Byars v. St. Louis Pub. Serv. Co.

• Decision Date: 20 December 1933
• Docket Number: No. 31199.,No. 31198.,31198.,31199.
• Citation: 66 S.W.2d 894
• Parties: WILLIAM VINCENT BYARS v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and FEHLIG-FERRENBACH, INC., Appellants.
• Court: Missouri Supreme Court

66 S.W.2d 894

WILLIAM VINCENT BYARS v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and FEHLIG-FERRENBACH, INC., Appellants.

No. 31198.

No. 31199.

Supreme Court of Missouri.

Division Two, December 20, 1933.

Appeal from Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.

AFFIRMED.

T.E. Francis, B.G. Carpenter and Allen, Moser & Marsalek for St. Louis Public Service Company.

(1) There is no evidence at all that the motorman at any time saw the plank close enough to the track to be struck by or to come in contact with a passing car; nor is there any evidence to warrant a finding that the motorman could have seen the plank in such position in time to have avoided the casualty by stopping or otherwise, since there is no evidence that it was in such position for any length of time — even for an instant — before the car came in contact with it. Lackey v. United Rys. Co., 288 Mo. 120; Ziegelmeier v. Ry. Co., 51 S.W. (2d) 1025; Miller v. Wilson, 288 S.W. 997; Beal v. Ry. Co., 256 S.W. 733. And the circumstances being such as to constitute an assurance of safety, there was no negligence on the part of the motorman in passing the barrier as he had been doing. Schmidt v. Ry. Co., 30 N.E. 389. (a) The jury could not have returned a verdict against this appellant on the theory that the motorman ought to have seen and avoided the danger, without piling inference upon inference, nor without utilizing inferences unwarranted by the evidence and that spin out into pure conjecture. A verdict cannot rest upon pure speculation and conjecture. Warner v. Railroad, 178 Mo. 125; Hamilton v. Railroad, 318 Mo. 123; State ex rel. Pub. Utilities Co. v. Cox, 298 Mo. 427; Layton v. Chinberg, 282 S.W. 434; Cardinale v. Kemp, 309 Mo. 276; State ex rel. City of Macon v. Trimble, 12 S.W. (2d) 735; Swearingen v. Railroad, 221 Mo. 644; Yarnell v. Railroad, 113 Mo. 570; Goodson v. Schwandt, 318 Mo. 666. (b) The evidence as a whole strongly supported the inference that the plank slipped from the curved rim of the barrel on which it rested as the car was passing, and that in falling it was caught by the side of the car where the moulding was torn off. The evidence made it highly probable that the accident happened in this manner from a cause for which this appellant was not responsible. And if we assume arguendo, that there was any evidence legitimately tending to show that the casualty may have resulted from some cause for which this appellant would be liable, still plaintiff's case must fail. Where the evidence goes no farther than to make it appear that the injury may have resulted from either one or the other of two causes, for one of which, and not the other, the defendant could be liable, no recovery may be had. Warner v. Railroad Co., 178 Mo. 125; Hamilton v. Railroad Co., 318 Mo. 123; Van Bibber v. Swift & Co., 286 Mo. 317; Fuchs v. St. Louis, 133 Mo. 197; Strother v. Railroad Co., 188 S.W. 1105; Coin v. Lounge Co., 222 Mo. 509. (c) No recovery could be had upon the theory of negligent speed of the car for the reasons: No causal connection was shown between the speed of the car — whatever it was — and the casualty. Wood v. Wells, 270 S.W. 332; Heinsle v. Ry. Co., 182 Mo. 528; De Moss v. K.C. Ry. Co., 296 Mo. 526; Battles v. United Rys. Co., 178 Mo. App. 596; King v. Railroad, 211 Mo. 1; Schmidt v. Transit Co., 140 Mo. App. 187; Bluedorn v. Railroad, 121 Mo. 258. The petition does not count upon negligent speed, but upon negligence in failing to avoid the "collision" after the motorman saw or ought to have seen the danger. State ex rel. Goessling v. Daues, 314 Mo. 482; State ex rel. Coal & Coke Co. v. Ellison, 270 Mo. 645. (2) The giving of Instruction 1 was error prejudicial to defendant St. Louis Public Service Company, for the reason that it is broader than the evidence and authorized the jury to find facts unsupported by the evidence. The giving of an instruction that is broader than the evidence, hypothesizing facts unsupported by the evidence, is prejudicial reversible error. State ex rel. Goessling v. Daues, 314 Mo. 482; Althage v. People's Motorbus Co., 8 S.W. (2d) 924; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; Dixon v. Construction Co., 318 Mo. 63. (3) In view of plaintiff's age and life expectancy, and the fact that his "revenue-producing work" averaged him only $500 to $800 per year, and there was no evidence suggesting any future loss of earnings, this appellant submits that the verdict is excessive. Brucker v. Gambaro, 9 S.W. (2d) 918; Spencer v. Railroad, 317 Mo. 492; Kleinlein v. Foskin, 13 S.W. (2d) 648; Schupack v. Mehsevsky, 300 S.W. 465; Powell v. K.C. Rys. Co., 226 S.W. 916; Coin v. Rys. Co., 228 S.W. 78. Particularly is this true in view of the present purchasing power of money, a condition which prevailed at the time of the rendition of this verdict, of which this court will take judicial notice. Hurst v. Burlington Ry. Co., 280 Mo. 575; Sachse v. Highland Dairy Farms Co., 45 S.W. (2d) 937.

Jones, Hocker, Sullivan & Gladney for Fehlig-Ferrenbach, Inc.

(1) There was no evidence of any negligence on the part of defendant Fehlig-Ferrenbach, Inc. Pyburn v. Kansas City, 166 Mo. App. 150. (2) Even if the evidence had been sufficient to justify a finding that defendant Fehlig-Ferrenbach, Inc., had placed the plank of the barrier in the position it was in at the time of the accident, nevertheless the negligence of defendant St. Louis Public Service Company in striking this barrier, and not the negligence of Fehlig-Ferrenbach, Inc., was the proximate cause of the accident. Kappes v. Brown Shoe Co., 116 Mo. App. 171; Steenbach v. Omaha Country Club, 195 N.W. 117; Furlong v. Roberts, 150 N.Y. Supp. 166; Johnson v. Mallory, 243 N.W. 872; Evans v. Des Moines, 151 N.W. 397; Wolff Mfg. Co. v. Nelson, 38 N.E. 694; 45 C.J. 931; Wharton on Law of Negligence, sec. 134.

Glendy B. Arnold and William H. Biggs for respondent.

(1) There was no error in the court's rulings on appellant's demurrers to the evidence. A prima facie case having been made the court may not raise up inferences heretofore unmentioned to defeat it. Freeman v. Pub. Serv. Co., 30 S.W. (2d) 176; McClellan v. Kansas City P.S. Co., 19 S.W. (2d) 905; Johnson v. Springfield Traction Co., 161 S.W. 1196; Sebek v. Wells, 18 S.W. (2d) 519; Cech v. Chemical Co., 323 Mo. 609; Buesching v. Gas Co., 73 Mo. 230; Maginnis v. Ry. Co., 268 Mo. 675; Eckhard v. St. Louis Transit Co., 190 Mo. 611. (2) Respondent's Instruction 1 is no broader than the issues made by the pleadings and sustained by the evidence. (3) No error was committed by the court in giving to the jury respondent's Instruction 6. Appellant having asked no instruction limiting the damages cannot now complain of Instruction 6. Sang v. St. Louis, 262 Mo. 459; Powell v. Ry. Co., 255 Mo. 454. (4) The verdict of the jury is not excessive. Kleinlein v. Foskin, 13 S.W. (2d) 648; Milter v. Harpster, 273 Mo. 605; Zumwalt v. Railroad, 266 S.W. 717; Skinner v. Davis, 312 Mo. 581; Devoy v. Transit Co., 192 Mo. 198. (5) The fact that appellant's motorman did not know he had collided with the barrier is all but conclusive that he was negligent. Knittel v. Rys. Co., 147 Mo. App. 682. (6) In civil cases it is not necessary that the inference relied upon to establish a disputed fact should do so to a moral certainty or beyond a reasonable doubt, but only fairly and reasonably so. 1 Wigmore, sec. 25. (7) The court will take judicial notice of the fact that the car in this case could have been brought under control and stopped in time to avoid the collision after the danger thereof first arose. Downs v. Rys. Co., 184 S.W. 925; Latson v. Transit Co., 192 Mo. 449.

FITZSIMMONS, C.

Plaintiff in the St. Louis County Circuit Court obtained judgment in the sum of $10,000 damages for personal injuries, against both defendants, St. Louis Public Service Company and Fehlig-Ferrenbach, Inc. From this judgment both defendants took separate appeals which we will consider together.

Appellant, St. Louis Public Service Company at the time of respondent's injury, October 24, 1929, operated an electric street railway system. Part of this system was a westbound single track on Washington Avenue, in Kirkwood, St. Louis County, over which track ran cars of the Kirkwood-Ferguson and Manchester lines. Appellant, Fehlig-Ferrenbach, Inc., was a construction company, and, at the time mentioned, was engaged in the work of laying a concrete surface on the south side of Washington Avenue, between Fillmore Street at the east and Kirkwood Road at the west. Taylor Avenue, a north and south street, intersected Washington Avenue midway between Fillmore Street and Kirkwood Road. Appellant, Fehlig-Ferrenbach, Inc., put up guards, or barricades at the intersection in order to keep vehicles from entering upon or traveling over the freshly laid concrete on Washington Avenue, and also from passing along Taylor Avenue over the intersection. The most westerly of these barricades was immediately east of the west cross-walk of Taylor Avenue at its intersection with Washington Avenue. This barricade consisted of a metal drum or barrel, standing upright near the car track, and of a plank, one end of which lay upon the top or the rim of the barrel and the other end rested in the street near the curb of the intersecting streets. The west cross-walk of Taylor Avenue at the Washington Avenue intersection was open to persons on foot going north or south, and the westbound track on Washington Avenue was being used by the street cars of the service company. Respondent, in his amended petition, describing the circumstances of his injury, states that, on the day in question, "he walked south across said Washington Avenue, on the west side of Taylor Avenue, on that part of said Washington Avenue commonly used by pedestrians in crossing said street, at said place, and within close proximity to said barricade, and when he had reached a point, at or near the...