295 S.W. 757 (Mo. 1927), 25976, Peppers v. St. Louis-San Francisco Railway Company

Docket Nº:25976
Citation:295 S.W. 757, 316 Mo. 1104
Opinion Judge:DAVIS
Party Name:Orbitt S. Peppers and Lottie Peppers, Appellants, v. St. Louis-San Francisco Railway Company
Attorney:Douglass & Inman for appellants. E. T. Miller and A. P. Stewart for respondent.
Judge Panel:Davis, C. Higbee, C., concurs.
Case Date:April 09, 1927
Court:Supreme Court of Missouri
 
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Page 757

295 S.W. 757 (Mo. 1927)

316 Mo. 1104

Orbitt S. Peppers and Lottie Peppers, Appellants,

v.

St. Louis-San Francisco Railway Company

No. 25976

Supreme Court of Missouri

April 9, 1927

Appeal from Circuit Court of City of St. Louis; Hon. Robert W. Hall, Judge.

Reversed and remanded.

Douglass & Inman for appellants.

(1) The court erred in refusing to give and read to the jury Instruction B, requested by plaintiffs, which presented plaintiffs' theory of this case, as there was no other instruction given covering plaintiffs' theory. Coleman v. Roberts, 1 Mo. 27; Cohn v. Peid, 18 Mo.App. 135; Wren v. Railways Co., 129 Mo.App. 596; Redens v. Redens, 29 Mo. 470; Kraft v. McBoyd, 32 Mo.App. 399; Salzman v. Tea Co., 236 S.W. 907; Jennings v. Cooper, 230 S.W. 325; Evans v. Klusmeyer, 257 S.W. 7039; Bank v. Wells, 274 S.W. 939; Rooker v. Railway Co., 204 S.W. 556; Smith v. Southern, 210 Mo.App. 288; Miller v. Railways Co., 247 S.W. 230; Collins v. Rankin Farms, 180 S.W. 1053; Warehouse & Storage Co. v. Tooney, 181 Mo.App. 64; Northam v. United Rys. Co., 176 S.W. 229; Davitt v. Railroad Co., 50 Mo. 302; Harris v. Railroad Co., 263 Mo.App. 324. (2) The court erred in refusing to give and read to the jury Instruction C, offered by the plaintiffs, which told the jury that the burden of proof was on the defendant to prove, by a preponderance of the evidence, that decedent was guilty of contributory negligence, and also in determining whether decedent was guilty of negligence. All that the law required of her in order to be in the exercise of ordinary care was that she use such care as an ordinarily prudent person, riding in an automobile as a passenger or guest, would have used at the time and under the circumstances. This was a correct declaration of the law and the instruction should have been given. Hiatt v. Railroad Co., 271 S.W. 806; Banker v. Wells, 274 S.W. 939; Longan v. Railroad Co., 253 S.W. 758; Ross v. Wells, 253 S.W. 28; Treadway v. United Rys. Co., 253 S.W. 1037; Betz v. Railroad Co., 253 S.W. 1089. (3) The court erred in giving and reading to the jury at the request of the defendant Instruction 6 relative to the duty of the driver of the automobile, which instruction was so worded as to lead the jury to believe that decedent could not recover if the collision was due to the contributory negligence of the driver of the automobile. The instruction was so worded as to mislead and confuse the jury, and cause them to believe that the negligence of the driver was imputed to decedent, or that decedent in some manner was responsible for the negligence of the driver. Boland v. Frisco Ry. Co., 284 S.W. 141; Ebert v. Railways Co., 174 Mo.App. 45; Treadway v. Railways Co., 300 Mo. 156; Boyd v. Kansas City, 291 Mo. 622. (4) The court erred in giving and reading to the jury of its own motion Instruction 3, which attempted to define the terms "burden of proof" and "preponderance of the evidence." Hite v. Railway Co., 225 S.W. 961; Trautmann v. Trautmann, 300 Mo. 314; Brown v. Am. Car & Fdry. Co., 271 S.W. 540. (5) The court erred in permitting the witness Brewster on cross-examination by defendant to state that he would not permit people other than his tenants to use the road over the Magazine farm mentioned in the evidence, as the evidence had already disclosed that this road had been in use for thirty years, and by a continued use for this period of time had become a public road. Leiweke v. Link, 147 Mo.App. 19; Walker v. Railroad Co., 198 S.W. 441; Sikes v. Frisco Ry. Co., 127 Mo.App. 326; Brown v. Railroad, 20 Mo.App. 432; Roberts v. Railroad Co., 43 Mo.App. 287; Walton v. Railroad, 67 Mo. 56. (6) Under the evidence which disclosed that this crossing had been used by the public for at least thirty years it was then the duty of the railroad company to either ring the bell or blow the whistle at least eighty rods before reaching this crossing, as required by statute. Kennedy v. Railroad, 105 Mo. 270; Kelley v. Railroad, 88 Mo. 534; Petty v. Railroad, 88 Mo. 305; State ex rel. v. Reynolds, 226 S.W. 564. (7) The court erred in refusing to permit plaintiffs' counsel on cross-examination of the witness Fogherty to read certain questions and answers contained in an admittedly correct transcript of the evidence of this witness given in this same accident at a former trial. This was competent for the purpose of impeaching this witness and was a proper method of examination. State ex rel. v. Trimble, 250 S.W. 396; Turnbow v. Railroad, 277 Mo. 644; State v. Meyers, 198 Mo. 255; Wilkerson v. Eiler, 114 Mo. 215. (8) The court erred in refusing to permit plaintiffs to argue to the jury, and in sustaining defendant's objection to plaintiffs' argument to the jury, that the defendant would be responsible for the combined negligence of the defendant and the driver of the automobile if the jury found the death of deceased was caused by the combined negligence of the driver and the defendant. Applegate v. Railroad, 252 Mo. 198; Harrison v. Electric Co., 195 Mo. 606.

E. T. Miller and A. P. Stewart for respondent.

(1) It was not reversible error to refuse plaintiff's requested Instruction B. This instruction purported to cover the whole case and directed a verdict, but excluded from the consideration of the jury the evidence tending to support the pleaded defense of contributory negligence on the part of deceased. Brownlow v. Wollard, 66 Mo.App. 642; Clark v. Hammerle, 27 Mo. 55, 70; Bank v. Murdock, 62 Mo. 73; Fitzgerald v. Hayward, 50 Mo. 523. (2) No error was committed in refusing plaintiffs' requested Instruction C. The same matter was fully covered in almost identical language by Instruction 2 given at the instance of plaintiffs. Richardson v. Railways, 288 Mo. 258; Varley v. Taxicab Co., 240 S.W. 218. (3) Defendant's Instruction 6 was a correct and proper instruction, and it was not error to give the same. This instruction deals with the negligence of the driver of the automobile as the sole cause of the collision and consequent death of deceased, and is not based on the doctrine of imputed negligence. Fechley v. Traction Co., 119 Mo.App. 367; State ex rel. v. Bland, 237 S.W. 1020; Kelsay v. Railway, 129 Mo. 372; Landrum v. Railway, 178 S.W. 275; Monroe v. Railway Co., 297 Mo. 633; Henderson v. Railway, 284 S.W. 794. (4) No error was committed in refusing to permit plaintiffs' counsel, on cross-examination of defendant's witness Fogerty, to read detached questions and answers from a transcript of said witness's testimony given on the trial of another case growing out of the same accident, and to ask said witness whether he had so testified. This practice or method of cross-examination of a witness has been condemned by this court in no uncertain terms. Littig v. Heating Co., 292 Mo. 226; Carter v. Railway, 249 S.W. 126; Slaughter v. Mule Co., 259 S.W. 135. (5) Under all the evidence, the jury were justified in finding that defendant was not negligent in respect of giving warning of the approach of the passenger train, and that the negligence of the driver of the automobile was the sole cause of the collision and consequent death of the deceased. Hence, there was no reversible error in admission or rejection of evidence or in the giving or refusal of instructions. Waldman v. Const. Co., 289 Mo. 622; Trainer v. Mining Co., 243 Mo. 359; Fritz v. Railroad, 243 Mo. 62; Keane v. Klausman, 21 Mo.App. 485; Cutshall v. McGowan, 98 Mo.App. 702; Potes v. Pyle, 202 S.W. 446. (6) The verdict being for the right party, error, if any, in the giving or refusal of instructions was harmless. Baustian v. Young,...

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