175 S.W.2d 819
JOHN M. LLOYD
ALTON RAILROAD COMPANY, Appellant.
Supreme Court of Missouri.
Division One, November 1, 1943.
Rehearing Denied, December 6, 1943.
[175 S.W.2d 820]
Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
Charles M. Miller for appellant.
(1) The trial court erred in refusing and not giving defendant's peremptory instruction requested at the close of all the evidence for the reason plaintiff, at the time of the accident, was not engaged in interstate transportation or in work so closely related thereto as to be practically a part of it. Benson v. Mo. Pac. R. Co., 334 Mo. 851, 69 S.W. (2d) 656; Peterson v. D., L. & W.R. Co., 229 U.S. 146; Shanks v. D., L. & W.R. Co., 239 U.S. 556; Garrison v. Thompson, 344 Mo. 579, 127 S.W. (2d) 649; L. & N. Rd. Co. v. Brittain, 93 Fed. (2d) 159; Kelly v. Penn. Rd. Co., 238 Fed. 95; So. Rd. Co. v. Pitchford, 253 Fed. 736; Middleton v. So. Pac. Rd. 61 Fed. (2d) 924. (2) The trial court erred in refusing and not giving defendant's requested peremptory instruction at the close of all the evidence, for the reason that, upon the pleadings and evidence, plaintiff made no case for a jury because Poynter, the operator of the railroad motorcar, was not guilty of any actionable negligence. The record on this appeal is different from that on the former appeal. This court is also not bound by its former decision if it made a mistake of fact or law. Kick v. Franklin, 345 Mo. 752, 137 S.W. (2d) 512; Monroe v. Chicago & Alton, 297 Mo. 633, 249 S.W. 644; Lloyd v. Alton, 348 Mo. 122, 159 S.W. (2d) 267. (3) Plaintiff's petition for grounds of negligence, pleaded the law of Illinois and is bound thereby. The defendant's amended answer also pleaded the Illinois law. Davis v. Chicago & E.J. Ry. Co., 338 Mo. 1248, 94 S.W. (2d) 370; Bruce v. Sims, 34 Mo. 246; Weil v. Posten, 77 Mo. 284; Knoop v. Kelsey, 102 Mo. 291, 14 S.W. 110; Davis v. Bond, 75 Mo. App. 32; Kelley v. Briggs, 290 S.W. 105; Farm & Home Sav. & Loan Assn. v. Stubbs, 98 S.W. (2d) 320. (4) Plaintiff made no proof of Illinois law, but defendant did, including cases where a railroad motorcar had been derailed by striking a dog, injuring occupants on the car, and in suits by the occupants the court denied recovery. Schmidt v. Litchfield & Madison Ry., 179 Ill. App. 533; Bondy v. Litchfield & Madison Ry., 196 Ill. App. 560, 210 Ill. App. 574. (5) Plaintiff, on cross-examination, judicially admitted he "didn't suppose dog was going to run on the track, maybe" (Court's former Opinion, 159 S.W. (2d) 270). McCoy v. Home Oil & Gas Co., 60 S.W. (2d) 715; Behen v. Transit Co., 186 Mo. 430, 85 S.W. 346; Haddow v. Public Serv. Co., 38 S.W. (2d) 284; Madden v. Red Line Service Co., 76 S.W. (2d) 435; 9 Wigmore on Evidence (3rd Ed.), sec. 2594A. (6) Dogs are active, swift, alert and watch out for own safety and are different from other animals and more like a human being in this respect. Klein v. Transit Co., 117 Mo. App. 691, 93 S.W. 281; Flowerree v. Thornberry, 183 S.W. 359; Fowles v. Railroad Co., 73 S.C. 308, 53 S.E. 534; Owen v. Southern Ry., 133 So. 33; Jones v. Bond, 40 Fed. 281; Moore v. Elect. Ry., 48 S.E. 822. (7) Dog knew of approach of railroad motorcar and was in pursuit of it (Former Opinion of this court page 271). He was, therefore, not oblivious of approach of motorcar and could see it all the time. Judicial knowledge of action of dogs cannot be invoked as to a railroad motorcar, under the evidence in this case. In any event, such is not conclusive and may be disproved by evidence of habits of dogs. Wigmore on Evidence (3rd Ed.), sec. 2569; 1 Wigmore on Evidence, sec. 68A, p. 490, sec. 201, p. 688; Broderick v. Higginson, 48 N.E. 269; Mitchell v. Central of Vt., 158 N.E. 336; Goldin v. Rd. Co., 84 Mo. App. 59; Forsythe v. Kluckhohn, 142 N.W. 225. (8) Actionable negligence must be predicated upon reasonable probability, possibility not enough. Mullen v. Lowden, 340 Mo. 40, 124 S.W. (2d) 1152; Lotta v. K.C. Pub. Serv. Co., 342 Mo. 743, 117 S.W. (2d) 296; Wecker v. Ice Cream Co., 326 Mo. 451, 31 S.W. (2d) 974. (9) At most, same rule should at least apply to dogs, as to a pedestrain at a public crossing, under facts of this case, with respect to knowledge of approach of a car on railroad track. Camp v. Kurn, 142 S.W. (2d) 772. (10) No evidence of excessive speed of motorcar and such as pleaded was not only inconsistent with plaintiff's first charge of negligence but was not a proximate, contributing cause. The petition was a "felo de se," as to negligence alleged. Gabriel v. St. Ry. Co., 130 Mo. App. 651, 109 S.W. 1042; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W. (2d) 1; Campbell v. T. & P. Ry. Co., 152 So. 351; Decker v. Rd. Co., 187 Mo. App. 207, 172 S.W. 1168; McGee v. Railroad, 214 Mo. 530, 114 S.W. 33; Grubb v. Railroad, 214 S.W. 256. (11) The trial court erred in refusing to admit in evidence, the ordinary habits of the collie dog on previous occasions, when a railroad motorcar would pass on the track which was to the effect he would approach to about 10 or 15 feet of the track and bark at the car as it passed, and would never get closer to the track. Such was, at least, some evidence of what like dogs would do, if not all dogs, and was admissible under the facts of this case, and bore on whether or not there was "reasonable probability" the dog would get on the track and collide with the car. Such also tended to disprove the "judicial knowledge" which this court applied on previous appeal. Other evidence of the ordinary habits and traits of the collie dog was also admissible for like reasons. Wigmore on Evidence (3rd Ed.), sec. 2565; also Vol. 1, sec. 68A, p. 490; sec. 201, p. 688; Broderick v. Higginson, 48 N.E. 269; Mitchell v. Central of Vt., 158 N.E. 336; Goldin v. Railroad Co., 84 Mo. App. 59; Forsythe v. Kluckhohn, 142 N.W. 225. (12) The trial court erred in giving plaintiff's Instruction 1, on the alleged issue of plaintiff being, at the time of the accident, engaged in interstate transportation, and also erred in refusing defendant's Instruction W, if plaintiff made a submissible issue thereon, defendant asserting the evidence made no issue for the jury thereon but, if so, then defendant's refused Instruction W should have been given for it properly declared the law, and plaintiff's Instruction 1 did not. Benson v. Mo. Pac. R., 334 Mo. 851, 69 S.W. (2d) 656; Shanks v. D., L. & W.R. Co., 239 U.S. 556; Ill. Central v. Cousins, 249 U.S. 641; Garrison v. Thompson, 334 Mo. 579, 127 S.W. (2d) 649; L. & N. Rd. Co. v. Brittain, 93 Fed. (2d) 159; Kelly v. Penn. Rd. Co. (C.C.A.), 328 Fed. 95; So. Rd. Co. v. Pitchford (C.C.A. 4), 253 Fed. 736; Middleton v. So. Pac. R. (C.C.A. 5), 61 F. (2d) 924. (13) The trial court erred in giving plaintiff's instruction No. 2, relating to alleged negligence that the operator of the motorcar was guilty of negligence in failing to slacken or stop the car. Said instruction disproves and conflicts with plaintiff's given Instruction 3 and is not supported by any allegation of negligence in the petition, the petition being "felo de se," as to negligence alleged. Gabriel v. Street Ry. Co., 130 Mo. App. 651, 109 S.W. 1042; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W. (2d) 1; Kick v. Franklin, 342 Mo. 715, 117 S.W. (2d) 284. (14) The trial court erred in giving plaintiff's Instruction 3, informing the jury that they must return a verdict for plaintiff, if the jury believed and found that Poynter was guilty of negligence in operating the motorcar at a speed of "25 miles per hour or more." There was no evidence upon which to predicate said instruction. (15) The instruction was contradictory of plaintiff's Instruction 2, which proceeded upon the theory that Poynter was negligent in not slackening or stopping the car and it was error to submit the alleged issue of negligent speed. One conflicted with the other. One disproved the other. State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W. (2d) 1; Kick v. Franklin, 342 Mo. 715, 117 S.W. (2d) 284. (16) But even if the instruction was not conflicting with plaintiff's Instruction 2, it cannot be the law Poynter had to operate the car at such a rate of speed that he could so control the car as to slacken or stop it, in the event a dog might run out on the railroad's private right of way, toward the track thus making Poynter guilty of actionable negligence. Campbell v. T. & T. Ry. Co., 152 So. 351; McGee v. Railroad, 214 Mo. 530, 114 S.W. 33. (17) The alleged negligence of excessive speed was not a proximate contributing cause. Decker v. Railroad, 187 Mo. App. 207, 172 S.W. 1168; Grubb v. Railroad, 214 S.W. 256; Schmidt v. Transit Co., 140 Mo. App. 182, 120 S.W. 96; O'Bauer v. Katz Drug Co., 49 S.W. (2d) 1065. (18) The instruction was a roving commission to the jury and singled out and gave undue prominence to a "speed of 25 miles or more per hour." Also the instruction is indefinite and uncertain and does not follow the allegations of the petition and leaves the jury to determine in regard to excessive speed without any limitation or basis therefor. (19) The trial court erred in refusing defendant's requested instructions H, I, J, L, M, Q, and S for the reason that said instructions properly declared the law applicable to this case and should have been given, if plaintiff made a case for a jury as to his first alleged ground of negligence. These instructions were refused because they embodied therein the right of assumption on the part of Poynter, of the ordinary instincts of dogs to avoid danger and not come on the railroad track when seen approaching the railroad track, like the dog in question. Such assumption was made and approved in the consideration of instructions in the following cases: Flowerree v. Thornberry, 183 S.W. 359; Klein v. St. Louis Transit Co., 117 Mo. App. 691, 93 S.W. 281; Fowles v. Railroad Co., 73 S.C. 308, 53 S.E. 534; Smith v. Wells, 326 Mo. 525,...