Berry v. Kansas City Public Service Co.

• Decision Date: 30 July 1937
• Citation: 108 S.W.2d 98,341 Mo. 658
• Parties: Anna Nay Berry, by Her Next Friend, M. T. Nay, v. Kansas City Public Service Company, a Corporation, and James M. Kurn and John G. Lonsdale, Trustees of and for St. Louis-San Francisco Railway Company, a Corporation, Appellants
• Court: Missouri Supreme Court

108 S.W.2d 98

341 Mo. 658

Anna Nay Berry, by Her Next Friend, M. T. Nay, v. Kansas City Public Service Company, a Corporation, and James M. Kurn and John G. Lonsdale, Trustees of and for St. Louis-San Francisco Railway Company, a Corporation, Appellants

Supreme Court of Missouri

July 30, 1937

Appeal from Johnson Circuit Court; Hon. Leslie A. Bruce Judge.

Reversed and remanded.

Joseph W. Jamison, Henry S. Conrad, L. E. Durham, Hale Houts and Ilus M. Lee for James M. Kurn and John G Lonsdale, Trustees of and for St. Louis-San Francisco Railway Company.

(1) Questions presented and rights of the parties. Barr v Nafziger Baking Co., 328 Mo. 433; Grimes v. Red Line Service, 85 S.W.2d 770; McCombs v. Ellsbury, 85 S.W.2d 139. (2) The court erred in giving plaintiff's Instruction 1. The instruction erroneously authorized a verdict against the trustees for matters, which, if actionable, at all, were not actionable unless found by a jury to involve negligence. The instruction did not require the jury to find negligence but erroneously advised as a matter of law that any such matters constituted negligence. Sec. 4896, R. S. 1929; Boland v. St. L.-S. F. Ry. Co., 284 S.W. 145; State ex rel. Long v. Ellison, 272 Mo. 581; Hall v. Coal & Coke Co., 260 Mo. 367; Smith v. Bridge Co., 326 Mo. 127; Botts v. Railroad Co., 180 Mo.App. 368; Larsen v. Webb, 332 Mo. 378; State ex rel. Lusk v. Ellison, 271 Mo. 472; Boyd v. Wabash, 105 Mo. 381; Crawford v. Stockyards, 215 Mo. 44; Sullivan v. Railroad Co., 317 Mo. 1009; Clay v. Ry. Co., 5 S.W.2d 412; Nicholson v. Railroad Co., 297 S.W. 996; Lackey v. Ry. Co., 288 Mo. 147; Sevedge v. Ry. Co., 331 Mo. 320; American Vet. Lab. v. Kimm, 227 Mo.App. 817. (3) The court erred in giving the Public Service Company's Instruction K-9. (a) The instruction was erroneous because it involved and submitted no defense on the part of the Public Service Company, but merely directed a verdict against the trustees in addition to the Public Service Company. Barr v. Nafziger Baking Co., 328 Mo. 434; Grimes v. Red Line Service, 85 S.W.2d 770; Kennard v. Westerman, 279 Mo. 688; Phillips v. Railroad Co., 226 S.W. 865; Bode v. Wells, 322 Mo. 396; Bird v. Ry. Co., 78 S.W.2d 391; Lavignon v. Dietzel, 34 S.W.2d 93. (b) Instruction K-9 was further erroneous and prejudicial to the trustees in that it authorized a verdict against the trustees, and merely jointly with the Public Service Company, upon the theory that the motorman stopped before attempting to cross the Frisco track. The theory was in conflict with plaintiff's own testimony to the effect that the motorman did not stop and one which plaintiff was not entitled to submit to the jury. State ex rel. Weddle v. Trimble, 331 Mo. 9; Bollinger v. St. L.-S. F. Ry. Co., 334 Mo. 732; Elkin v. St. L. Pub. Serv. Co., 335 Mo. 958; Barr v. Nafziger Baking Co., 328 Mo. 434; Grimes v. Red Line Service, 85 S.W.2d 770; Shidloski v. Ry. Co., 333 Mo. 1145; Sevedge v. Ry. Co., 331 Mo. 320; Shepherd v. Ry. Co., 335 Mo. 606; Cavey v. St. Joseph Ry. Co., 331 Mo. 885; Caylor v. Ry. Co., 59 S.W.2d 661; Burge v. Railroad Co., 244 Mo. 102; Sullivan v. Railroad Co., 317 Mo. 1009; State ex rel. v. Bland, 313 Mo. 254; Rollison v. Railroad Co., 252 Mo. 541; Markowitz v. Railroad Co., 186 Mo. 359; McGowan v. Wells, 324 Mo. 666; Lavignon v. Dietzel, 34 S.W.2d 93. (c) Instruction K-9 was also erroneous because it presented a theory not supported by any evidence and even regardless of plaintiff's binding testimony. There was no evidence warranting a verdict under the instruction upon the theory that the engineer could have averted the collision either by stopping, slowing up, or warning. And if any one of the theories was unwarranted the entire instruction was error. Lackey v. Ry. Co., 288 Mo. 147; Sevedge v. Railroad Co., 331 Mo. 320; Caylor v. Ry. Co., 332 Mo. 851; Driscoll v. Wells, 29 S.W.2d 50; Cervillo v. Manhattan Oil Co., 226 Mo.App. 1115; Christner v. Ry. Co., 228 Mo.App. 228; Shidloski v. Ry. Co., 333 Mo. 1145; McGowan v. Wells, 324 Mo. 666; Shepherd v. Ry. Co., 335 Mo. 606; Cavey v. St. Joseph Ry. Co., 331 Mo. 885; Caylor v. Ry. Co., 332 Mo. 851, 59 S.W.2d 661; Burge v. Railroad Co., 244 Mo. 102; Sullivan v. Railroad Co., 317 Mo. 1009; State ex rel. v. Bland, 313 Mo. 254; Rollison v. Railroad Co., 252 Mo. 541; Markowitz v. Railroad Co., 186 Mo. 359. (4) The Public Service Company's complaint of Instruction D-2. Authorities: Points 1, 3(a), 3(b).

Charles L. Carr and Watson, Ess, Groner, Barnett & Whittaker, for Kansas City Public Service Company.

(1) The court erred in refusing to give Instruction K-5 requested by Kansas City Public Service Company. (a) It is reversible error to refuse an instruction which is within the issues, which properly declares the law, and which presents a phase of the case which is not clearly presented by the instructions which are given. Devitt v. Pac. Railroad, 50 Mo. 302; Louisville & N. Railroad Co. v. Holloway, 246 U.S. 528; Kendrick v. Ryus, 225 Mo. 169; Latham v. Hosch, 207 Mo.App. 388; Rosemann v. United Rys. Co., 197 Mo.App. 337; Salzman v. Athletic Tea Co., 236 S.W. 908; Turner v. Butler, 253 Mo. 215. (b) The burden was on plaintiff to prove that the alleged negligence proximately caused the diseased condition of her appendix and fallopian tubes, the existence of the cyst, and the operation necessitated thereby. Battles v. United Rys. Co., 178 Mo.App. 596; Nevinger v. Haun, 197 Mo. App., 416; Bennett v. Equipment Co., 214 S.W. 244; Dyer v. Sutherland Bldg. & Contracting Co., 258 S.W. 48; Grindstaff v. Goldberg & Sons, 328 Mo. 72, 40 S.W.2d 702; Epperson v. Postal Telegraph Cable Co., 155 Mo. 346; Smart v. Kansas City, 91 Mo.App. 586. (c) When a disease develops subsequent to receiving personal injuries, unless the disease is such that it is common knowledge that such disease usually follows such an injury, it is necessary for plaintiff to introduce affirmative evidence showing that the injury was the proximate cause of the subsequent disease. O'Leary v. Scullin Steel Co., 303 Mo. 363; Spencer v. Railroad Co., 317 Mo. 503; High v. Railroad Co., 318 Mo. 452; Phillips v. Travelers Ins. Co., 288 Mo. 175; Cardinale v. Kemp, 309 Mo. 241; Nevinger v. Haun, 197 Mo.App. 416; Adelsberger v. Sheehy, 59 S.W.2d 644; Cox. v. M.-K.-T. Railroad Co., 76 S.W.2d 411; Kimmie v. Terminal Railroad Assn., 66 S.W.2d 561. (d) Testimony of a physician that a diseased condition "could" have resulted from an injury fails to make a prima facie showing that it was caused by the injury. Cox v. M.-K.-T. Railroad Co., 76 S.W.2d 411; Kimmie v. Terminal Railroad Assn., 66 S.W.2d 561; Adelsberger v. Sheehy, 59 S.W.2d 644; Scanlon v. Kansas City, 81 S.W.2d 939; Feltz v. Terminal Railroad Assn., 81 S.W.2d 620; O'Leary v. Scullin Steel Co., 303 Mo. 363. (2) It is error to give conflicting or contradictory instructions. Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Schimmelpfenning v. Wells, 24 S.W.2d 154; Smith v. Ohio Millers' Mut. Fire Ins. Co., 325 Mo. 51, 26 S.W.2d 962; Nagy v. St. Louis Car Co., 37 S.W.2d 513; Mahaney v. K. C. Auto Transit Co., 329 Mo. 793, 46 S.W.2d 817; Wilson v. Chattin, 72 S.W.2d 1001. (a) There was no evidence that plaintiff was guilty of any contributory negligence whatsoever. It was obvious that somebody was liable for her injuries. Therefore Instruction D-2, which told the jury that defendant trustees were not liable if they found that no employee of the Street Railway Company went forward to the tracks and if they found that the motorman undertook to cross the railroad tracks in front of the approaching train, was highly misleading because it had the natural tendency to cause the jury to believe that if they found such facts, then the Kansas City Public Service Company was liable, and that the law regarded the failure of an employee to go forward to the tracks as the proximate cause of the injury. The misleading nature of the instruction destroyed all benefit which Kansas City Public Service Company would otherwise have obtained by the giving of Instruction K-2. (b) Instructions intending to confuse or mislead the jury are erroneous. Anderson v. Kincheloe, 30 Mo. 520; Crole v. Thomas, 17 Mo. 329; Klamp v. Rodewalt, 19 Mo. 449; Belt v. Goode, 31 Mo. 128; Deere v. Plant, 42 Mo. 60; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Christner v. C., R. I. & P. Ry. Co., 64 S.W.2d 752; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Porter v. Mo. Pac. Railroad Co., 199 Mo. 82. (c) Kansas City Public Service Company may complain of an instruction given at the request of its codefendants which prejudicially affected the presentation of the theory of Kansas City Public Service Company's liability to plaintiff. Grimes v. Red Line Service Co., 85 S.W.2d 767; Gableman v. Bolt, 68 S.W.2d 914.

Jenkins & Vance and Musser, Musser & Cooper for respondent.

(1) The court properly refused Instruction K-5 requested by Kansas City Public Service Company. (a) Whether or not the operation performed on plaintiff three weeks after the accident was proximately caused by the injuries sustained, was properly submitted as a jury question. All of the medical testimony taken together made this an issue to go to the jury. O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Mumaw v. Telephone Co., 208 S.W. 408; Reese v. Loose-Wiles, 224 S.W. 63; Kimmie v Terminal Railroad, 66 S.W.2d 561; Nordmann v. Hahn, 298 S.W. 1040; Scanlon v. Kansas City, 81 S.W.2d 939; Kelso v. Ross Const. Co., 85 S.W.2d 527. (b) Appellant street car company has waived all objections to the alleged incompetent testimony of the doctors by its own examination of the doctors, hence, the court's action in refusing its Instruction K-5 was not error. Stevens v. Wesport Laundry, 25 S.W.2d 496; Meffert v....