Conroy v. St. Joseph Ry., Light, Heat & Power Co.

• Decision Date: 13 December 1939
• Docket Number: 35999
• Parties: Donald Conroy, by T. A. Conroy, His Next Friend, v. St. Joseph Railway, Light, Heat & Power Company, Appellant
• Court: Missouri Supreme Court

134 S.W.2d 93

345 Mo. 592

Donald Conroy, by T. A. Conroy, His Next Friend, v. St. Joseph Railway, Light, Heat & Power Company, Appellant

No. 35999

Supreme Court of Missouri

December 13, 1939

Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge.

Reversed and remanded (with directions to set aside the order granting a new trial, and reinstate the verdict in favor of appellant).

Mayer Conkling & Sprague for appellant.

(1) The operator of appellant's electric trolley coach was required to exercise only ordinary care. Secs. 7759, 7775, R S. 1929. (2) If part of defendant's Instruction C required the operator of defendant's coach to use the highest degree of care, the instruction was not erroneous except in that it was too favorable to plaintiff, and that gave plaintiff no right to complain. Potterfield v. Railroad Assn., 319 Mo. 631; Berry v. St. Louis, Memphis & S. E. Ry. Co., 214 Mo. 604; Ellis v. Met. St. Ry. Co., 234 Mo. 678; Jones v. C., B. & Q. Ry. Co., 125 S.W.2d 16. (3) Regardless of the degree of care the instruction required of the coach operator, it is not possible under the facts that plaintiff could be hurt by the instruction. (4) Defendant's peremptory instruction should have been given, and, therefore, it could make no difference to plaintiff what instructions were given. Stark v. Burger, 125 S.W.2d 872; Karr v. C., R. I. & P. Ry. Co., 341 Mo. 536; State ex rel. v. Bland, 313 Mo. 254; Sullivan v. G. & N. I. Ry. Co., 308 Mo. 76; Rollison v. Wabash, 252 Mo. 525; Burge v. Wabash, 244 Mo. 101; McGee v. Railroad Co., 214 Mo. 530; Schoenhard v. Dunham, 187 S.W. 273; Lewis v. Dunham, 181 Mo.App. 426; Underwood v. Railroad Co., 182 Mo.App. 273.

Culver, Phillip, Kaufmann & Smith for respondent.

(1) The trial court properly refused the demurrer because: (a) The answer admitted the allegations of the petition relating to the cause of action under the humanitarian rule. Harding v. Railroad Co., 248 Mo. 663; Dezell v. Fidelity & Cas. Co., 176 Mo. 279; Atterbury & Nichols v. Hopkins, 122 Mo.App. 175. (b) Even if there were no evidence to make a case under the humanitarian rule, the trial court properly refused the demurrer because the petition pleaded and the evidence made a case of primary negligence on which plaintiff was entitled to go to the jury if he so desired. (c) The evidence did make a case under the humanitarian rule. Conway v. Silver King Oil & Gas Co., 94 S.W.2d 942; Goldman v. Onerem, 123 S.W.2d 621. None of the cases cited by appellant is in point. That line of cases has been distinguished by this court in banc. State ex rel. Wells v. Dawes, 3 S.W.2d 731; Steger v. Meehan, 63 S.W.2d 110. (2) Plaintiff's petition and instructions, defendant's answer and Instruction D as well as a part of defendant's Instruction C showed that both sides tried the case on the theory that the highest degree of care was required. Having done so, it cannot now insist that only ordinary care was requisite. Toeneboehn v. Ry. Co., 317 Mo. 1099; Plennett v. McFall, 284 S.W. 850. (a) The error in the instruction was not harmless. (b) The error is presumed to be prejudicial. Lingenfelder v. Wainwright Brewing Co., 103 Mo. 578. (c) And where the trial court grants a new trial, even if the error is not sufficient to reserve the judgment, yet in support of it this court will presume that the trial court with its better knowledge of the trial and the effect the error may have had upon the result, acted accordingly in sustaining the motion. Bunyan v. Citizens Ry. Co., 127 Mo. 12; Hoepper v. Southern Hotel Co., 142 Mo. 378; Ittner v. Hughes, 133 Mo. 679; Stafford v. Ryan, 276 S.W. 636; Wolfson v. Cohen, 55 S.W.2d 677.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

Bradley, C.

Plaintiff, a minor, was injured in St. Joseph, Missouri, in a collision between an automobile in which he was riding as a guest, and a trolley coach of appellant. Suit, asking for $ 25,000, was filed against the appellant, and Sylvester Kirschner, operator of the trolley coach, and Edward Fanning, a minor, and driver of the automobile, and Leith Fanning, sister of Edward and owner of the automobile. At the close of the case, plaintiff dismissed as to Kirschner and Leith Fanning. The jury found for the appellant, railway company, and against Edward Fanning, assessing plaintiff's damages at $ 1000. Plaintiff filed motion for a new trial which was sustained as to the appellant on the alleged ground that the court erred in giving Instruction C on its behalf, and was sustained as to Fanning on the ground that the damages assessed were inadequate. The appellant and Fanning appealed, but Fanning did not perfect his appeal and the same was dismissed.

Appellant contends that Instruction C was not erroneous, and that its demurrer to the evidence, at the close of the case, should have been sustained. If plaintiff failed to make a case against appellant, then any error in Instruction C matters not. [Lappin v. Prebe et al., 345 Mo. 68, 131 S.W.2d 511, and cases there cited.]

Plaintiff alleged several grounds of primary negligence and negligence under the humanitarian doctrine, but submitted his cause, as to appellant, solely under the humanitarian doctrine. The collision occurred about 9:15 A. M., May 23, 1936, and near the east side of the intersection of Noyes Avenue, a north and south street, and Jules Street, an east and west street. The trolley coach, operated from a trolley wire, approached the point of collision from the west on Jules Street, and the automobile approached from the north on Noyes.

In view of our conclusion as to Instruction C, it is not necessary to detail the facts in order to determine whether plaintiff made a submissible case against appellant. The order sustaining the motion for a new trial, as to appellant, recites that it was sustained "on the ground that Instruction C given for the defendant, St. Joseph Railway, Light, Heat and Power Company, in one portion thereof, requires of the driver of the vehicle for said defendant, St. Joseph Railway, Light, Heat & Power Company, only the degree of care exercised by a reasonably prudent person, instead of requiring the degree of care which would be exercised by a very prudent person. And that said Instruction C insofar as it requires only such care on the part of the said driver as would be exercised by a reasonably prudent person is in conflict with the balance of said Instruction C and with Instruction D given for said defendant, St. Joseph Railway, Light, Heat and Power Company, and also with the instructions of the plaintiff, wherein the highest degree of care is required of the driver of said vehicle for the defendant, St. Joseph Railway, Light, Heat and Power Company" (Italics ours).

Instruction C follows: "The court instructs the jury that if you find and believe from the evidence that at the time the trolley coach mentioned in evidence entered the intersection of Noyes Boulevard and Jules Street, the Ford automobile in which plaintiff was riding was a sufficient distance north of said intersection as that said Ford automobile, by the exercise of the highest degree of care, could have been stopped or slowed down or driven along the west side of Noyes Boulevard, and the collision of the vehicles thereby avoided, and if you further find that there was nothing about the movement of the Ford automobile, or the manner in which it was being driven, or any conduct or action on the part of the occupants of the Ford automobile, to indicate to a reasonably prudent person operating a trolley coach that the occupants of the Ford automobile were helpless or oblivious of the presence and proximity of the trolley coach, or that the Ford automobile would not stop before entering the intersection, or would not pass behind the trolley coach, if you so find, then you are instructed that the operator of the trolley coach had the right to assume and believe that the Ford automobile would be stopped or slowed down or driven along the west side of Noyes Boulevard, and a collision thereby avoided, if you find that by stopping or slowing down or driving said Ford automobile along the west side of Noyes Boulevard, said collision could and would have been avoided, and you are further instructed that if you find and believe from the evidence that the trolley coach entered said intersection before the Ford automobile entered said intersection, and that said Ford automobile was a sufficient distance north of said intersection as that said Ford automobile, by the exercise of the highest degree of care, could have been stopped or slowed down or driven along the west side of Noyes Boulevard and the collision thereby avoided, the operator of the trolley coach had the right to enter and proceed across said intersection, and was under no duty to begin to stop the trolley coach until he saw, or, by the exercise of the highest degree of care, could have seen that the occupants of the Ford automobile were helpless, or oblivious to the danger of a collision, or that there was no intention to stop said Ford automobile before driving the same into a collision with the trolley coach" (Italics ours).

Plaintiff contends that the trolley coach was a motor vehicle within the meaning of Section 7775, Revised Statutes 1929 (Mo. Stat. Ann., sec. 7775, p. 5197), which provides, among other things, that "every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care . . ." Section 7759, Revised Statutes 1929 (Mo. Stat. Ann., sec. 7759, p. 5179), defines a motor vehicle as "any self-propelled vehicle not operated exclusively upon tracks, except farm tractors."

It is not necessary to rule, and we do not rule, as to whether the...