Connole v. East St. Louis & S. Ry. Co.

• Decision Date: 11 March 1937
• Docket Number: 33538
• Parties: Martha Connole, Administratrix of the Estate of Louis Di Carlo, Appellant, v. East St. Louis & Suburban Railway Company, a Corporation
• Court: Missouri Supreme Court

102 S.W.2d 581

340 Mo. 690

Martha Connole, Administratrix of the Estate of Louis Di Carlo, Appellant, v. East St. Louis & Suburban Railway Company, a Corporation

No. 33538

Supreme Court of Missouri

March 11, 1937

[Copyrighted Material Omitted]

Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.

Reversed and remanded.

Douglas H. Jones and J. R. Vettori for appellant.

(1) The verdict of the jury was against all the evidence and there was no credible evidence to support the verdict. Where there is no credible evidence to support the verdict this court will set aside such verdict and grant a new trial. Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 62 S.W.2d 1079; Moore v. Washington Life & Acc. Ins. Co., 58 S.W.2d 763; Trent v. Barber, 56 S.W.2d 151. (2) Defendant's given Instruction 5 is erroneous because (a) it assumes controverted facts; (b) it is broader than the petition and constitutes a departure; (c) there is no evidence to support the charge; and (d) there is no proximate cause or causal connection required to be found. Such instruction is prejudicially erroneous. (a) Where an instruction assumes controverted facts, it is prejudicially erroneous. Harting v. East St. Louis Ry. Co., 84 S.W.2d 914; Hencke v. St. L. & H., 72 S.W.2d 798; Mahaney v. Ry. Co., 329 Mo. 879, 46 S.W.2d 817; Causey v. Wittig, 321 Mo. 358, 11 S.W.2d 11; Smith v. Woodmen of the World, 179 Mo. 119, 137, 77 S.W. 862; McFadin v. Catron, 120 Mo. 254, 25 S.W. 506; Kansas City, C. C. & St. J. Railroad Co. v. Couch, 187 S.W. 65; Bente v. Finley, 83 S.W.2d 155; Mott v. C. R. I. & P., 79 S.W.2d 1057; McCombs v. Ellsberry, 85 S.W.2d 135; Boyer v. General Oil Products, 78 S.W.2d 450. (b) Where an instruction is broader than the pleading and constitutes a departure it is prejudicially erroneous. Latham v. Harvey, 203 Mo.App. 363, 218 S.W. 401; Falder v. Nugents, 251 S.W. 141; Selinger v. Cromer, 208 S.W. 871; Watts v. Moussette, 85 S.W.2d 487; Crupe v. Spicuzza, 86 S.W.2d 347; Counts v. Thomas, 63 S.W.2d 416; State v. Thompson, 85 S.W.2d 594; Lyons v. Wells, 270 S.W. 129. (c) There was no evidence to support the charge in the instruction. An instruction not based upon or authorized by the evidence is misleading, confusing and erroneous. Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 2. (d) This instruction did not require the jury to find that there was any causal connection between the alleged negligence and the injury. It is therefore fatally defective. (3) Defendant's given Instruction 6 is erroneous in that: (a) no causal connection is pointed out between the alleged negligence and the injury; (b) it assumes controverted facts, irrespective of negligence; there is no evidence to support the charge. Such an instruction is prejudicially erroneous. (a) Where the jury is not required to find a causal connection between the alleged negligence and the injury, the instruction is fatally defective. Lackey v. United Rys., 288 Mo. 120, 231 S.W. 963; McGee v. Railroad Co., 214 Mo. 530, 114 S.W. 33; King v. Railroad Co., 211 Mo. 1, 109 S.W. 671; St. Louis & H. Railroad Co. v. Walsh Fire Clay Products Co., 16 S.W.2d 616. (b) The instruction assumes facts in issue. Where controverted facts are assumed to be true in an instruction, it is fatally defective. (4) Defendant's given Instruction 7 is erroneous in that: (a) it is too general; (b) no causal connection is required to be found; (c) it directs that plaintiff should be barred from recovery if he is guilty of "any negligence," and it bars plaintiff's recovery if he is guilty of any negligence "even in part." Such instruction is absolutely erroneous in both Missouri and Illinois. (a) The instruction is erroneous in that it is abstract, it is too broad, and too general. Abstract instructions and those giving a jury a roving commission are prejudicially erroneous. Shide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777; Macklin v. Fogel, 326 Mo. 38, 31 S.W.2d 14; St. Louis, K. & N.W. Railroad Co. v. Knapp, Stout & Co., 160 Mo. 396, 61 S.W. 300; St. Louis, K. & N.W. Railroad Co. v. St. Louis Union Stock Yards Co., 120 Mo. 552, 25 S.W. 399; Chicago G. W. Railroad Co. v. Kemper, 256 Mo. 293, 166 S.W. 291, Ann. Cas. 1915D, 815; Priestly v. Laederich, 2 S.W.2d 631; Jennings v. Cooper, 230 S.W. 325; Lally v. Morris, 26 S.W.2d 52; McCaslin v. Mullins, 17 S.W.2d 684; Quinn v. Berberich, 51 S.W.2d 153; Watts v. Mousette, 85 S.W.2d 487; Southern Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 182, 92 S.W. 475; Met. St. Ry. Co. v. Walsh, 197 Mo. 398, 94 S.W. 860; Gary v. Averill, 321 Mo. 840, 12 S.W.2d 747. (b) The jury is not required to find any causal connection or proximate cause between the alleged negligence and the injury, which renders the instruction fatally defective. (c) This instruction bars recovery if plaintiff is guilty of any negligence even in part. This is not correct under either Missouri or Illinois law, but renders the instruction fatally defective. Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; South Chicago City Ry. Co. v. Kinarre, 96 Ill.App. 215; Loftus v. Ry. Co., 293 Ill. 475; Chicago West Div. Ry. Co. v. Ryan, 131 Ill. 474. (5) Defendant's given Instruction 8 is fatally defective because: (a) it does not require a causal connection to be found between the alleged negligence and the collision; (b) because a failure to stop is not negligence per se, but should be left to the jury; (c) the stop law referred to is not applicable to street railways but only to steam railroads. (a) Where no causal connection or proximate cause is required to be found, such omission renders the instruction fatally defective. (b) The alleged failure of plaintiff to stop at a stop sign is not negligence per se, but should be submitted to the jury. This instruction directed that such negligence as a matter of law barred plaintiff's recovery. It is therefore fatally defective. Lake Shore & Mich. So. Ry. Co. v. Hessions, 150 Ill. Sup. 546; Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. Sup. 596; Nosko v. O'Donnell, 260 Ill.App. 544; Brown v. Ill. Term. Co., 319 Ill. Sup. 326; Chicago City Ry. v. Martensen, 100 Ill.App. 306; Fisher v. Ry. Co., 114 Ill.App. 217; Chicago Union Traction Co. v. Jacobson, 118 Ill.App. 385; Chicago Union Traction Co. v. Jacobson, 217 Ill. 406.

Lashly, Lashly & Miller for respondent.

(1) In Illinois one must approach a railroad crossing with senses alert to the danger, and one cannot recover in a crossing case where he attempts to pass in front of an advancing train. Williams v. Railroad Co., 235 Ill.App. 49; Derges v. C. B. & Q. Ry. Co., 148 Ill.App. 639; Greenwald v. B. & O. Railroad Co., 332 Ill. 627. Except where the defendant is guilty of wantonness and willfulness, plaintiff cannot recover if guilty of contributory negligence and the jury should be directed to find for defendant. Morgan v. N. Y. Central, 327 Ill. 346; Moore v. Ry. Co., 54 S.W.2d 767. One must stop and not attempt to cross in front of an advancing train. Pallante v. Ill. Power Co., 265 Ill.App. 46. There is no humanitarian doctrine in Illinois. N. Chicago St. Ry. Co. v. Liederman, 187 Ill. 463. (2) Defendant's Instruction 5 was a proper instruction. (a) It is perfectly proper to designate as negligence facts which, if found, are as a matter of law negligence. Bagby v. Culbertson, 273 S.W. 209; Oglesby v. Ry. Co., 1 S.W.2d 172; State ex rel. v. Ellison, 223 S.W. 674. (b) It is perfectly proper to draw an instruction which is within the scope of the pleading, but does not incorporate all the matters therein alleged, especially where the pleading contains several allegations of negligence in one paragraph. Meeker v. Union E. L. & P. Co., 216 S.W. 923; State ex rel. v. Ellison, 223 S.W. 671. There may be a departure in words if this does not amount to a departure in substance or theory. Petera v. Ry. Exch. Bldg. Co., 42 S.W.2d 947; Anderson v. Ry. Co., 71 S.W.2d 508. All instructions must be read together and matters specifically set out in one instruction need not be specifically repeated in others. Murphy v. Loeffler, 39 S.W.2d 550; Leach v. Ry. Co., 118 S.W. 510; Jerkowitz v. Kansas City, 77 S.W. 1088; Cook v. Cooksey, 300 S.W. 1034. (c) Evidence to support an instruction may be drawn from the testimony of several witnesses. Root v. Railroad Co., 141 S.W. 610. (d) The fair and natural intendment of the language employed in the instruction should control. State ex rel. v. Ellison, 208 S.W. 443; Barr v. Ry. Co., 37 S.W.2d 927; King v. Ry. Co., 109 S.W. 671. (3) Defendant's Instruction 7 is proper: (a) Because instructions must be read together and when so read in connection with the others to which reference is made, the instruction cannot be deemed abstract. Bales v. K. C. Pub. Serv. Co., 40 S.W.2d 665; Applebee v. Ross, 48 S.W.2d 900; Plater v. Mullins Const. Co., 17 S.W.2d 658; Fowlke v. Fleming, 17 S.W.2d 516. (b) Causal connection is required to be found. Applebee v. Ross, 48 S.W.2d 900. (4) Defendant's Instruction 8 is a proper instruction: (a) Because it does require a finding of proximate cause. Ashby v. Elsberry & N. H. Gravel Road Co., 73 S.W. 229. (b) Because violation of a statute or ordinance is negligence per se. Loveless v. Berberich Delivery Co., 73 S.W.2d 793. (5) Where separate allegations of negligence are each covered by a separate instruction, this does not constitute undue repetition. Kravitz v. Ry. Co., 210 Ill.App. 287; St. Louis K. & N.W. Ry. Co. v. St. Louis Union Stock Yards, 25 S.W. 405.

Bohling, C. Cooley and Westhues. CC., concur.

OPINION

BOHLING

Martha Connole, administratrix of the estate of Louis Di Carlo, deceased, instituted suit against the East St. Louis & Suburban Railway Company, a corporation, for $ 10,000 damages, for the benefit of the widow and two dependent minor children...