Jants v. St. Louis Public Service Co.

• Citation: 204 S.W.2d 698,356 Mo. 985
• Decision Date: 08 September 1947
• Docket Number: 40017
• Parties: Merle Lucille Jants, Appellant, v. St. Louis Public Service Company, a Corporation
• Court: United States State Supreme Court of Missouri

204 S.W.2d 698

356 Mo. 985

Merle Lucille Jants, Appellant, v. St. Louis Public Service Company, a Corporation

No. 40017

Supreme Court of Missouri

September 8, 1947

Motion for Rehearing or to Transfer to Banc Overruled October 13 1947.

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Affirmed.

Lloyd Boas and Vernon Riehl for appellant Orville Richardson of counsel.

(1) The court erred in giving defendant's sole cause Instruction 3. Although there was evidence that the deceased's excessive speed, as submitted in this instruction, was a contributing cause of his death, there was no substantial evidence that this was the sole cause of the collision. Defendant's own evidence showed that its neglect of duty at least concurred in bringing about the collision. Therefore, this instruction was not supported by substantial evidence. Seago v. New York Central R. Co., 349 Mo. 1249, 164 S.W.2d 336; Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Collins v. Leahy, 344 Mo. 250, 125 S.W.2d 874; Crews v. K.C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Fassi v. Schuler, 349 Mo. 160, 159 S.W.2d 774. (2) Although this instruction submitted the deceased's excessive speed as the sole cause of the collision, it did not hypothesize sufficient facts to negative every essential element of defendant's duty under the humanitarian doctrine and to demonstrate that its negliegence was not a concurring cause of the collision. It contained no reference to what the motorman could have done after the deceased entered a position of discoverable peril. Bootee v. K.C. Public Serv. Co., 353 Mo. 716, 183 S.W.2d 892; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; McGrath v. Myers, 341 Mo. 412, 107 S.W.2d 792. (3) The converse conjunctive clause submitting whether the collision was caused by the negligence of defendant under the humanitarian doctrine did not submit whether defendant was negligent, and was insufficient to "cure" the error demonstrated. Connole v. East St. Louis & S. Ry. Co., 340 Mo. 690, 102 S.W.2d 581; Bootee v. K.C. Public Serv. Co., 353 Mo. 716, 183 S.W.2d 892; Lewis v. Zagatta, 350 Mo. 446, 166 S.W.2d 541; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853. (4) This instruction unduly limited the zone of peril to the actual path of the streetcar, referring to the conduct of the deceased in driving onto the tracks when it was so near that he should have known a collision was likely to occur. Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809; Collins v. Beckman, 79 S.W.2d 1052; Prater v. Rausch, 344 Mo. 888, 129 S.W.2d 910. (5) Since excessive speed could not be the sole cause of the collision, this instruction, failing to hypothesize a true sole cause situation, erroneously injected contributory negligence into the plaintiff's humanitarian case. Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161. (6) This instruction was misleading, confusing and ambiguous in leading the jury to believe that even though the motorman might have been guilty of secondary negligence under the humanitarian doctrine, the antecedent speed of the deceased might become an intervening cause of the collision so as to absolve defendant of liability. Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161. (7) This instruction erroneously imposed upon the deceased the duty of exercising the highest degree of care, whereas a motorcyclist is required to exercise only ordinary care. Oesterreicher v. Grupp, 119 S.W.2d 307; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60. (8) The court erred in giving defendant's converse Instruction 3. Converse instructions must, like any other instruction, submit facts. Lewis v. Zagatta, 350 Mo. 446, 166 S.W.2d 541; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562. (9) An instruction not sustained by the evidence invites a verdict based upon conjecture or speculation and is erroneous. Seago v. New York Central R. Co., 349 Mo. 1249, 164 S.W.2d 336; Miller v. Williams, 76 S.W.2d 355; Larey v. M.-K.-T.R. Co., 333 Mo. 949, 64 S.W.2d 681; Kimberling v. Wabash Ry. Co., 337 Mo. 702, 83 S.W.2d 736; Copeland v. Terminal R. Assn. of St. Louis, 353 Mo. 433, 182 S.W.2d 600; Shelton v. Thompson, 353 Mo. 964, 185 S.W.2d 777. (10) Such an instruction is erroneous since the defendant's evidence showed that the motorman could have seen the plaintiff before he actually did. Jones v. Chicago, R.I. & P. Ry. Co., 341 Mo. 640, 108 S.W.2d 94; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60. (11) It is error to narrow the zone of peril by confining defendant's liability to what it did after peril was actually discovered. McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33. (12) It is error to confine the motorman's duty to acting after the plaintiff reaches the path of the streetcar. Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Shumate v. Wells, 320 Mo. 536, 9 S.W.2d 632; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60. (13) The court erred in refusing to permit the plaintiff in cross-examination of the witness, George Stoops, to lay a foundation for his impeachment, and to show his feeling, bias and hostility against the deceased by stating to others that he knew the motorman and was going to do what he could to show that the motorman was not at fault. The interest, friendly feelings or relations to the parties is never irrelevant or collateral, and wide latitude should be allowed cross-examination for this purpose. State ex rel. Natl. Ammonia Co. v. Daues, 320 Mo. 1234, 10 S.W.2d 931; State v. Johnson, 349 Mo. 910, 163 S.W.2d 780; Gordon v. K.C. Southern Ry. Co., 222 Mo. 516, 121 S.W. 80; Gurley v. St. Louis Transit Co., 259 S.W. 895. (14) The propriety of the court's ruling is a matter of law and not one of discretion. State v. Rose, 339 Mo. 317, 96 S.W.2d 498; Kingston v. Roberts, 175 Mo.App. 69, 157 S.W. 1042; Rogers v. St. Avit, 60 S.W.2d 698. (15) Nor is the cross-examiner bound by the answer. He may lay a foundation for impeachment by other witnesses. State v. Day, 339 Mo. 74, 95 S.W.2d 1183; State v. Pruett, 144 Mo. 92, 45 S.W. 1114; Magill v. Boatmen's Bank, 250 S.W. 41; Sennert v. McKay, 56 S.W.2d 105. (16) Extra-judicial statements made by the witness and showing his interest, bias, friendly relations or feelings are not hearsay as the trial judge ruled in the case at bar, but are admissible in evidence. State v. Day, supra; State v. Mulhall, 199 Mo. 202, 97 S.W. 583; State v. Horton, 247 Mo. 657, 153 S.W. 1051; Sennert v. McKay, supra; Massman v. Muehlebach, 231 Mo.App. 72, 95 S.W.2d 808.

Fordyce, White, Mayne, Williams & Hartman and F. W. Schwarz for respondent.

(1) Defendant's sole cause instruction requiring the jury to find in the conjunctive that the collision was not caused by any negligence on the part of defendant, any question as to the sole cause negligence of plaintiff's decedent becomes moot. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461. (2) Defendant's sole cause instruction having specifically referred to the question of defendant's negligence, as submitted in other instructions, sufficiently hypothesized the facts making up defendant's alleged negligence. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Schlemmer v. McGee, 185 S.W.2d 806. (3) The wording of defendant's sole cause instruction in hypothetically stating that the collision was not "caused by or due to" defendant's negligence was in proper form. Kimbrough v Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467; Jurgens v. Thompson, 350 Mo. 914, 169 S.W.2d 353; Schlemmer v. McGee, 185 S.W.2d 806. (4) Defendant's sole cause instruction did not limit the zone of peril under the humanitarian doctrine, all reference to conduct of plaintiff's decedent being made as to his sole cause negligence; for issue of zone of peril and defendant's conduct in connection therewith the jury were referred to the other instructions, which, of course, included plaintiff's main instruction on humanitarian doctrine negligence. See cases under (3). (5) There being sufficient evidence upon which to base a sole cause instruction bottomed on negligence of plaintiff's decedent question of contributory negligence was not injected into case; but in any event, the jury being required to find defendant not negligent, sole cause negligence becomes surplusage. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, and cases under points (1) and (2). (6) Under defendant's sole cause instruction the jury was not permitted to find in favor of defendant unless they found defendant free from any and all humanitarian doctrine negligence as covered in plaintiff's instruction submitting that issue to the jury; any supposed antecedent negligence on the part of plaintiff's decedent did not qualify defendant's duty; the instruction was bottomed on sole cause negligence not antecedent negligence. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461. (7) A motorcycle is a motor vehicle as defined in the Motor Vehicle Act in the statutes of the State of Missouri; as such the operator of a motorcycle is required to exercise the highest degree of care in the operation thereof. Secs. 8367, 8377 (a), (c), 8380 (a.4), 8386 (...