Lloyd v. Alton Railroad Co.

• Decision Date: 12 December 1941
• Docket Number: No. 37660.,37660.
• Citation: 159 S.W.2d 267
• Parties: JOHN M. LLOYD v. ALTON RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

159 S.W.2d 267

JOHN M. LLOYD v. ALTON RAILROAD COMPANY, a Corporation, Appellant.

No. 37660.

Supreme Court of Missouri.

Division One, December 12, 1941.

Rehearing Denied, February 26, 1942.

Appeal from Jackson Circuit Court. — Hon. Brown Harris, Judge.

AFFIRMED AND REMANDED.

Charles M. Miller for defendant and appellant.

(1) The trial court erred in granting a new trial because of the giving of defendant's requested instruction C on the burden of proof. Williams v. Guyot, 344 Mo. 372, 126 S.W. (2d) 1137; Stolovey v. Fleming, 328 Mo. 623, 8 S.W. (2d) 832. (2) The trial court erred in granting a new trial because of the giving of defendant's requested instruction H. Owen v. Southern Ry., 133 So. 33; Moore v. Elec. Ry. Co., 48 So. 822; Lawless v. Gas Light Co., 72 Mo. App. 679. (3) The peremptory instruction requested by the defendant should have been given. Schmidt v. Litchfield, 137 Ill. 533; Bandy v. Litchfield, 196 Ill. App. 560, second appeal, 210 Ill. 574; Owen v. Southern Ry., 133 So. 33; Moore v. Elec. Ry., 48 So. 822; Howard v. Railroad, 284 S.W. 834; L. & N. v. Cox, 117 So. 293.

Charno & Drummond, John A. McGuire and Ira B. Burns for respondent.

(1) Appellant has failed to show error in trial court's refusal of peremptory instruction. Weaver v. Mobile & O.R. Co., 343 Mo. 223, 120 S.W. (2d) 1105; Crain v. Ill. Cent. R. Co., 335 Mo. 658, 73 S.W. (2d) 786; Hardin v. Ill. Cent. R. Co., 334 Mo. 1169, 70 S.W. (2d) 1075; Poe v. Ill. Cent. R. Co., 335 Mo. 507, 73 S.W. (2d) 779; Willhauck v. C., R.I. & P. Ry. Co., 332 Mo. 1165, 61 S.W. (2d) 336; Eubank v. K.C. Term. R. Co., 346 Mo. 436, 142 S.W. (2d) 19; Randall v. Baltimore & O.R. Co., 109 U.S. 478, 3 Sup. Ct. Rep. 322; Krinard v. Westerman, 279 Mo. 680, 216 S.W. 938; Jenkins v. Wabash R. Co., 335 Mo. 748, 73 S.W. (2d) 1002; Parrent v. Mobile & O.R. Co., 334 Mo. 1202, 70 S.W. (2d) 1068; Hill v. Mo. Pac. Ry. Co., 49 Mo. App. 520, affirmed 121 Mo. 477, 26 S.W. 576; Rhinehart v. St. L. & S.F.R. Co., 129 Mo. App. 168, 108 S.W. 103; Sandri v. Byram, 30 Fed. (2d) 784; Hoskins v. Bangor & A.R. Co., 195 Atl. 363, 135 Me. 285; Atchison, Topeka, etc., R. Co. v. Molone, 197 Pac. 164, 81 Okla. 193. (a) Appellant's cited cases are not authority for granting peremptory instruction. Civil Practice Act, chap. 110, par. 216, sub. (3) b. Smith-Hurd Ill. R.S. 1935; Grand Trunk Western Ry. Co. v. Heatlie, 48 Fed. (2d) 759; Stegner v. M., K. & T.R. Co., 333 Mo. 1182, 64 S.W. (2d) 691; Owen v. So. Ry. Co., 133 So. 33; L. & N.R. Co. v. Coxe, 117 So. 293; West Chi., etc., R. Co. v. Klecka, 94 Ill. App. 346; Citizens Rapid Transit Co. v. Dew, 100 Tenn. 317, 45 S.W. 790. (b) The question of negligence was for the jury, not the court. Lawless v. Laclede Gas & Light Co., 72 Mo. App. 679; Restatement of the Law, Torts, chap. 12, sec. 290; Paradis v. Maine Cent. R. Co., 81 N.H. 210, 123 Atl. 227; Woods v. Moore, 48 S.W. (2d) 202; Beal v. C., B. & Q.R. Co., 285 S.W. 482; Tullgren v. Amoskeag Mfg. Co., 133 Atl. 4, 46 A.L.R. 380, 82 N.H. 268; Parker v. Nelson Grain Co., 330 Mo. 95, 48 S.W. (2d) 906; Gratiot v. Mo. Pac. Ry. Co., 116 Mo. 450, 21 S.W. 1094; Hampton v. Des Moines, etc., R. Co., 65 Fed. (2d) 899; N.Y. etc., R. Co. v. Pascucci, 46 Fed. (2d) 969; Gardner v. Mich. Cent. R. Co., 14 Sup. Ct. Rep. 140, 150 U.S. 349; N.W. Pac. R. Co. v. Fiedler, 52 Fed. (2d) 400; Grand Trunk Ry. Co. v. Ives, 12 Sup. Ct. Rep. 679, 144 U.S. 408; Guthrie v. City of St. Charles, 152 S.W. (2d) 91. (2) The trial court did not err in granting a new trial because of the giving of defendant's instruction H. This instruction was prejudicially erroneous because it was a comment on the evidence and invaded the province of the jury; it was a positive misstatement of the law applicable to the case; it was confusing and tended to mislead the jury and it was in conflict with defendant's theory of the case and was based upon evidence which was contradicted by defendant's testimony. Schlemmer v. Buffalo R. Co., 205 U.S. 1, 27 Sup. Ct. Rep. 407; Tullgren v. Amoskeag Mfg. Co., 133 Atl. 4; Kenny v. Wong Len, 128 Atl. 343; 2 Restatement of Law, Torts, chap. 12, sec. 290; Radabaugh v. Williford, 116 S.W. (2d) 118; Laible v. Wells, 296 S.W. 428; Bente v. Finley, 83 S.W. (2d) 155; State v. Psycher, 179 Mo. 159, 77 S.W. l.c. 841; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 746; Owen v. So. Ry. Co., 133 So. 33; Eads v. Galt Tel. Co., 199 S.W. 710; Utz v. Skinner, 249 S.W. 651; Atchison, etc., R. Co. v. Molone, 197 Pac. 164; Hoskins v. Bangor, etc., R. Co., 195 Atl. 363; American Brewing Assn. v. Talbot, 196 S.W. 1088, 141 Mo. 674; Parker v. Nelson Grain & Mill Co., 48 S.W. (2d) 906; Sanders v. Hays, 122 S.E. 572; Zumwalt v. C. & Alton R. Co., 266 S.W. 717; Goodwin v. Eugas, 290 Mo. 673, 236 S.W. 50; Rucker v. Alton R. Co., 123 S.W. (2d) 24; Pentecost v. St. L., etc., R. Co., 334 Mo. 572, 66 S.W. (2d) 533; Dilallo v. Lynch, 340 Mo. 82, 101 S.W. (2d) 7; Graefe v. St. L. Transit Co., 224 Mo. 232, 123 S.W. 835; Strother v. Sieben, 282 S.W. 502; Stafford v. Ryan, 276 S.W. 636; Poague v. Kurn, 140 S.W. (2d) 13. (3) Instruction C is erroneous and prejudicial to plaintiff because: (a) It encroaches too much upon the law, and it unduly emphasizes the law on burden of proof and duty of jury with respect to defendant, while tending to obliterate from mind of the jury plaintiff's evidence. (b) It is argumentative, misleading and confusing. Nelson v. Evans, 338 Mo. 991, 93 S.W. (2d) 691; Sidway v. Mo. Land & Livestock Co., 163 Mo. 342, 63 S.W. 705; Miller v. Williams, 76 S.W. (2d) 355; Fantroy v. Schirmer, 296 S.W. 235; Williams v. Guyot, 344 Mo. 372, 126 S.W. (2d) 1137; Wolfson v. Cohen, 55 S.W. (2d) 677; Mitchell v. Dyer, 57 S.W. (2d) 1082; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W. (2d) 58; King v. Reith, 341 Mo. 467, 108 S.W. (2d) 1; Oliver v. Morgan, 73 S.W. (2d) 993; Pepperkorn v. St. Louis Transfer R. Co., 171 Mo. App. 709, 154 S.W. 836; State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W. (2d) 667; Aly v. Terminal R. Assn., 336 Mo. 340, 78 S.W. (2d) 851; Sheehan v. Term. R. Assn., 336 Mo. 709, 81 S.W. (2d) 305; Blunk v. Snider, 342 Mo. 26, 111 S.W. (2d) 163; Finn v. United Rys. Co. of St. Louis, 267 S.W. 416; Robert v. N.Y. Cent. R. Co., 122 S.W. (2d) 1; Randall v. Baltimore & O.R. Co., 109 U.S. 478, 3 Sup. Ct. Rep. 322; Thompson v. St. Joseph Ry., L.H. & P. Co., 131 S.W. (2d) 574; Wells v. City of Jefferson, 132 S.W. (2d) 1006; Pearrow v. Thompson, 343 Mo. 490, 121 S.W. (2d) 811; Arnold v. Alton Ry. Co., 343 Mo. 1049, 124 S.W. (2d) 1092. (4) Instruction G is erroneous and prejudicial: (a) Because it is argumentative and a misstatement of the law. (b) Because it is contradictory of appellant's own evidence and theory. (c) Because it submits a defense that finds no support in the evidence. (d) Because it omitted a necessary constituent element of defense and conflicts with respondent's instruction 2. Thrower v. Life & Casualty Co., 141 S.W. (2d) 192; Klaber v. Corporation, etc. of London, England, 48 S.W. (2d) 62; Dietrich v. Cape Brewery & Ice Co., 315 Mo. 507, 286 S.W. 38; Dilallo v. Lynch, 340 Mo. 82, 101 S.W. (2d) 7; Rucker v. Alton R. Co., 343 Mo. 929, 123 S.W. (2d) 24; Pentecost v. St. Louis, etc., R. Co., 334 Mo. 572, 66 S.W. (2d) 533; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W. (2d) 864; Miller v. Williams, 76 S.W. (2d) 355; Nimmo v. Perkinson Bros. Const. Co., 85 S.W. (2d) 98; Schulz v. Smercina, 318 Mo. 486, 1 S.W. (2d) 113.

DALTON, C.

Action for damages for $50,000 under the Federal Employers' Liability Act (45 U.S.C.A., secs. 51-59) on account of personal injuries alleged to have been sustained by plaintiff by reason of defendant's negligence in the operation of a railroad gasoline motorcar. The jury found for defendant, but a new trial was granted on account of error in giving instructions "C" and "H," requested by defendant. Defendant has appealed, and contends (1) that its peremptory instruction should have been given as requested at the close of all the evidence; and (2) that instructions "C" and "H" correctly declare the law.

Although several grounds of negligence were alleged in the petition, the only one submitted was the negligent failure of the operator to slacken the speed of or stop the motorcar upon which plaintiff was riding, and, thereby, avoid a collision with a dog, the derailment of the car and the injury to plaintiff. Plaintiff's principal instruction, among other things, required the jury to find (1) "that the operator of said car saw said dog as it entered upon said right of way and proceeded toward said track;" (2) "that its position, actions and movements at that time and place were such as to suggest to a reasonably prudent person situated as was the operator of said motorcar ... that there was a reasonable probability that said dog would come into a position on defendant's tracks or in such close proximity thereto that it would be run into and struck by said motorcar ... and thereby endanger the safe operation of said motorcar and the safety of the plaintiff;" (3) "that the operator of said car knew of said danger, if any, or in the exercise of ordinary care could have known of such danger, if any, after he saw said dog enter upon the right of way as above set forth;" (4) "that the operator of said car thereafter in the exercise of ordinary care with the means and appliances at hand and with safety to said motorcar and its occupants could have slackened the speed thereof or stopped same ... and thereby avoided striking said dog;" and (5) "that he carelessly and negligently failed so to do ... and that as a direct result of such negligence ... said motorcar was caused to strike said dog and thereby derail said motorcar and injure plaintiff."

Considered most favorably to plaintiff, the evidence tended to show that plaintiff was employed by defendant as a member of a bridge carpenter gang; that on June 8, 1938, he was directed by his foreman to accompany him...