Stolovey v. Fleming

• Citation: 8 S.W.2d 832,328 Mo. 623
• Parties: Leah Stolovey, Appellant, v. Fred Fleming and Francis M. Wilson, Receivers of Kansas City Railways Company
• Decision Date: 10 July 1928
• Court: United States State Supreme Court of Missouri

8 S.W.2d 832

328 Mo. 623

Leah Stolovey, Appellant, v. Fred Fleming and Francis M. Wilson, Receivers of Kansas City Railways Company

Supreme Court of Missouri

July 10, 1928

Appeal from Jackson Circuit Court; Hon. Charles R. Pence Judge.

Reversed and remanded.

Trusty & Pugh for appellant.

Charles L. Carr and Louis R. Weiss for respondents.

OPINION

Atwood P. J.

This is an action for personal injuries alleged to have been sustained by Leah Stolovey while she was endeavoring to board a street car in Kansas City, Missouri. The jury returned a verdict for defendants and from the judgment entered thereon plaintiff has appealed, assigning error in the giving of certain instructions. The first instruction complained of is number 3, given at the request of defendants, as follows:

"The court instructs the jury that the burden of proof is on the plaintiff to prove to your satisfaction by the preponderance or greater weight of the credible testimony that the defendants are guilty of negligence as submitted to you in the court's instructions, and this burden of proof continues and abides with plaintiff throughout the entire trial; and unless you believe and find from the evidence in the case that plaintiff has proven to your reasonable satisfaction by a preponderance of the credible testimony that the defendants are guilty of negligence as defined and submitted to you in the instructions of the court, and that such negligence was the direct and proximate cause of plaintiff's injuries, if any, then your verdict must be for the defendants."

Appellant asserts that "the petition is based on the res ipsa loquitur doctrine, and such an instruction has no place in a res ipsa loquitur case," citing Price v. Met. Street Ry., 220 Mo. 435, and other cases. Respondents insist that plaintiff's allegation of negligence is specific and not general, that this is therefore not a res ipsa loquitur case, but that whether it is or is not the foregoing instruction was properly given. According to appellant's abstract of the record plaintiff's allegation of defendants' negligence was that "she was thrown and injured by the carelessness and negligence of defendants' operators in charge of said car in starting the car while the plaintiff had one foot upon the step and trying to get thereon as a passenger." Appellant says this is a general charge of negligence, while respondents say that it is specific. In Bergfeld v. K. C. Rys. Co., 285 Mo. l. c. 665, we said: "In order to allege specific negligence, as said in the Price case, there must not only be an averment as to the particular servants whose negligence is complained of, but it must also be pointed out wherein they, or either of them, have been negligent." The pleading before us not only contains "an averment of the particular servants whose negligence is complained of," but it specifically points out wherein these servants were negligent, to-wit, "in starting the car while the plaintiff had one foot upon the step and trying to get thereon as a passenger." We are unable to conceive of a more definite and specific allegation of negligence and certainly such pleading does not bring the case within the doctrine of res ipsa loquitur. Consequently, cases cited by appellant in support of her claim that an instruction such as the above "has no place in a res ipsa loquitur case," are inapplicable here.

Appellant also says that instruction number 3 fails to define the term "preponderance of the credible testimony," citing Head v. Leming Lumber Co., 281 S.W. l. c. 444, where failure to define "preponderance of the evidence" is criticised though not held to be reversible error. The term "preponderance of the evidence" is defined in given instruction number 4. Appellant further complains that too great a burden was placed on plaintiff by the use of the term "to your reasonable satisfaction," citing Krause v. Spurgeon, 256 S.W. l. c. 1074. The expression here used is not the same as that found in the case cited. The word "reasonable" does not appear in the instruction criticised in the Krause case. We find no reversible error in the giving of instruction number 3.

Appellant next attacks instruction number 1, which is as follows:

"The Court instructs you that it is your duty, in considering the evidence, deliberating upon and determining the facts in this case, to first decide upon the question as to whether, under all the facts and circumstances, there is or is not any negligence upon the part of defendants' agent or agents servants and employees, as defined to you by other instructions. Until this question of negligence has been determined by you, you have no right to take into consideration the nature, character or extent of the alleged injuries to plaintiff, or the amount, if any, that the plaintiff is entitled to recover, because of...