Koebel v. Tieman Coal & Material Co.

• Decision Date: 30 July 1935
• Citation: 85 S.W.2d 519,337 Mo. 561
• Parties: Harvey Koebel, an Infant, by Otto Paul Koebel, His Next Friend, Appellant, v. Tieman Coal & Material Company, a Corporation
• Court: Missouri Supreme Court

85 S.W.2d 519

337 Mo. 561

Harvey Koebel, an Infant, by Otto Paul Koebel, His Next Friend, Appellant, v. Tieman Coal & Material Company, a Corporation

Supreme Court of Missouri

July 30, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Reversed and remanded.

Eagleton Waechter & Yost and Roberts P. Elam for appellant.

(1) The giving of Instruction 6, at defendant's request, placed upon plaintiff the burden of proving his case by such a preponderance of the evidence as to remove any doubt in the minds of the jury.Such instruction cast upon plaintiff a much greater burden than the law requires, and constituted reversible error.Sheehan v. Terminal Railroad Assn.,336 Mo. 709;Aly v. Terminal Railroad Assn.,78 S.W.2d 851;Payne v. Reed,332 Mo 343, 59 S.W.2d 43;Williams v. Watson,34 Mo. 95;Bauer Grocery Co. v. Sanders,74 Mo.App. 657;Lumsden v. Howard,210 Mo.App. 645, 236 S.W. 420;Rothschild v. Am. Cent. Ins. Co.,62 Mo. 356;Thompson Lbr. Co. v. Interstate Commerce Comm.,193 F. 682;23 C. J., p. 12, sec. 1745;64 C. J., p. 710, sec 619;Collins v. Beckman,79 S.W.2d 1052.(2) The giving of Instruction 5, at defendant's request, precluded the jury from considering the nature, character and extent of plaintiff's injuries, if any, in any regard or respect, in arriving at a determination of the issue of negligence.This instruction was erroneous because such facts are proper to be considered by the jury in determining that issue.Stolovey v. Fleming,320 Mo. 945, 8 S.W.2d 832;Ryan v. Burrow,33 S.W.2d 928;Wolfson v. Cohen,55 S.W.2d 677.(3) The giving and reading of instructions 5, 6, 7, 8, and 9, and each of them, constituted reversible error because: (a) When read together, these instructions were repetitious, misleading, confusing, conflicting and calculated to mislead, rather than enlighten, the jury.Cases under Point 2, supra;Unterlachner v. Wells,278 S.W. 79.(b) Instruction 9 injected a totally false and foreign issue into the case, thereby misleading and confusing the jury.Schulz v. Smercina,318 Mo. 486, 1 S.W.2d 113;Silliman v. Munger Laundry Co.,44 S.W.2d 159;Gray v. Columbia Terminals Co., 52 S.W.2d 809.

Taylor, Chasnoff & Willson and James V. Frank for respondent.

(1) At the time of the trial of the case at bar Instruction 6 was an approved instruction.It was not reversible error to give it.Denkman v. Prudential Fixture Co.,289 S.W. 591;Taggart v. Maserang Drug Co.,223 Mo.App. 292, 14 S.W.2d 453;Shepard v. Schaff,241 S.W. 431;Harrison v. Bence,270 S.W. 363;Hicks v. Vieths,46 S.W.2d 604.This court has the right to declare that its decision in overruling the Denkman case and other similar cases is to be given prospective effect only.Great Northern Ry. Co. v. Sunburst Oil & Refining Co.,287 U.S. 358, 77 L.Ed. 360, 53 S.Ct. 145.Prospective effect only has been given by this court in certain matters involving statutes and property rights.State ex rel. May Department Stores Co. v. Haid,327 Mo. 567, 38 S.W.2d 44;Kloche v. Kloche,276 Mo. 572, 208 S.W. 525.For all practical purposes the latest controlling decision of the highest tribunal of a state constitutes the case law of that state.29 Harv. L. Rev. 80.Where a court expresses its intention in overruling a previous decision to apply the new rule prospectively only it should do so. 15 C. J. 943;Peo. v. Ryan,152 Cal. 364, 92 P. 853.Instruction 6 had no bearing upon the determination by the jury that the truck did not strike the bicycle.(2) There was no error in the giving of Instruction 5.Stolovey v. Fleming,320 Mo. 946, 8 S.W.2d 832;Wolfson v. Cohen,55 S.W.2d 677.(3) There was no error in the giving of instructions 7, 8 and 9.Cautionary instructions are within the wise discretion of the trial court.Derrington v. Ry. Co.,328 Mo. 283, 40 S.W.2d 1069;Wolfson v. Cohen,55 S.W.2d 677.(4) The evidence was insufficient to make a case for the jury.The physical facts support respondent's contention.Sexton v. Street Ry. Co.,245 Mo. 254;Roseman v. United Rys. Co.,251 S.W. 104.There was no substantial evidence supporting appellant's case and the evidence failed to show with reasonable certainty that the injuries were produced by a cause for which the defendant was liable.Coble v. Ry. Co.,38 S.W.2d 1031;Hamilton v. Ry. Co.,300 S.W. 787;Dyer v. Sutherland Building Contracting Co.,258 S.W. 48;Wellman v. Wales,97 Vt. 245, 122 A. 695.The verdict is manifestly for the right party and should not be disturbed.Maloney v. Boatmen's Bank, 232 S.W. 133.

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

OPINION

FERGUSON

This is an action for damages for personal injuries which plaintiff sustained when, as the petition alleges, on account of the negligent operation thereof defendant's motor truck struck a bicycle upon which plaintiff was riding.The collision occurred on Gravois Avenue in the city of St. Louis and this action was instituted and tried in the circuit court of that city resulting in a verdict and judgment for defendant and plaintiff has appealed.The petition alleges and prays damages in the sum of $ 20,000 wherefore our jurisdiction.

Appellant assigns as error the giving of certain instructions on the part of defendant.Defendant(respondent) however takes the position that granting and notwithstanding erroneous instructions were given, at its instance, the verdict is manifestly for the right party, that the evidence is insufficient to support a verdict for plaintiff, that plaintiff did not make a case for the jury and that the court should have directed a verdict for it as requested at the close of all the evidence in the case.If this contention be sustained the alleged errors in instructions given need not be considered.[Bello v. Stuever(Mo.),44 S.W.2d 619;Lindman v. Altman,308 Mo. 187, 271 S.W. 512;Cadwell v. Wilson Stove Co.(Mo.),238 S.W. 415;Moloney v. Boatmen's Bank,288 Mo. 435, 232 S.W. 133;Schultz v. Lindell,24 Mo. 567.]Thus we are required to review and examine the evidence.

Gravois Avenue is an east and west street in the city of St. Louis.It is sixty feet wide, paved with brick and double street car tracks are located in the center of the street, the paving between the tracks and the rails of the tracks is also brick.It is a distance of twenty feet from the north rail of the north or westbound tracks to the north curb line.Westerly from its intersection with Gustine Avenue Gravois is downgrade, a relatively steep incline, for several blocks.About four-thirty P. M., May 27, 1927, a clear day and the street was dry, the plaintiff, then a boy twelve years of age, was riding west on Gravois with a boy friend, James Irgang, on James' bicycle.James was sitting upon the seat of the bicycle and operating the pedals and the handlebars and guiding the course of the bicycle.Plaintiff"was sitting sideways upon the horizontal cross-bar that runs from just below the handlebars to the seat," his body being turned toward the north, his head however turned and he was looking, toward the west, the direction they were traveling.His position did not obstruct the view ahead of James who was operating the bicycle.The boys entered Gravois several blocks east of Gustine Avenue and turned west traveling on the north side of Gravois between the car tracks and the north curb and had proceeded some distance down the hill or grade west of Gustine Avenue when they fell or were thrown from the bicycle against the north curb of Gravois Avenue and an iron lamp post near the curb.They were both rendered unconscious and suffered severe and permanent injuries.Immediately prior to the fall from the bicycle one of defendant's motor trucks operated by one of its employees in the course of defendant's business was also traveling west on the north side of Gravois between the north or west-bound street car track and the north curb and to the rear of the bicycle.The facts stated thus far are uncontradicted.Plaintiff claims that defendant's truck was negligently driven against or permitted to strike the rear of the bicycle causing it to careen toward and crash into the curb throwing him and James against the curb and the iron post resulting in the injuries which are enumerated in detail in the petition but not pertinent here.Defendant denies that its truck struck the bicycle and says the accident was caused by the bicycle running against a piece of concrete paving block which was lying in the street at that point.As we read this record there was substantial but contradictory and sharply conflicting evidence substantiating both theories and therefore a case for the jury and we think a statement of the main facts and circumstances in evidence will demonstrate that the trial court correctly ruled that a submissible case was made.On the same facts the St. Louis Court of Appeals held a case was made for the jury in an action by the Irgang boy against this same defendant and affirmed a judgment for $ 5000.[Irgang v. Tieman Coal & Material Co.(Mo. App.), 46 S.W.2d 919.]Plaintiff testified that as the bicycle started down hill at Gustine Avenue he looked back east and "saw the truck behind our bicycle; it was then about 100 or 150 feet behind us;" that as they went down the hill he realized the truck was drawing close to the bicycle as he"heard the hum of the motor and the noise the truck was making on the street;" that immediately before the accident he was "looking down" and "saw the lower part and left-hand wheel was about a couple of feet in back and four or five feet to the left of the bicycle and moving toward" it; that the truck "was running toward the bicycle;" that instantly thereafter "I felt an impact;" the bicycle was "thrown over to the right,"they were thrown from the bicycle, and...