Clark v. Atchison & Eastern Bridge Co.

• Decision Date: 03 February 1930
• Docket Number: No. 27991.,27991.
• Citation: 24 S.W.2d 143
• Parties: CHARLES F. CLARK, A Minor, by ROY C. CLARK, His Next Friend, v. ATCHISON & EASTERN BRIDGE COMPANY, Appellant.
• Court: Missouri Supreme Court

24 S.W.2d 143

CHARLES F. CLARK, A Minor, by ROY C. CLARK, His Next Friend, v. ATCHISON & EASTERN BRIDGE COMPANY, Appellant.

No. 27991.

Supreme Court of Missouri, Division No. 1.

February 3, 1930.

Appeal from Buchanan Circuit Court. — Hon. Sam Wilcox, Judge.

AFFIRMED.

Stringfellow & Garvey and W.F. Guthrie for appellant.

(1) A verdict manifestly for the right party should be sustained regardless of immaterial errors, if any. Brook v. Barker, 228 S.W. 806; Moloney v. Bank, 232 S.W. 133; Hayden v. Gravel Co., 186 S.W. 1193; Cowherd v. Railway, 131 S.W. 755; Williams v. Mitchell, 112 Mo. 300; Cloos v. Prussman, 300 S.W. 315; Beal v. Kansas City, 228 S.W. 999; Hoopendyle v. Wells, 291 S.W. 522; Alexander v. Railway, 4 S.W. (2d) 891; Flannagan v. Railway Co., 297 S.W. 467. (2) The court will take as true the undisputed testimony of reputable witnesses, and even disregard slight testimony to the contrary where evidently not credible. Moloney v. Bank, 232 S.W. 138; Hayden v. Gravel Co., 186 S.W. 1193; Williams v. Mitchell, 112 Mo. 300; Noble v. Blount, 77 Mo. 235. (3) If the instructions deemed by the trial court to involve error in fact did so, such error was cured by other instructions for plaintiff as well as defendant; the alleged erroneous instructions were asked and given on the same trial theory as that upon which plaintiff presented instructions; and the plaintiff failed to request clarification of these instructions by the trial court if then believing same to have been misleading. Toeneboehn v. Railroad Co., 298 S.W. 795; Coleman v. Rightmyer, 285 S.W. 403; Moloney v. Bank, 232 S.W. 133.

Miles Elliott and Duvall & Boyd for respondent.

(1) The motion for a new trial was rightly ruled, not only on the grounds assigned, but on other grounds as well. Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174. (2) There was an abundance of evidence justifying submission to the jury of the issue of causal connection between defendant's negligence and plaintiff's injuries. (3) Even a casual reading of the record will disclose that the trial court could not have declared plaintiff guilty of contributory negligence, without doing violence to the well established rule of law in this State. Indeed, there is only meager evidence even warranting the submission of that question to the jury. (4) There is in this record no such thing as "undisputed reputable evidence" establishing contributory negligence on the part of plaintiff. (5) Instructions numbered 10, 13, 20 and 22 were each erroneous and the trial court, on motion for a new trial, correctly so held. (a) Instruction 10 erroneously placed upon plaintiff the burden of showing affirmatively that he was not guilty of any contributory negligence, while, under the law, contributory negligence is an affirmative defense and the burden of showing it rests upon the defendant. Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174. (b) Instruction 13 contained the vice of assuming (without having the jury find) that plaintiff was not driving his truck in a careful and prudent manner, and directed a verdict for the defendant. It was, therefore, prejudicially erroneous. (c) Instruction 20 contains at least four vices: It assumes a failure of plaintiff to exercise care; it gives the jury a roving commission to find that such assumed failure of plaintiff to exercise care "in any manner" or way directly contributed to his injury; it then directs a verdict for the defendant based upon such unwarranted assumption of contributory negligence and such roving commission in respect thereto; and the second paragraph thereof could serve no purpose, save to becloud the minds of the jury and lead them astray. It erroneously directs the jury to first determine the question of contributory negligence and then decide the question of defendant's negligence, whereas the orderly way of proceeding is first to determine whether or not defendant has been guilty of negligence, and then, if so, whether or not plaintiff has been guilty of contributory negligence which would bar his recovery. (d) Instruction 22 is erroneous in that it, in effect, places upon the plaintiff the burden of disproving contributory negligence, and directs a verdict for the defendant. Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174.

SEDDON, C.

Plaintiff, a minor, brought this action by next friend to recover damages in the sum of $50,000 for personal injuries alleged to have been caused and suffered on or about April 3, 1925, by reason of the negligence of defendant corporation, which owns, operates and maintains a toll bridge across the Missouri River, extending between the city of Atchison, in the State of Kansas, and the town of Winthrop, or East Atchison, in the State of Missouri. The bridge in question is used for railroad, pedestrian and vehicular traffic, and a single railroad track extends along and across such bridge, which track is used by several railroad carriers. A trial and submission of the action to a jury resulted in the return of a verdict, signed by ten jurors, wherein the finding of the jury was for the defendant, and against the plaintiff. A motion for a new trial was duly filed by plaintiff, and upon argument and submission thereof to the trial court, the motion was sustained by the court upon the specified ground of error in the giving of four certain instructions to the jury at the request of defendant. From the order of the trial court sustaining such motion and granting a new trial of the action, the defendant was allowed an appeal to this court.

The action was brought against the Bridge Company and four named railroad corporations, as co-defendants, but was dismissed as to the four railroad corporations prior to the trial and submission of the action. The petition charges the defendant Bridge Company with negligence in the following particulars:

"That, at all the times herein mentioned, it was the duty of defendant(s) to maintain and keep the said bridge and the floor and vehicle track thereof in a reasonably safe condition for vehicle traffic, including motor vehicle traffic; that on or about the third day of April, 1925, and for a long time prior thereto, defendant(s) negligently caused, permitted and allowed the floor and the surface of the floor of said bridge, near the east end thereof, to become and be and remain in a defective, unsafe and dangerous condition for vehicle traffic and travel; that defendant(s) then and there, and for a long time prior thereto, negligently maintained the rails of the railroad tracks crossing said bridge, and negligently permitted and allowed same to be and remain, higher than the floor of said bridge, and negligently allowed and permitted the tops of said rails to stand and extend above the surface of the floor of said bridge and negligently caused, permitted and allowed the floor of said bridge to then and there become and be and remain in such condition that when heavy vehicles passed over said floor the said floor and boards or planks thereof were caused to give down and to sink, so that the tops of said rails extended a great distance above the surface of said floor; that defendant(s) then and there negligently permitted and allowed the boards along and by and on the south side of the north rail of said railroad track to become and be and remain in such a worn and defective condition that a rut or groove was caused and permitted to be and remain along and on the south side of said north rail of said railroad track; that on account of the condition of said rail and said floor and the surface thereof and said groove or rut along and by the said rail, the said bridge of defendant(s) was then and there rendered unsafe and dangerous for vehicle traffic and travel."

The answer of defendant Bridge Company is a general denial, coupled with a plea of contributory negligence on the part of plaintiff, as follows:

"Further answering, defendant states that when plaintiff approached the place of said accident, the plaintiff failed to give his attention to the driving of said truck at a time and place where it was well known to plaintiff that a turn was required; that plaintiff at the time of the accident complained of was driving a truck at a high and dangerous rate of speed and at a rate of speed in excess of the legal speed-limit under the existing conditions, and was driving said truck at said high and dangerous rate of speed at a time and place where and when the roadway was moist and wet from rain and mist, with no safety chains in use; that said plaintiff was driving and endeavoring to control said truck from a seat reasonably sufficient in size for two persons only, but that plaintiff had invited three guests and had said seat at said time occupied by four persons; that said seat was so small that with this number of occupants plaintiff was so cramped as to make it impossible to have reasonable control of his movements and of the truck; that while traveling at such high and dangerous rate of speed, plaintiff suddenly applied the brakes and held same applied, thereby causing the truck to skid, travel sideways and overturn, and held same applied until said truck was overturned; that at a point where a turn was required, plaintiff failed to guide and turn the truck at such an angle and at such a rate of speed as the obvious condition of the roadway required; that plaintiff's negligent conduct, as above stated, directly contributed to the accident and injury complained of."

No reply is shown by the record to have been filed by plaintiff, but the cause was tried and submitted as though a reply, consisting of a general denial of the averments of the answer, had been filed.

It is uncontroverted upon the record herein that the corporate defendant, the Atchison and Eastern Bridge Company, on April 3, 1925, and for many years prior thereto, was the owner and operator of the toll bridge in question, and was chargeable with the proper maintenance of such bridge. The bridge extends in a...