2d 331, 334; Brinkley v. United Biscuits Company of America, 349 Mo. 1227, 164 S.W.2d 325, 330; Smith v. Producers Cold Storage Company, 128 S.W.2d 299, 306.
Defendant urges error in the overruling of its motion for a new trial based on the fact that a juror, who had not been selected for service, was permitted to serve on the jury that tried the case.
The juror whose name was actually drawn for service was a white man, named George W. Baker, who lived at 212 Westport Road. Said juror had moved from that address and the sheriff's office returned the summons to the jury commissioner, who mailed it to George W. Baker, a colored man, who lived at 1620 West 9th Street. This man appeared and served on the jury.
A unanimous verdict was returned and, thereafter, defendant learned of the above occurrence. It moved for a new trial and urged this as one of the grounds for its motion. A hearing was had on this feature of the motion and the matter was gone into fully. Witnesses were produced by both parties and, after being fully advised, the trial judge found: "* * * that juror George W. Baker was not guilty of any wilful and fraudulent misconduct and did not use dishonest means for the purpose of getting on the jury and the defendant was not prejudiced by reason of the services of said juror."
It has been declared that the general rule as to statutes regulating the method and manner of selecting jurors, is that such statutes are directory and not mandatory and that, unless it is inferable, from the circumstances of a particular case, that the losing party has been injured by a failure to strictly follow the provisions of the statute a new trial will not be granted after verdict, merely because some irregularity occurred in the selection and impaneling of the jury. State v. Breen, 59 Mo. 413, 417; State v. Knight, 312 Mo. 400, 278 S.W. 1036, 1038; State v. Pine, 57 S.W.2d 1087, 1089.
In Lee v. Baltimore Hotel Company, 345 Mo. 458, 136 S.W.2d 695, a man intentionally substituted himself on the panel in the place of a regularly selected and summoned juror who bore an entirely different name. He was qualified as a juror by the jury commission of Jackson County and his name was in, but was not drawn from, the jury wheel. He was not summoned as a juror. The trial court granted a new trial, of his own motion. It was held that the court did not act arbitrarily because the conduct of the juror constituted a fraud and imposition on the court and the parties, as a matter of law. The court laid great stress on the right of litigants to a trial by an impartial jury, and said that a man who uses dishonest means to get on a jury does not do so for the purpose of honestly deciding a case; and it sustained the action of the trial court in granting a new trial.
In Piehler v. Kansas City Public Service Company, 211 S.W.2d 459, 464, a juror intentionally concealed the fact that he had previously had a claim against defendant. It was held that since there was a dispute as to liability defendant was entitled to a jury consisting, exclusively, of qualified impartial men, and reversed and remanded the case because of the refusal of the trial court to grant a new trial.
In the case at bar, the trial court heard evidence regarding the circumstances here involved, and found that no one was guilty of any intentional wrongdoing in connection therewith. Therefore, the main point upon which the foregoing decisions rest does not here appear.
However, in Doran v. Boss, 221 S.W.2d 756, 758, we held that Section 757, Laws Missouri, 1947, page 346 was mandatory; that its provisions had clearly been violated; and that the trial court had acted properly in awarding a new trial on that ground. Sections 749 to 765, inclusive, Laws Missouri, 1947, pages 342, 350, prescribe a complete code for the selection of jurors in Jackson County. Section 760 thereof provides that no person not drawn or selected according to the provisions of that code shall be permitted to serve as a juror.
In view of the positive language of the statute we are constrained to hold that Mr. Baker was not a qualified juror and was, therefore, an interloper. Defendant was entitled to a decision "* * * based on the honest deliberations of twelve qualified men." Lee v. Baltimore Hotel Company, supra, 698; Piehler v. Kansas City Public Service Company, supra, 463. Failure to grant defendant's motion for a new trial on this ground was reversibly erroneous.
In view of this disposition of the case, it is not necessary to pass on the correctness of the instructions.
The judgment should be reversed and the cause remanded. Bour, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded. Dew, P.J., Broaddus, J., concur; Cave, J., not participating.