Nagel v. Thompson
| Decision Date | 05 April 1943 |
| Docket Number | No. 20301.,20301. |
| Parties | MARY NAGEL, RESPONDENT, v. GUY A. THOMPSON, TRUSTEE FOR THE MISSOURI PACIFIC RAILROAD COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Osage Circuit Court. — Hon. R.A. Breuer, Judge.
REVERSED AND REMANDED.
Thomas J. Cole, James A. Potter, Leon P. Embry and Marion R. Garstang for appellant.
(1) The trial court erred in refusing defendant's requested instruction in the nature of a demurrer to the evidence directing a verdict for the defendant at the close of all of the evidence, because: (a) Plaintiff's action should have been for misdirection and not for failure to stop at Hermann. Marshall v. Ry. Co., 78 Mo. 611, 616; Sira v. Ry. Co., 115 Mo. 127, 133; Gosney v. Steamship Co., 177 Mo. App. 323, 328; Turner v. McCook, 77 Mo. App. 196, 200. Where the evidence establishes a cause of action different from the one pleaded, the case should not be submitted. State ex rel. v. Hostetter et al. (Mo.), 140 S.W. (2d) 21, 23. (b) Plaintiff was guilty of contributory negligence in riding on the platform, if she did. Russell v. Railroad, 175 Mo. App. 457, 461-463; Aufdenberg v. Ry. Co., 132 Mo. 565, 575-6. (c) There was no substantial evidence that riding on the platform, if she did, was the proximate cause of any ailments plaintiff may have had. Young v. Ry. Co., 113 Mo. App. 636, 640; Smart v. Kansas City, 91 Mo. App. 586, 592-3. The fact that the surgeon, who operated, was not produced as a witness raises a strong inference against plaintiff. Willits v. C., B. & Q. Ry. Co. (Mo.), 221 S.W. 65, 66. Plaintiff's failure to complain to the trainmen is so contrary to the common experience of mankind that her testimony that she was injured is of no probative force. Murray v. R. Co., 72 N.H. 32, 37; Nowlin v. K.C.P.S. Co., 58 S.W. (2d) 324, 330. If plaintiff is relying on an aggravation of a pre-existing condition she would not be entitled to recover for aggravation of such pre-existing infirmity. L. & N. Ry. Co. v. Turner (Ky.), 292 S.W. 758. (2) The trial court erred in giving plaintiff's instructions Nos. (1), (2), (3), (4), (5), (6), and (7) because: (a) The giving of that number of instructions for the plaintiff, covering ten pages of the printed record, was confusing, misleading and erroneous. Sidway v. Land & Live Stock Co., 163 Mo. 342, 376; Reeves v. Lutz, 191 Mo. App. 550, 559. (b) Said instructions are so repetitious as to be confusing. Palmer v. Ry. Co., 76 Mo. 217, 221. It is error thus to give undue prominence to a question. Dawes v. Starrett (Mo.), 82 S.W. (2d) 43, 58; Raymond, Missouri Instructions, Secs. 99 and 100; White v. National Lead Co. (Mo. App.), 99 S.W. (2d) 535, 540; Evans v. Farmers Elevator Co. (Mo.), 147 S.W. (2d) 593, 601. (3) The trial court erred in giving plaintiff's Instruction No. (1) because: (a) The use of the words "and transport them safely to their destination" in the first paragraph of said instruction makes the defendant an insurer of plaintiff's safety. Craig v. United Railways, 175 Mo. App. 616, 622; Stauffer v. Railroad, 243 Mo. 305, 317. (b) Said instruction does not require a finding that any of the acts therein hypothesized constituted negligence on defendant's part as a prerequisite to a plaintiff's verdict. McCullough v. St. L.P.S. Co. (Mo. App.), 86 S.W. (2d) 334, 336; McCollum v. Winnwood Amusement Co., 59 S.W. (2d) 693, 697-8. (c) There was no substantial evidence on which to base a submission of injuries to the plaintiff. See authorities cited in Subdivision (c), Point 1, of this brief, supra. (4) The trial court erred in giving plaintiff's Instruction No. (2) because: (a) Said instruction states the maximum amount of damages, viz., $15,000, without disclosing any reason for doing so, and thereby erroneously conveys the impression that the court thought that the evidence warranted an award of damages within such limitation. Bond v. St. L. & S.F. Ry. Co. (Mo.), 288 S.W. 777, 785; Bales v. K.C.P.S. Co. (Mo.), 40 S.W. (2d) 665, 669; Perkins v. Terminal Ry. (Mo.), 102 S.W. (2d) 915, 923. (b) Said instruction is too long, misleading, ambiguous and confusing. The instruction consists of two sentences, the first sentence consisting of twenty-nine lines of the printed record constituting the first paragraph, and the second sentence consisting of twenty-one lines of the printed record constituting the second paragraph thereof. The length and makeup of the instruction make it misleading, ambiguous and confusing and the giving of it was, therefore, error. White v. National Lead Co. (Mo. App.), 99 S.W. (2d) 535, 540. (c) Said instruction does not require a finding that any of the acts therein hypothesized constituted negligence on defendant's part. The question of whether the acts therein hypothesized, if found to be facts, constituted negligence on defendant's part, should have been submitted to the jury. See authorities cited in Subdivision (b), Point 3, of this brief, supra. (d) Said instruction ignores the defense of contributory negligence. The instruction requires no finding that plaintiff was in the exercise of ordinary care for her own safety and ignores the defense of contributory negligence set up in defendant's answer. The defense of contributory negligence was not completely covered by defendant's given instructions because defendant's instructions Nos. D-7 and D-9 were refused and defendant's given instruction No. D-10 did not completely cover the defense. An instruction purporting to cover the whole case and direct a verdict should not ignore a defense or an exception to the right of recovery. Alexander v. Hoenshell (Mo. App.), 6 S.W. (2d) 164, 168; Toennies v. St. L.P.S. Co. (Mo. App.), 67 S.W. (2d) 818, 820. (e) Said instruction declared failure to stop at Hermann to be negligence even though it was a nonstop train, and in the latter event plaintiff's action should have been for misdirection and not for failure to stop. See authorities cited in Subdivision (a), Point 1, of this brief, supra. (f) There was not sufficient evidence of injuries to plaintiff to justify submission of the question of injures. For the same reasons stated, and upon the authorities cited in Point 1, Subdivision (c), of this brief, there was no sufficient evidence of injuries to justify the submission of the question of injuries. See authorities cited in Subdivision (c), Point 1, of this brief, supra. (g) Said instruction contains the condemned expression "and/or." The expression is meaningless and confusing and it is error to give an instruction containing it. Russell v. Storage & Ice Co. (Mo.), 59 S.W. (2d) 1061, 1069. (h) Said instruction authorzes a recovery for sickness and mental anguish without regard to whether there was an injury. Absent an injury, there can be no recovery for sickness or mental anguish. Rawlings v. Ry. Co., 97 Mo. App. 515, 518; Trigg v. Ry. Co., 74 Mo. 147, 153. (5) The trial court erred in giving Instruction No. (7) for the plaintiff because: (a) Said instruction does not require a finding that any of the acts therein hypothesized constituted negligence on defendant's part. For the same reasons stated, and upon the authorities cited, in Subdivision (b) of Point 3 of this brief, this was error. See authorities cited in Subdivision (b), Point 3, of this brief, supra. (b) There was not sufficient evidence of injuries to plaintiff to justify submission of the question of injuries. For the same reasons and upon the authorities cited in Subdivision (c), Point 1, of this brief, supra, there was not sufficient evidence to justify submission of the question of injuries. See authorities cited in Subdivision (c), Point 1, of this brief, supra. (6) The trial court erred in giving plaintiff's Instruction No. (3), because said instruction is simply the statement of an abstract proposition without effort to apply it to the case. Schipper v. Brashear Truck Co. (Mo.), 132 S.W. (2d) 993, 995. (7) The trial court erred in giving plaintiff's Instruction No. (4) because: (a) Said instruction is ambiguous and confusing. The instruction is more confusing than enlightening and it was, therefore, error to give it. White v. National Lead Co. (Mo. App.), 99 S.W. (2d) 535, 540. (b) The instruction submits the duty of a carrier while a passenger is alighting which was outside the pleadings and evidence. There was no pleading nor evidence of any matter of complaint while plaintiff was alighting from the train. Instructions must be within the pleadings and evidence and not broaden the issues. Mitchell v. Wabash Ry. Co. (Mo.), 69 S.W. (2d) 286, 290. (c) By the words "and further entitled to be safely delivered at the destination," said instruction made defendant an insurer of plaintiff's safety. A common carrier is not an insurer. Craig v. United Railways, 175 Mo. App. 616, 622; Stauffer v. Railroad, 243 Mo. 305, 317. (d) Said instruction does not require a finding that any of the acts therein hypothesized constituted negligence on defendant's part. It was error not to require such a finding as a prerequisite to a verdict. See authorities cited under Subdivision (b), Point 3, of this brief, supra. (8) The trial court erred in giving plaintiff's Instruction No. (5) because: (a) Said instruction is too long, ambiguous and confusing. Said instruction consists of one sentence seventy-seven lines long and covering two and one-half pages of the printed record. Its only effect would be to confuse the jury. See authorities cited under Subdivision (b), Point 2, of this brief, supra. (b) Said instruction required no finding that the acts theren hypothesized constituted negligence on defendant's part. See authorities cited under Subdivision (b), Point 3, of this brief, supra. (c) There was not sufficient evidence of injuries to justify submission of the question of injuries. See authorities cited under Subdivision (c), Point 1, of this brief, supra. (d) Said instruction submitted the question of plaintiff being "forced" to ride on the...
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