Dove v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 01 July 1942
• Docket Number: 37654
• Citation: 163 S.W.2d 548,349 Mo. 798
• Parties: William Dove, Eugene Dove, Opal Dove, Aldine Britt, Aline Britt and Herbert Britt, Minors, by their guardian, James O. Kenton, v. Atchison, Topeka & Santa Fe Railway Company, a Corporation, J. E. Newell and B. W. Clark, Appellants
• Court: Missouri Supreme Court

163 S.W.2d 548

349 Mo. 798

William Dove, Eugene Dove, Opal Dove, Aldine Britt, Aline Britt and Herbert Britt, Minors, by their guardian, James O. Kenton, v. Atchison, Topeka & Santa Fe Railway Company, a Corporation, J. E. Newell and B. W. Clark, Appellants

No. 37654

Supreme Court of Missouri

July 1, 1942

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge.

Reversed and remanded (with directions).

Cyrus Crane, Geo. J. Mersereau, John H. Lathrop, John N. Monteith Dean Wood and James F. Walsh for appellants.

(1) On the record in this case, plaintiffs are not entitled to recover, since the deceased, Velma Britt, was guilty of contributory negligence as a matter of law. This being so the case should not have been submitted to the jury and errors, if any, in giving or refusing instructions cannot prejudice the plaintiffs who have no case. Lappin v. Prebe, 346 Mo. 68, 131 S.W.2d 511; Seago v. N. Y. Central R. Co., 155 S.W.2d 126. (2) Under the decisions, this is a clear case of contributory negligence on the part of the deceased, and even the jury found for the defendants. State ex rel. McClay v. Cox, 320 Mo. 1218, 10 S.W.2d 940; Boyd v. Railroad, 105 Mo. 371, 16 S.W. 909; State ex rel. Hines v. Blank, 237 S.W. 1018; Pope v. Railroad, 242 Mo. 232, 146 S.W. 790; Kinlen v. Railroad, 216 Mo. 164, 115 S.W. 523; Schmidt v. Railroad, 191 Mo. 215, 90 S.W. 136; Huggart v. Mo. Pac. Ry. Co., 134 Mo. 673, 36 S.W. 220; Carlson v. A., T. & S. F. Ry. Co., 187 S.W. 842; Laun v. Railroad, 216 Mo. 563, 116 S.W. 553; Reeves v. Railway Co., 251 Mo. 169, 158 S.W. 2; Green v. Mo. Pac. Ry. Co., 192 Mo. 131, 90 S.W. 805; Stotler v. Railroad, 204 Mo. 619, 103 S.W. 1. (3) It cannot be inferred that deceased on the crossing was enveloped in a cloud of dust and smoke that prevented her from seeing the approaching train, and inference cannot be piled upon inference. Lappin v. Prebe, 346 Mo. 68; 131 S.W.2d 511; Williams v. Kansas City So. Ry. Co., 257 Mo. 87, 165 S.W. 788. (4) If deceased's vision was temporarily obstructed by dust and smoke, then she should have waited until it cleared away; and in going blindly upon the track she was guilty of contributory negligence. Scott v. Kurn, 126 S.W.2d 185, 343 Mo. 1210; Rischeck v. Lowden, 147 S.W.2d 650; Henderson v. St. Louis-S. F. Ry. Co., 284 S.W. 788, 314 Mo. 414. (5) The case should not have been submitted to the jury at all since deceased was guilty of contributory negligence as a matter of law. If this court should not agree with us, then, since the trial court assigned no reason for sustaining plaintiffs' motion for a new trial, the burden is on the respondents to demonstrate that there were legal grounds and prejudicial errors assigned in plaintiffs' motion for new trial, which justified the trial court's action. No such grounds or errors in fact exist. Sec. 1169, R. S. 1939; King, Trustees, v. Kansas City Life Insurance Co., 164 S.W.2d 458.

C. W. Prince, E. H. Gamble and Wm. R. Ross for respondents.

(1) No evidence introduced by defendants can convict deceased of contributory negligence as a matter of law. She can be so convicted only upon evidence introduced by plaintiffs themselves. Gannon v. Gaslight Co., 145 Mo. 502, 46 S.W. 968; Flannagan v. R. Co., 297 S.W. 463; Nicholson v. R. Co., 297 S.W. 996; Toeneboehn v. R. Co., 317 Mo. 1096, 298 S.W. 795; Dobson v. R. Co., 10 S.W.2d 528; Clark v. Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Mundy v. R. Co., 45 S.W.2d 941; Perkins v. R. Co., 329 Mo. 1190, 49 S.W.2d 103; Hollister v. Aloe Co., 156 S.W.2d 606. (2) Plaintiffs' evidence did not convict deceased of contributory negligence as a matter of law, and any error in defendants' instructions is available to justify the order for new trial. By the Supreme Court: Keim v. R. Co., 90 Mo. 314, 2 S.W. 427; O'Connor v. R. Co., 94 Mo. 150, 7 S.W. 106; Kenney v. R. Co., 105 Mo. 270, 15 S.W. 983; Baker v. R. Co., 122 Mo. 533, 26 S.W. 20; Lamb v. R. Co., 147 Mo. 171, 48 S.W. 659; Weller v. R. Co., 164 Mo. 180, 64 S.W. 141; Jackson v. R. Co., 189 S.W. 381; Jones v. R. Co., 220 S.W. 484; State ex rel. R. Co. v. Reynolds, 286 Mo. 204, 226 S.W. 564; Toeneboehn v. R. Co., 317 Mo. 1096, 298 S.W. 795; Jordan v. R. Co., 38 S.W.2d 1042; Perkins v. R. Co., 329 Mo. 1190, 49 S.W.2d 103; Simpson v. R. Co., 334 Mo. 1126, 70 S.W.2d 904; Rucker v. R. Co., 343 Mo. 929, 123 S.W.2d 24; Wolf v. R. Co., 148 S.W.2d 1032. By the Kansas City Court of Appeals: Covell v. R. Co., 82 Mo.App. 180; Gengelbach v. Payne, 236 S.W. 1092; Smith v. R. Co., 282 S.W. 62; Stout v. K. C. Pub. Serv. Co., 17 S.W.2d 363; Elliott v. R. Co., 52 S.W.2d 448. By the St. Louis Court: Moore v. R. Co., 157 Mo.App. 53, 137 S.W. 5; Rollinson v. Lusk, 217 S.W. 328; Malone v. R. Co., 285 S.W. 123; Sisk v. R. Co., 67 S.W.2d 830. By the Springfield Court: Roques v. R. Co., 264 S.W. 474; Pierson v. R. Co., 275 S.W. 561; Flannagan v. R. Co., 297 S.W. 463; Nicholson v. R. Co., 297 S.W. 996; Dobson v. R. Co., 10 S.W.2d 528; Mundy v. R. Co., 45 S.W.2d 941. (3) Whether deceased was negligent in not waiting for the cloud of smoke and dust to clear away before attempting to cross the track is a jury question. Lamb v. R. Co., 147 Mo. 171, 48 S.W. 659; Dove v. R. Co., 140 S.W.2d 715. (4) The trial court erred in giving defendants' Instruction C because: (a) It placed upon plaintiffs undue burdens of proof. Clark v. Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Barr v. R. Co., 37 S.W.2d 927; Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W.2d 471; Thompson v. R. Co., 334 Mo. 958, 69 S.W.2d 936; Hough v. R. Co., 339 Mo. 1169, 100 S.W.2d 499; Pearrow v. Thompson, 343 Mo. 490, 121 S.W.2d 811; Rucker v. R. Co., 343 Mo. 929, 123 S.W.2d 24. (b) Defendants by their answers admitted that the train exceeded the ordinance speed limit, yet Instruction C erroneously required us to prove it by a preponderance of the evidence. Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 673; Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W.2d 471; Brewer v. Silverstein, 64 S.W.2d 289; Hough v. R. Co., 100 S.W.2d 499; Pearrow v. Thompson, 121 S.W.2d 811. (c) Defendants' Instruction C is not cured of error by the clause purporting to explain what defendants mean by the expression "plaintiffs' case" and by "every essential element," as used in said instruction. Steger v. Meehan, 63 S.W.2d 109; Hough v. R. Co., 100 S.W.2d 499; State ex rel. Grisham v. Allen, 124 S.W.2d 1080; Stanich v. Western Union, 153 S.W.2d 54. (5) Inclusion of the words "this case" in cautionary Instruction E and the words "in this law suit" in cautionary Instruction J was error. Even if not, the allowance of said instructions was discretionary, and where discretionary instructions have been given the trial court cannot on appeal be convicted of error for granting a new trial. As to Instruction E: Unterlachner v. Wells, 278 S.W. 79; Wolfson v. Cohen, 55 S.W.2d 677. As to Instruction J: Unterlachner v. Wells, 278 S.W. 79; Lewis v. K. C. Pub. Serv. Co., 17 S.W.2d 359. (6) The court erred in giving defendants' Instruction D, which told the jury that the mere fact that deceased was killed by the train did not alone entitle plaintiffs to a verdict, as a "singling" and "segregating" or "commentative" instruction, which is not allowable. "Constructing and Reviewing Instructions," Trusty 117, sec. 26(b); Barr v. Kansas City, 105 Mo. 550, 16 S.W. 483; Littig v. Heating Co., 237 S.W. 779; Biskup v. Hoffman, 287 S.W. 865; Bohn v. City, 124 S.W.2d 649. (7) Defendants Instruction F, stating in the abstract that failure of deceased to exercise ordinary care for her own safety would be contributory negligence, without setting forth the facts which would constitute such failure, was erroneous as being a roving commission to the jury. Authorities, see Point (4) c. (8) Defendants' Instruction G is erroneous in that it bars recovery by contrbiutory negligence if deceased failed to look and listen and such failure contributed to her injury "in any degree." Bobos v. Krey, etc., Co., 317 Mo. 108, 296 S.W. 157; Hires v. Letts, etc., Co., 296 S.W. 408; Perkins v. R. Co., 329 Mo. 1190, 49 S.W.2d 103; Cento v. Security, etc., Co., 99 S.W.2d 1; King v. Rieth, 341 Mo. 467, 108 S.W.2d 1. (9) The trial court erred in giving defendants' Instruction H to the effect that it was the duty of deceased as a matter of law to keep off the crossing until the atmosphere had cleared. Authorities, see Points (2) and (3). (10) Instruction I is purely abstract. As no abstract instruction should be given in any case, the trial court was entitled by reason thereof to grant a new trial and cannot be reversed on appeal for so doing. Wilsch v. Gleiforst, 259 S.W. 850; Humphreys v. R. Co., 83 S.W.2d 586; King v. Rieth, 341 Mo. 467, 108 S.W.2d 1; Jeck v. O'Meara, 122 S.W.2d 897, l. c. 904; Lewis v. R. Co., 17 S.W.2d 359; Schipper v. Brashear Truck Co., 132 S.W.2d 993.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for $ 10,000.00 damages for wrongful death, brought by the children of Velma Britt, who was killed by defendants' train on a public street crossing in the city of Hardin. The jury found for defendants, but the trial court sustained plaintiffs' motion for new trial. Defendants have appealed from the order granting a new trial.

The trial court stated no reason for its action in its order granting a new trial; so plaintiffs must assume the burden of showing prejudicial error which would warrant a reversal on appeal if judgment had been entered on the verdict. [See King v. Kansas City Life Insurance Co., Banc, May Term, 1942, 164 S.W.2d 458.] They attempt to sustain this burden by claiming error in defendants' instructions. Defendants, however, say that plaintiffs failed to make a jury case because deceased was guilty of contributory negligence as a matter of law, and,...