Leister v. Wells
| Decision Date | 31 July 1923 |
| Citation | 254 S.W. 75,300 Mo. 262 |
| Parties | JACOB LEISTER, Appellant, v. ROLLA WELLS, Receiver of United Railways Company of St. Louis |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.
Affirmed.
S. P Bond and George Barnett for appellant.
(1) The court erred in granting at defendant's instance and request, and over the objection and exception of plaintiff instruction numbered three. (a) The instruction improperly and erroneously declared the law, for the reason that it required the jury to believe that the street car actually came in contact with the truck, in order for plaintiff to recover. Under the pleadings and the law, even though the street car may not actually have come in contact with the truck, still if the defendant negligently undertook to pass the truck in such close proximity thereto that plaintiff's elbow came in contact with the truck, the plaintiff was entitled to recover, unless the jury may have believed that the plaintiff failed to exercise ordinary care for his own safety, by reason of the extent to which plaintiff's elbow may have been protruding outside the car. This instruction is predicated upon the theory that if plaintiff's elbow was outside the car, even to the slightest extent, then as a matter of law, plaintiff was not entitled to recover. This is not the law. Barton v Railroad Co., 52 Mo. 253; Smith v. Transit Co., 120 Mo.App. 328; Miller v. Railroad Co., 5 Mo.App. 471; Gage v. Transit Co., 211 Mo. 152. (b) The instruction is erroneous for the reason that it constitutes a comment on the evidence. Rice v. Bridge & Tr. Co., 216 S.W. 746. (c) The instruction is erroneous, because it singles out a certain fact, and gives it undue prominence. Kepley v. Realty Co., 200 S.W. 756; Derrington v. Poplar Bluff, 186 S.W. 561; Quinn v. Van Raalte, 205 S.W. 68; Gott v. Rys. Co., 222 S.W. 827; Disbrow v. Ice Co., 138 Mo.App. 56. (2) The court erred in granting instruction numbered four. (a) The instruction improperly and erroneously declared the law, for the reason that the instruction precludes recovery in the event the plaintiff's elbow was protruding beyond the side of the car, without reference to whether the jury believed the plaintiff was thereby guilty of negligence. Under the pleadings and the law, the plaintiff was entitled to recover, if he exercised reasonable care for his own safety and if the defendant negligently drove its car so close to the truck as to catch and injure his arm. The instruction denied the plaintiff the right to recover on this theory. Barton v. Ry. Co., 52 Mo. 253; Smith v. Transit Co., 120 Mo.App. 328; Miller v. Railroad Co., 5 Mo.App. 471; Gage v. St. Louis Transit Co., 211 Mo. 152. (b) The instruction is erroneous for the reason that it constitutes a comment on the evidence. (c) Because the instruction assumes the fact to be that plaintiff had his elbow extending out and beyond the line of the street car. Moon v. Transit Co., 247 Mo. 237. (d) Because the instruction is argumentative. Pasche v. Tower Sets Co., 190 S.W. 30; Eads v. Galt Tel. Co., 199 S.W. 710. (3) The court erred in granting instruction numbered five. The instruction was misleading in that it might have led the jury to believe that they should, in the event any statement made by the plaintiff contradicted the physical facts, it was their duty to disregard all his testimony. In directing the jury to disregard the statements of plaintiff the instruction should have been confined to such statements as contradicted the physical facts. Furthermore, the instructions should have been limited to substantial or material physical facts in the case. White v. Lowenberg, 55 Mo.App. 69; Klein v. Sealey, 257 Mo. 527. This instruction is apparently aimed at the plaintiff's testimony to the effect that he did not have his elbow extending out beyond the side of the street car. Even though the jury may have believed that through ignorance or mistake plaintiff stated this fact, and that the statement contradicted the physical facts, still the jury may have disregarded this statement and adopted the rest of plaintiff's story and the conclusion drawn from the physical facts, even though shown by defendant, and still have found for plaintiff. Wagner v. Pryor, 204 Mo.App. 478; Huff v. Railway, 213 Mo. 495. (4) The court erred in giving instruction numbered six. (a) Under the facts of the case the injuries resulted either from the negligence of defendant, or the concurring negligence of defendant, and the contributory negligence of plaintiff. Under such circumstances an instruction on the theory of an accident is unauthorized and erroneous. Beard v. Mo. Pac. Ry. Co., 272 Mo. 142. (b) The instruction is repugnant to instruction numbered one. Certainly a presumption of negligence and an accident are not consistent. Stoffer v. Dunham, 208 S.W. 641. (5) The court erred in refusing to grant plaintiff a new trial inasmuch as the affidavits filed by plaintiff as to newly discovered evidence, plainly entitled plaintiff to a new trial. R. S. 1919, sec. 1453.
T. E. Francis, Charles W. Bates and Nortoni, Moore, Breaker & Green, for respondent.
(1) The books abound with cases in which judgments are affirmed though erroneous instructions were given, when it appears that the error was invited by the complaining party, in the view that the case should be disposed of on appeal on the same theory on which it was tried, and for the further reason that it is not error on the part of the trial court to proceed on a theory pursued by both parties. Simpson v Wells, 237 S.W. 528; Merrielees v. Wabash Ry. Co., 163 Mo. 470; Keele v. Railroad Co., 258 Mo. 62; Chinn v. Naylor, 182 Mo. 595; Walker v. Wabash Ry Co., 193 Mo. 483; Holmes v. Braidwood, 82 Mo. 610; Hays v. Bunch, 91 Mo.App. 471; Spain v. Ry. Co., 190 S.W. 358; Mitchell v. Brown, 190 S.W. 356; Boatmen's Bank v. Union Trust Co., 205 S.W. 629. (2) The court "shall in every stage of the action disregard any error or defect which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect." Secs. 1276, 1513, R. S. 1919. Self-invited error, if error there be, cannot affect the substantial rights of the "adverse party" who invites it. When these statutes are considered, "there is a wide difference between conceivable error and reversible error." Shinn v. United Rys. Co., 248 Mo. 173. (3) Plaintiff could not have received an injury in the manner he describes, with his arm wholly within the car, by means of some portion of the standing truck coming into the window of the moving car and then going out again. The indisputable laws of physics attest otherwise, and, therefore, the court should have directed a verdict for defendant. Lange v. Met. St. Ry. Co., 151 Mo.App. 505. (4) Although the petition may have been formulated with a view of conveying a general charge of negligence, it lays a specific act of negligence in charging that plaintiff received his injury "by reason of the negligence and carelessness of defendant in permitting its car, as aforesaid, on said line, at said point, to collide with said truck-stake wagon, projection thereof or therefrom." Zaszmowick v. Am. Mfg. Co., 190 S.W. 802; Pointer v. Const. Co., 189 S.W. 808; McGrath v. Transit Co., 197 Mo. 105; Chitty v. Ry. Co., 148 Mo. 63; Orcutt v. Century Bldg. Co., 201 Mo. 424; Roscoe v. Met. St. Ry. Co., 202 Mo. 576; McCarty v. Hotel Co., 144 Mo. 402; Fuchs v. St. Louis, 167 Mo. 620. (a) Plaintiff must stand or fall under the foregoing specific charge of negligence. Northam U. Rys. Co., 176 S.W. 229; McGrath v. Transit Co., 197 Mo. 105. (b) Plaintiff directed his testimony to this specific negligent act of a collison charged. (c) The specific act of causing the street car to collide with the truck, or some portion thereof or therefrom, charged in the petition, being thus supported by direct testimony on the part of plaintiff himself, his counsel in plaintiff's first instruction interpreted his petition and his evidence as tendering a specific issue of fact with respect to the cause of the alleged injury, by requiring the jury to find "and if you believe from the evidence that the street car on which plaintiff was a passenger (if you believe he was a passenger thereon) collided with the truck, stake wagon, projection thereof or therefrom," etc. (d) The converse of this issue so framed and put to the jury by plaintiff clearly was and is that set forth in respondent's Instruction 3, to the effect that if the street car did not come in collision with the truck "or any portion thereof or therefrom, then plaintiff is not entitled to recover." And respondent's Instruction 4, to the effect that if the jury believe that plaintiff's injury was caused by his having his arm outside of the street car and as a result thereof it came in contact with the truck, and if the jury further believed "that the truck or any portion thereof was not sufficiently near to the street car to come in contact therewith, then plaintiff was not entitled to recover." These instructions clearly submitted, from defendant's standpoint, the issue concerning the specific charge of negligent collision with the truck, or some projection thereof or therefrom, which plaintiff tendered and invited. (5) "Plaintiff cannot plead one cause of action and recover upon another not pleaded, notwithstanding the other would be a good cause of action if properly pleaded." Chitty v. Railway Co., 148 Mo. 64. (6) Respondent's Instruction 4 is moreover a proper declaration of law on the question of proximate cause and causal connection. The negligent act charged being a collision by the street car with the truck or some projection thereof or therefrom, then if the jury should...
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