Jones v. Kurn
| Decision Date | 26 December 1941 |
| Citation | 157 S.W.2d 797,237 Mo.App. 657 |
| Parties | Daisy E. Jones, Respondent, v. J. M. Kurn and John G. Lonsdale, Trustees of the St. Louis & San Francisco Railway Company, Appellants |
| Court | Missouri Court of Appeals |
Rehearing Denied February 4, 1942.
Appeal from the Circuit Court of Stoddard County; Hon. James V Billings, Judge.
Affirmed.
J W. Jamison and Ward & Reeves for appellants.
(1) The court erred in refusing to give to the jury defendants' Instruction No. B offered at the close of the whole case, which was a peremptory instruction in the nature of a demurrer to the evidence. (a) There was no evidence tending to show that the employees of the defendants knew that there was a piece of steel or iron on the vestibule platform, nor that the piece of steel or iron had been seen by any person prior to the accident, and consequently there was no evidence from which the jury could infer that the employees had actual knowledge of its presence, or by exercising proper precaution should have known that it was there. This was a necessary element to make out plaintiff's case of common-law negligence. Jones v. Railroad, 5 S.W.2d 101; Tevis v. United Ry., 185 S.W. 738; Blankenship v. St. Louis Public Service Co., 71 S.W.2d 723; Vortriede v. St. Louis Public Service Co., 58 S.W.2d 492; Taylor v. Mo. Pac., 311 Mo. 604, 279 S.W. 115; Price v. Transit Co., 125 App. 67; Finn v. Terminal Railroad, 97 S.W.2d 890. (b) This is not a res ipsa loquitur case and no presumption arises in favor of plaintiff, but the burden is upon plaintiff to prove every element of her case, and one of the necessary elements to establish negligence was notice to the employees of the defendants of the alleged defect. Lammert v. Wells, 13 S.W.2d 547; Gardner v. Street Ry., 223 Mo. 389; Orcutt v. Bldg. Co., 201 Mo. 424; Sterritt v. Street Ry., 225 Mo. 99; Peck v. St. Louis Transit Co., 178 Mo. 617; Stolovey v. Fleming, 8 S.W.2d 832; Powell v. St. Joseph Ry., 81 S.W.2d 957; Blankenship v. Public Service Co., supra; Sanders v. City of Carthage, 51 S.W.2d 529; Campbell v. Woolworth, 117 F.2d 152; Williams v. New Jersey Transit Co., 113 F.2d 649; Windham v. Atlantic Coast Line, 71 F.2d 115; Frappier v. Lincoln Stores, 279 Mass. 14, 180 N.E. 522. (c) In a common-law negligence case, even when the rule of highest degree of care applies, there must be some evidence from which jury is authorized to find notice of defect complained of. See authorities under (1) (a), supra; Doyle v. Terminal Railroad, 31 S.W.2d 1010; Finn v. Terminal Railroad, supra. (2) Instruction No. C offered by the defendants should have been given to the jury and the court erred in refusing it. This instruction undertook to withdraw from the jury the charge of negligence contained in the petition as to the projecting piece of iron or steel on the platform of the car. Since there was no evidence upon the question of notice this charge of negligence should have been taken out of the case. See authorities under (1), supra. (3) The court erred in giving plaintiff's Instruction No. 6-P, purporting to cover the whole case, submitting to the jury the question of whether or not the employees of the defendants had knowledge of the alleged defect. There was a total absence of proof upon this point, and consequently the instruction was broader than the proof and submitted a question not authorized by the evidence. This instruction further submitted to the jury whether or not the employees of the defendants "carelessly and negligently left in its platform a piece of steel or iron . . .." There was no evidence upon which to submit the question of whether or not the employees of the defendants had left a piece of steel or iron on the platform. This instruction was erroneous because it failed to submit to the jury the question of whether or not the employees of the defendants knew of the alleged defect a sufficient length of time in which to remedy the defect. This instruction was also erroneous because it refers to the defendant Railway Company and its agents and employees, when according to the pleadings, the railway company was not a defendant and the railway company did not have any agents or employees. See authorities under (1), supra.
M. G. Gresham and R. Kip Briney for respondent.
(1) Assignments of error set out in defendants' motion for a new trial which are not briefed may be treated as having been abandoned. Mason v. Wilks, 288 S.W. 936; Lach v. Buckner, 86 S.W.2d 954; Hart v. Mo. State Life Ins. Co., 79 S.W.2d 793. (2) Defendants' Instruction "A" in the nature of demurrer at the close of plaintiff's case was abandoned by the defendant (appellant) during the trial when the defendants elected to proceed to put on its testimony after the overruling of the defendants' Instruction "A" by the court. (3) Defendants' instructions B and C, which were in the nature of a demurrer, were properly overruled, as in determining whether a case was made for the jury, plaintiff's evidence and all favorable inferences reasonably and legitimately deducible therefrom are taken as true if not manifestly impossible or entirely beyond reason, while defendants' evidence, unless aiding plaintiff's case, is not considered. Jones v. St. Louis-San Francisco Ry. Co., 5 S.W.2d 101; Bramblett v. Harlow, 75 S.W.2d 627; Johnson v. C. & E. I. R. R. Co., 64 S.W.2d 674; Farrell v. Kroger Grocery & Baking Co., 71 S.W.2d 1076. (4) A case shall not be reversed in absence of error materially affecting the merits of the action unless it is prejudicial. A mistake or defect in an instruction, in order to constitute reversible error, must be such as to require the appellate court to believe that it affected the substantial rights of the complaining party. Sec. 1228, R. S. Mo. 1939. (5) Defendants' Instruction C was properly refused as is the duty of the court to submit a question of fact to the jury where the evidence in regard thereto is conflicting. Parrent v. Mobile & Ohio R. R. Co., 70 S.W.2d 1068; Madden v. Red Line Service, 76 S.W.2d 435; Phelps v. Montgomery Ward & Co., 170 S.W.2d 939. (6) Instruction C was properly refused because where the petition contains but one assignment of negligence, a general demurrer to the evidence attaches to that issue, and thus becomes just as specific as a special demurrer directed to that issue would be, and there is no necessity or possibility of singling out or separating issues in a case where there is but one issue. Jones v. St. Louis-San Francisco Ry. Co., supra. (7) All instructions must be read together. Winter v. Metropolitan Life Ins. Co., 129 S.W.2d 99; Haynie v. Jones, 127 S.W.2d 105. (8) The relation of carrier and passenger, requiring a high degree of care, continues until the passenger has alighted from the vehicle, and it obtains with respect to the steps provided for the passenger's exit from the vehicle. Taylor v. Ry. Co., 311 Mo. 604, 279 S.W. 115; Craig v. United Rys. Co. of St. Louis, 158 S.W. 390. (9) Respondents' Instruction 6-P properly declares the law. 13 C. J. S., 1392; 10 C. J., 958; Chartrand v. Southern Ry. Co., 57 Mo.App. 425; Craig v. United Rys. Co. of St. Louis, supra. (10) If there are any defects in respondent's Instruction 6-P, they are cured by appellants' given Instruction No. 3. Sec. 1228, R. S. 1939; Craig v. United Rys. Co. of St. Louis, supra.
This is an action for damages for personal injuries allegedly received by plaintiff, as a result of negligence on the part of defendants. The suit was instituted in the Circuit Court of New Madrid County, April 18, 1938. Thereafter a change of venue was awarded to the Circuit Court of Stoddard County, where it was tried April 26, 1939, resulting in a verdict in favor of plaintiff for $ 1,000. Defendants duly appealed to this court and while the appeal was pending, counsel for plaintiff and defendant filed a written stipulation on this court agreeing that the cause be remanded to the Circuit Court of Stoddard County for a new trial, which was done. On January 8, 1941, the cause was again tried resulting in a verdict in favor of plaintiff for $ 1500, and from this verdict and judgment, this appeal has been perfected.
Plaintiff, in her petition, states among other things, that on September 19, 1937, she became a passenger on one of defendants' passenger trains from Lilbourn to Portageville, Missouri, and that because of the defendants' failure to maintain a safe platform and safe steps from which the plaintiff was to alight and get from the train of the defendants', and by such carelessness, recklessness and negligence of the defendants, the plaintiff was caused to fall from the top of said steps to said steps and to the depot platform; the defendants carelessly and negligently left at the top of its steps and at the edge of its platform, a projecting piece of iron or steel which, 'tho' proceeding with due care for her own safety, she caught the heel of her shoe upon, tearing the said heel from her shoe and directly causing her to fall, as aforesaid; plaintiff further states that while plaintiff was falling down said steps, on said steps and upon the depot platform, the defendants carelessly and negligently failed to have anyone at said steps to catch her in her fall, as aforesaid, and as a result of which she was injured.
Neither demurrer to the petition, nor motion to make more definite and certain, was filed. The answer of defendants admitted they were Trustees of the St. Louis San Francisco Railway Company, but denied generally each and every other allegation in the plaintiff's petition. The answer further pleaded contributory negligence on the part of the plaintiff.
The evidence relating to the issues involved is in substance as...
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