155 S.W.2d 126 (Mo. 1941), 37406, Seago v. New York Cent. R. Co.

Docket Nº:37406
Citation:155 S.W.2d 126, 348 Mo. 761
Opinion Judge:BRADLEY
Party Name:Alice Seago, Administratrix of the Estate of William E. Seago, Appellant, v. The New York Central Railroad Company
Attorney:Mark D. Eagleton and Wm. H. Allen for appellant. Wilton D. Chapman for respondent.
Judge Panel:Bradley, C. Hyde and Dalton, CC., concur.
Case Date:June 12, 1941
Court:Supreme Court of Missouri
 
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Page 126

155 S.W.2d 126 (Mo. 1941)

348 Mo. 761

Alice Seago, Administratrix of the Estate of William E. Seago, Appellant,

v.

The New York Central Railroad Company

No. 37406

Supreme Court of Missouri

June 12, 1941

          Rehearing Denied July 25, 1941. Motion to Transfer to Banc Overruled October 30, 1941.

         Appeal from Circuit Court of City of St. Louis; Hon. Frank C. O'Malley, Judge.

          Affirmed.

         Mark D. Eagleton and Wm. H. Allen for appellant.

         I. The trial court committed error prejudicial to the plaintiff, this appellant, in giving and reading to the jury Instruction No. 4, at the instance and request of the defendant, whereby the court instructed the jury "that unless plaintiff has proved to your satisfaction by a preponderance or greater weight of the evidence that defendant did not give a proper hand lantern signal before said engine was started, then plaintiff cannot recover in this case and your verdict must be for the defendant;" the words "to your satisfaction" being inserted in blue pencil, with the word "satisfaction" in capital letters. (1) The giving of said Instruction No. 4 was error prejudicial to plaintiff for the reason that an instruction that requires the party having the burden of proof to prove the facts necessary to a verdict in his favor "to the satisfaction" of the jury, or that requires the jury to be "satisfied" of the proof of such facts, exacts a higher degree of proof than the law requires. The effect thereof is to require proof beyond a doubt, or, at least, beyond a reasonable doubt. This is error in civil cases. Krause v. Spurgeon, 256 S.W. 1072; Stolovey v. Fleming, 328 Mo. 623; Nelson v. Evans, 338 Mo. 991; Heacock v. Baule, 216 Iowa 311, 249 N.W. 437; 93 A. L. R. 151, Annotation 155, 161; Tregoning v. Tregoning, 262 Ill.App. 489; Endowment Rank K. of P. v. Steele, 107 Tenn. 8, 63 S.W. 1127; Hyndshaw v. Mills, 108 Neb. 250, 187 N.W. 780; Nabers v. Long, 207 Ala. 270, 92 So. 444; Bierly v. Shelby Iron Co., 208 Ala. 25, 93 So. 829; D'Antoni v. Teche Lines, 163 Miss. 668, 143 So. 415; Baines v. Ullman, 71 Tex. 529, 9 S.W. 543; Detroit & I. Ry. Co. v. Wahl, 160 N.E. 638; Brewer v. Doose, 146 S.W. 323; Finks v. Cox, 30 S.W. 512; Texas Indemnity Co. v. Holloway, 30 S.W.2d 291; United Dentists v. Commonwealth, 173 S.E. 508; Henderson v. Page, 78 S.W.2d 293; Hoffman v. Loud, 111 Mich. 156, 69 N.E. 231; Washington v. State, 124 Ga. 423, 52 S.E. 910; Rosenbaum Bros. v. Levitt, 109 Iowa 292, 80 N.W. 923; Cleveland, C., C. & St. L. Ry. Co. v. Best, 169 Ill. 301, 48 N.E. 684; Western Cottage Piano & Organ Co. v. Anderson, 101 S.W. 1061; Harig v. McCutcheon, 23 Ohio App. 100, 155 N.E. 701; Karona Jewelry & Music House v. Loveland, 25 Ohio App. 116; Myerl v. Gutzeit, 50 Ohio App. 83; Midland Valley Ry. Co. v. Barnes, 162 Okla. 44, 18 P.2d 1089. (a) The verb to satisfy, when used in a connection such as this, means "to free from doubt, suspense or uncertainty." Proof to the satisfaction of the jury means that proof that is "satisfactory." And the dictionary definition of "satisfactory" is, "giving or producing satisfaction; especially relieving the mind from doubt or uncertainty." Webster's International Dictionary. (b) It is well settled that an instruction in a negligence case that requires the plaintiff to prove his case beyond a reasoable doubt, or the effect of which is to inform the jury that, if they are in doubt as to the charge of negligence the verdict must be for the defendant, is prejudicially erroneous. Haley v. Terminal Railroad Assn., 336 Mo. 340; Grimes v. Red Line Service, 227 Mo. 743; Rochene v. Gamble Const. Co., 338 Mo. 123; Nelson v. Evans, 338 Mo. 991; Morris v. Du Pont de Nemours & Co., 341 Mo. 821. (2) Said Instruction No. 4 was also erroneous in failing to refer the jury to the credible evidence. Plaintiff was required to prove her case only by a preponderance of the credible evidence, and the jury should have been explicitly so told. But this instruction gave the jury a roving commission to weigh all of the evidence, regardless of its credibility. And under the particular circumstances of this case this error was prejudicial. Nelson v. Evans, 338 Mo. 991. An instruction that directs a verdict without so hypothesizing the facts as to be free from ambiguity, and on that account is confusing, is necessarily prejudicially erroneous. McCarthy v. Sheridan, 336 Mo. 1201; Dunn v. Dunaker, 87 Mo. 597. II. The trial court committed error prejudicial to the plaintiff, this appellant, in giving and reading to the jury Instruction No. 6 at the instance and request of the defendant, whereby the court told the jury that if they found and believed from the evidence that Seago came to his death "not as the result of any negligence on the part of the defendant, as that term is used in these instructions, but as the sole direct and proximate result of his own act in stepping on or riding on the footboard of the tank of the engine," if they found and believed from the evidence "he did so, or attempted to do so," then to return a verdict for defendant. (1) The giving of said Instruction No. 6 was error prejudicial to plaintiff for the reason, for one thing, that there was no evidence whatsoever to warrant a finding by the jury that Seago's fatal injury was due solely to "his own act in stepping on or riding on the footboard," independent of and not concurring with the alleged negligence of the defendant which was submitted to the jury. Instructions must always be kept within both the pleadings and the evidence. Gould v. Chicago, B. & Q. Ry. Co., 315 Mo. 713; Althage v. Peoples Motor Bus Co., 8 S.W.2d 924; Miller v. Williams, 76 S.W.2d 355; Rettlia v. Salamon, 308 Mo. 673; Bright v. Wheelock, 323 Mo. 840; State ex rel. Goessling v. Daues, 314 Mo. 282. (a) In an action under the Federal Employers' Liability Act, the defendant carrier is liable if the injury of the employee results "in whole or in part" from its negligence or that of other of its employees; if any negligence attributable to it contributes in any degree to cause the injury. The defendant carrier is free from liability under the act only when no negligence on its part enters into or forms any part of the causation. And contributory negligence on the part of the employee constitutes no bar to the action. Federal Employers' Liability Act, 45 U.S.C. A. 51; Grand Trunk Western Ry. Co. v. Lindsay, 233 U.S. 42, 58 L.Ed. 838; Illinois Central Ry. Co. v. Skaggs, 240 U.S. 66, 60 L.Ed. 528; Wilson v. C., B. & Q. Ry. Co., 296 S.W. 1017; Mech v. Terminal Railroad Assn., 322 Mo. 945, 951, 18 S.W.2d 510; Auchenbach v. Philadelphia & Reading Ry. Co., 8 F.2d 350; Southern Ry. Co. v. Mays, 239 F. 41. (2) Said Instruction No. 6 invited the jury into the field of speculation and conjecture. There was plainly no evidence to warrant a finding that Seago came to his death solely by reason of any act on his part; yet by this instruction the jury was permitted to speculate, conjecture, surmise or guess that he may have come to his death solely by reason of stepping on or riding on the footboard, or by attempting so to do. To authorize the jury to base its verdict upon pure speculation and conjecture was prejudicial, reversible error. Larey v. M.-K.-T. Ry. Co., 333 Mo. 949; Putnam v. Unionville Granite Works, 122 S.W.2d 389; State ex rel. Trading Post Co. v. Shain, 116 S.W.2d 99. (3) And the giving of said Instruction No. 6 was error prejudicial to the plaintiff for the further reason that it did not cover the entire field so as to constitute a proper sole cause instruction in an action under the Employers' Liability Act. It did not require the jury to find that Seago was guilty of negligence in any respect or degree. And it is particularly to be condemned in failing to inform the jury that contributory negligence on the part of Seago would constitute no bar to the action. As given, it could only have had the effect of confusing and misleading the jury as to the real issue to be resolved by them. Dilallo v. Lynch, 101 S.W.2d 7; Kirkham v. Jenkins Music Co., 104 S.W.2d 234; Peppers v. St. Louis-S. F. Ry. Co., 316 Mo. 1104. (4) The giving of said Instruction No. 6 was error prejudicial to plaintiff for the further reason that by the words "as the sole and direct result of his own act in stepping on or riding on the footboard," the court plainly assumed that Seago stepped on or was riding on the footboard. This unwarranted assumption alone rendered this instruction prejudicially erroneous. McCombs v. Fellis, 337 Mo. 491; Barr v. Nafziger Baking Co., 328 Mo. 423; Kamer v. M., K. & T. Ry. Co., 326 Mo. 792; Mahaney v. Auto Transit Co., 329 Mo. 793; Kirkham v. Jenkins Music Co., 104 S.W.2d 234; Hengelsberg v. Cushing, 51 S.W.2d 187. (a) And this erroneous assumption could not be cured or alleviated by subsequently throwing into the instruction the words, "if you find and believe from the evidence he did so." McCombs v. Fellis, 337 Mo. 491. (5) Said Instruction No. 6 is not only unsupported by the evidence, and confusing and misleading, but it is a thoroughly vicious and harmful instruction in that it constituted a plain, unwarranted comment on a detached portion of the evidence. It singled out a bit of testimony adduced by deendant, specially directed the jury's attention thereto, and gave the same undue prominence, in a manner highly prejudicial to plaintiff, this appellant. Keppler v. Wells, 238 S.W. 425; Zumwalt v. C. & A. Ry. Co., 266 S.W. 717; Colwell v. St. Louis-S. F. Ry. Co., 335 Mo. 494; Littig v. Urbaur Atwood Heating Co., 237 S.W. 779; B. F. Sturtevant Co. v. Ford Mfg. Co., 315 Mo. 1025; Burtch v. Wabash Ry. Co., 236 S.W. 338; Burton v. Holman, 231 S.W. 630; Rice v. Bridge & Transit Co., 216 S.W. 746; Lewis v. Terminal Railroad Assn., 61 S.W.2d 234; Mayfield v. K. C. Southern Ry. Co., 101 S.W. 769.

         Wilton...

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