Dempsey v. Horton
| Decision Date | 11 July 1935 |
| Docket Number | No. 32902.,32902. |
| Citation | 84 S.W.2d 621 |
| Parties | JOSEPH DEMPSEY, Appellant, v. G.M. HORTON and WESTERN UNION TELEGRAPH COMPANY, a Corporation. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Charles W. Rutledge, Judge.
REVERSED AND REMANDED (with directions).
Berthold & Chase for appellant.
(1) Where there is no substantial evidence to support a judgment appellate courts will reverse the judgment. When the testimony respecting a material issue of fact is wholly at variance with the physical facts, or is in derogation of the immutable laws of physics, or is inherently unbelievable and impossible so that the inferences deducible therefrom are so opposed to all reasonable probability as to be manifestly false, the court will not be obliged to accord any credence or weight thereto. Defendant's testimony must be treated as wholly barren of evidentiary value and rejected as unworthy of consideration. Vacarro v. Pevely Dairy Co., 22 S.W. (2d) 859; Schupback v. Meshevsky, 300 S.W. 465; Kibble v. Railroad Co., 285 Mo. 603, 227 S.W. 42; Thompson v. Lamar, 17 S.W. (2d) 960; Maurizi v. Western Coal & Mining Co., 11 S.W. (2d) 268; Kiefer v. St. Joseph, 243 S.W. 104; McHatton v. K.C. Rys. Co., 246 S.W. 651; Sexton v. Met. St. Ry. Co., 149 S.W. 25; Champagne v. Hamey, 189 Mo. 726, 88 S.W. 97; Hook v. Ry. Co., 63 S.W. 362; Kelsey v. Railroad Co., 30 S.W. 343; Nugent v. Kauffman Milling Co., 33 S.W. 431; Hayden v. Railroad Co., 28 S.W. 75; Spiro v. St. Louis Transit Co., 76 S.W. 689; Roseman v. United Rys. Co., 251 S.W. 106. (2) Instruction 4, given for defendant, is erroneous, for the reason that there is no provision in it excepting the humanitarian doctrine from its application. Lafont v. Bryant, 60 S.W. (2d) 415. (a) Instruction 4, omitting necessary elements in the submission of their defense, the error is not cured by instructions for plaintiff correctly stating the law or supplying the omission. The instructions are conflicting and confusing to a jury, and there is no way of determining by which instruction the jury was guided. Schneider v. Hawks, 211 S.W. 682; Wasson v. Sedalia, 236 S.W. 399; State ex rel. v. Ellison, 272 Mo. 571, 199 S.W. 984; Traylor v. White, 185 Mo. App. 325, 170 S.W. 412. (b) It unnecessarily emphasizes the burden of proof and prejudices the rights of plaintiff and prevented a fair, impartial determination of the case. Mitchell v. Dyer, 57 S.W. (2d) 1083. (c) Instruction on preponderance of evidence, held erroneous, as ignoring that plaintiff was entitled to evidence offered by defendant, favorable to plaintiff's case. Barr v. Railroad Co., 37 S.W. (2d) 930; Chaar v. McLoon, 263 S.W. 177. (d) Instruction placing burden on plaintiff to prove negligence, without stating that defendant had burden to prove contributory negligence alleged in answer, held erroneous. Tappmeyer v. Ryckoff, 45 S.W. (2d) 891; Kenney v. Hoerr, 23 S.W. (2d) 99. (e) It is error to give conflicting instructions requested by different parties. Crone v. United Rys. Co., 236 S.W. 654. (f) An instruction which refers the jury to the pleadings is erroneous. Gorman v. St. Louis Merchants Bridge Term, 28 S.W. (2d) 1025. (3) Whether failure to sound gong was proximate cause of collision held question for jury. Riggle v. Wells, 287 S.W. 805; Peterson v. Ry. Co., 270 Mo. 75, 192 S.W. 938; Wood v. Wells, 270 S.W. 334. (4) The court committed reversible error in admission of testimony which invaded province of jury. Where testimony at time of trial differed from that given in a deposition, jury was at liberty to accept that given at trial rather than that given in deposition. Pettitt v. Kansas City, 267 S.W. 954; Cravens v. Hunter, 87 Mo. App. 456; Guthrel v. Slater, 153 Mo. App. 214, 132 S.W. 274; Bond v. Railroad Co., 110 Mo. App. 131, 84 S.W. 124; Bobbitt v. United Rys. Co., 169 Mo. App. 424, 153 S.W. 70; Guilvezan v. Roumanian Societies, 287 S.W. 789; Lambert v. Wells, 264 S.W. 37; Davidson v. Railroad Co., 301 Mo. 79, 256 S.W. 169; Smiley v. Kinney, 262 S.W. 349; Steele v. Railroad Co., 302 Mo. 207, 257 S.W. 756; Sugarwater v. Fleming, 293 S.W. 111.
Green, Henry & Remmers for respondents.
(1) The court will not declare sworn testimony as impossible and untrue except that it be so clear and irrefutable that no room is left for the entertainment by reasonable minds of any other conclusion. Schupback v. Meshevsky, 300 S.W. 467. The testimony that the accident happened in the way defendant testified was not so unreasonable that reasonable minds might not believe it. Young v. Wheelock, 64 S.W. (2d) 950. (2) Instruction 4, as to the burden of proof, was proper as declared by the Supreme Court. The trial court was not in error in following the decisions of the Supreme Court in connection therewith. Denkman v. Prudential Fixture Co., 289 S.W. 591; Taggert v. Masserang Drug Co., 14 S.W. (2d) 453. (3) The court properly refused plaintiff's Instruction A on the failure to sound a warning. (a) For plaintiff was not entitled to go to the jury on said assignment, as he was guilty of contributory negligence as a matter of law. Young v. Public Serv. Co., 57 S.W. (2d) 717; Davies v. People's Ry., 159 Mo. 1; Brockschmidt v. Ry. Co., 205 Mo. 435. (b) The matters contained in said instruction were not pleaded or proven. Wolfson v. Cohen, 55 S.W. (2d) 677. (c) The jury were sufficiently instructed as to the failure to warn in plaintiff's main instruction. Wolfson v. Cohen, 55 S.W. (2d) 677. (d) The instruction was not in proper form. (4) The admission of immaterial evidence in the cross-examination of plaintiff cannot be said to have prejudiced plaintiff's case, especially when the ground of the objection was not specified. Home Exchange Bank v. Cook, 32 S.W. (2d) 90.
Plaintiff instituted suit against defendants for $25,000 damages arising out of personal injuries to plaintiff occasioned by alleged negligent operation of an automobile by defendant Horton. Verdict and judgment for defendants, and plaintiff appealed.
Plaintiff makes no issue as to the justness of the verdict for defendant Western Union Telegraph Corporation, and "defendant," as used herein, refers to G.M. Horton.
Lester Dempsey, plaintiff's son, was driving plaintiff's automobile on Canter Way drive when the left rear axle broke. The record discloses that Canter Way drive is an east and west highway, approximately thirty-five feet wide with a hard-surfaced pavement of from eighteen to twenty feet wide at the place in question. He parked the car, facing west, on the north side of the highway, with a part of the left side of the car on the pavement and the balance on the dirt shoulder. He informed plaintiff of the occurrence and on the evening of May 26, 1931, while it was still light, plaintiff, his son and George McGuirk went to where plaintiff's automobile was parked in Lester Dempsey's automobile. Lester Dempsey traveling east, drove his automobile in back of plaintiff's automobile and, headed east, parked a distance, estimated from six to fifty feet, east of plaintiff's automobile. Plaintiff then went to his automobile and, according to his testimony, was waiting for his son to bring him a jack to work on the car. According to plaintiff's testimony he had been standing at or against the left back fender of his automobile for about five minutes, looking west, when he was struck by defendant's automobile; and had a short piece of a two by four about two or two and a half feet long laying on the back fender, with his arm resting on it. He also testified that there was no warning given by any approaching automobile before he was struck. Witness McGuirk, plaintiff's only eyewitness, testified he was on the south running board of the son's car, saw defendant's car approaching and waited for it to pass before going to plaintiff's automobile; that he turned his head and saw the rear fender of defendant's car come in contact with plaintiff, who was standing at the back of his automobile. Defendant G.M. Horton had been with some friends at the Midland Valley Country Club, a short distance east of where plaintiff's automobile was parked, and, leaving the club with Mr. Kelly and Mr. Forita, was proceeding west on Canter Way drive. According to Mr. Horton's testimony (substantiated by defendant's witnesses), he noticed a car parked on his right, and as he was nearing it a car coming from the west cut across in front of his and in back of the parked car and came to a stop. He testified that about that time he first saw plaintiff, who was working around the back wheel of his automobile; that just as he reached the scene of the accident, plaintiff, who had been leaning over, raised up, holding a scantling about five or six feet long, and took a step or two backwards; that, as plaintiff straightened up, he, defendant, swerved his car as much as he could but was unable to miss the scantling, which struck the window frame of the car; and that plaintiff's body did not come in contact with defendant's automobile. Plaintiff was thrown to the pavement and injured.
Plaintiff's case was submitted to the jury under the humanitarian doctrine on the ability of defendant to have warned plaintiff, or to have stopped his automobile, or to have changed and diverted its course.
[1] Plaintiff alleges error in the giving of Instruction No. 4. This instruction, in every material respect, was a duplicate of the instruction set forth and held reversible error in Aly v. Terminal Railroad Assn., 336 Mo. 340, 78 S.W. (2d) 851, 854(6), and concluded: "If, therefore, you find the evidence touching the charge of negligence against the defendant to be evenly balanced, or the truth as to the charge of negligence against defendant remains in doubt in your minds, after fairly considering the evidence, your verdict must be for the defendants." Speaking of the quoted portion of the instruction, the Aly case states: ...
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