Duncan v. St. Louis Public Service Co.

• Decision Date: 11 November 1946
• Docket Number: 39829
• Citation: 197 S.W.2d 964,355 Mo. 733
• Parties: Martha Duncan, Appellant, v. St. Louis Public Service Company, a Corporation
• Court: Missouri Supreme Court

197 S.W.2d 964

355 Mo. 733

Martha Duncan, Appellant, v. St. Louis Public Service Company, a Corporation

No. 39829

Supreme Court of Missouri

November 11, 1946

Rehearing Denied December 9, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Everett Hullverson for appellant; Orville Richardson of counsel.

(1) The court erred in giving and reading to the jury defendant's Instruction 4 on the burden of proof and defining "preponderance or greater weight of the credible evidence." The third paragraph of this instruction telling the jury that it did not devolve upon the defendant to disprove "said charge" of negligence, and that the burden of proving "said charge" rested upon plaintiff, and that "said charge" must be sustained by the preponderance of the credible evidence was erroneous because: It relieved the defendant of its "burden of evidence," the duty of coming forward with evidence, which had shifted to it after plaintiff had made a prima facie case under the res ipsa doctrine. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; State ex rel. Stein v. Becker, 334 Mo. 749, 67 S.W.2d 755; Hartnett v. May Department Stores Co., 85 S.W.2d 644. (2) It by implication cast a burden of proving specific negligence upon the plaintiff, thus depriving her of legitimate inferences arising from the circumstantial evidence from which the res ipsa doctrine stems. Three times in this paragraph and four times more in other parts of the instruction a burden of proving a "charge" of negligence was erroneously thrust upon plaintiff. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001. (3) The first paragraph of this instruction erroneously told the jury that the "charge" laid by the plaintiff was one of negligence. As indicated, supra, this was erroneous, confusing and misleading. (4) The second paragraph of this instruction defined the term "preponderance or greater weight of the credible evidence" as "evidence which is more convincing to you as worthy of belief than that which is offered in opposition thereto by the defendant." Other parts of the instruction placed the burden upon the plaintiff of proving her case by a preponderance of the credible evidence. This was erroneous, because: It deprived plaintiff of the benefit of the presumption of law and fact arising from her prima facie case under the res ipsa doctrine, and required plaintiff to prove her case by direct "credible" evidence of witnesses to the fact of negligence. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001. (5) It required plaintiff to prove her case by direct evidence of specific negligence. (6) It limited plaintiff to proving her "charge" of negligence by her own evidence and witnesses, and thus deprived her of the benefit of defendant's evidence not in conflict with her theory of recovery. However correct such an instruction may be in a specific negligence case where the evidence of both parties is direct and contradictory, such an instruction is erroneous in a res ipsa case where there is no "charge" of specific negligence and where plaintiff's proof is circumstantial. Barr v. Mo. Pac. R. Co., 37 S.W.2d 927; Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174; Bradley v. Becker, 296 Mo. 548, 246 S.W. 561; Trower v. M.-K.-T.R. Co., 347 Mo. 900, 149 S.W.2d 792. (7) The whole instruction was argumentative, unduly repetitious of plaintiff's burden to prove a "charge" of negligence by credible evidence, confusing, misleading and calculated to impress upon the jury that plaintiff was not entitled to the benefit of any circumstantial evidence or any of defendant's evidence or any inference or presumption of negligence raised by law from the res ipsa fact situation. It was not a clear, concise correct instruction open to only one construction and was erroneously given. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593; Schipper v. Brashear Truck Co. 132 S.W.2d 993; Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30. (8) The court erred in allowing defendant to amend its answer over plaintiff's objection at the end of the trial to set up a plea of contributory negligence. There was no evidence to support the charge that she negligently failed to hold on to supports in the car. The car was stopped and was discharging passengers with the doors open. Plaintiff had just arisen from her seat to permit another passenger to leave when this stopped car was struck from behind. Winters v. Hannibal & St. J.R. Co., 39 Mo. 468; Coudy v. St. L., I.M. & S. Ry. Co., 85 Mo. 79, 83, affirming 13 Mo.App. 588; Payne v. Stott, 181 S.W.2d 161. (9) The court erred in giving Instruction 3 which was more than a mere definition of ordinary care, but in general and without limitation imposed the duty upon plaintiff of exercising ordinary care for her own safety. It was unsupported by the evidence, since there was no evidence that plaintiff failed to exercise due care for her own safety. (10) It was not only general and abstract in nature, but gave the jury an unwarranted, roving commission unconfined to the pleadings and evidence. Carson v. Evans, 351 Mo. 1156, 173 S.W.2d 30; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; Reiling v. Russell, 348 Mo. 279, 153 S.W.2d 6; White v. K.C. Pub. Serv. Co., 347 Mo. 895, 149 S.W.2d 375; Copeland v. Terminal R. Assn., 353 Mo. 433, 182 S.W.2d 600; Burgher v. Niedorp, 50 S.W.2d 174, certiorari quashed in State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422. (11) Although plaintiff's counsel stated that he had no objection to this instruction, he did object to the amendment of the answer on the grounds now raised, and it would have been a mere formality to object again. Moreover, the error is plain, affected substantial rights and resulted in manifest injustice. Therefore, it may be raised on this appeal. Supreme Court Rule 3.27.

Mattingly, Berthold, Jones & Richards and Lloyd E. Boas for respondent.

(1) Appellant's present contention that Instruction 4 "inferentially required plaintiff to prove specific negligence, is argumentative, confusing and misleading," was not presented to or ruled upon by the trial court and therefore not properly presented for review by this court. Appellant is limited to the error pointed out and objected to in the trial court. R.S. 1939, sec. 847; Stokes v. Godefroy Mfg. Co., 85 S.W.2d 434; Spotts v. Spotts, 331 Mo. 942, 55 S.W.2d 977; Rutledge v. Weisenborn, 142 S.W.2d 884; Banty v. City of Sedalia, 120 S.W.2d 59. (2) Instruction 4 properly placed the burden of proof on the plaintiff. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Harke v. Haase, 75 S.W.2d 1001; Hartnett v. May Department Stores, 231 Mo.App. 1116, 85 S.W.2d 644; State v. Davis, 342 Mo. 594, 116 S.W.2d 110; Campbell v. Terminal Railroad Co., 235 Mo.App. 56, 126 S.W.2d 915. (3) Appellant is in no position to complain about the court's action in permitting an amendment pleading contributory negligence for the reason that her objection to an instruction submitting that issue was sustained and the instruction refused. Clift v. St. Louis-S.F.R. Co., 9 S.W.2d 972. (4) Appellant specifically advised the trial court that he had no objection to Instruction 3 and thereby waived any right to object to said instruction for the first time in this court. Code Civil Procedure 105 (a), 122, 140 (a); Supreme Code, Rule 3.21; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950. (5) Instructions 1 and 4, when construed together, properly declared the law of the case. Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384; Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467.

OPINION

Clark, J.

Plaintiff's petition prayed damages in the sum of $ 15,000.00 alleged to be due to defendant's negligence. Verdict and judgment were for defendant and plaintiff has appealed.

Plaintiff's evidence was to the effect that defendant is an operator of a street railway system as a common carrier of passengers for hire. That, on the date of the alleged injury, plaintiff was a passenger on one of defendant's cars which had stopped at a street intersection to receive and discharge passengers. That it was necessary for plaintiff to arise and stand in the aisle to permit another passenger to get out from the inside of the seat where she had been sitting. That another car of defendant suddenly collided with the rear end of the car in which she was standing, throwing her down and injuring her.

Defendant's evidence tended to show that the collision caused only a slight jar to the car on which plaintiff was and neither car was damaged. The operator of the car did not see or hear of any one being thrown to the floor and after inquiry received no complaint of injury to any passenger. Defendant also offered medical testimony tending to show that plaintiff's condition was not due to injuries, but to a pre-existing cause.

After the close of the evidence the court permitted defendant, over the objection of plaintiff, to amend the answer to charge plaintiff with contributory negligence.

At plaintiff's request the court gave instructions as follows: No. 1 to the effect that defendant, as a common carrier of passengers for hire, was under the duty to exercise the highest degree of care and a failure to do so would constitute negligence as used in the instructions; that if they found from the evidence that there was a collision and plaintiff was injured thereby that such facts are sufficient circumstantial evidence to warrant a finding that defendant was negligent, etc. No. 5 on the measure of damages.

For defendant, the court gave instructions: No. 2 on the credibility of witnesses; No. 3 that it was the duty of plaintiff to exercise ordinary care for her own safety, and No. 4 which we set out in full as follows:

"The Court instructs the jury that the charge laid by the plaintiff agains...