Poague v. Kurn

• Citation: 140 S.W.2d 13,346 Mo. 153
• Decision Date: 07 May 1940
• Docket Number: 36338
• Parties: Vernon K. Poague, Appellant, v. J. M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, a Corporation
• Court: Missouri Supreme Court

140 S.W.2d 13

346 Mo. 153

Vernon K. Poague, Appellant, v. J. M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, a Corporation

No. 36338

Supreme Court of Missouri

May 7, 1940

Motion for Rehearing Overruled May 7, 1940.

Appeal from Barton Circuit Court; Hon. Thomas W. Martin Judge. Opinion filed at September Term, 1939, March 6, 1940 motion for rehearing filed; motion overruled at May Term 1940, May 7, 1940.

Affirmed.

E. L. Moore and Sizer & Myres for appellant.

(1) The court erred in failing to give and read to the jury plaintiff's requested Instruction 6. This instruction would have submitted to the jury primary negligence of the defendants in operating their passenger train at a fast and dangerous rate of speed, in violation of a city ordinance of Neosho, No. 1128, limiting the speed of trains within the corporate limits to twenty miles per hour. This allegation of negligence was pleaded and the uncontroverted evidence was conclusive that the defendants had flagrantly violated this ordinance. Todd v. St. L.-S. F. Ry. Co., 37 S.W.2d 557; Stegner v. M., K. & T. Ry. Co., 333 Mo. 1182, 64 S.W.2d 691; Gratiot v. Mo. Pac. Ry. Co., 116 Mo. 450; Riska v. Union Depot Ry. Co., 180 Mo. 168; Yonkers v. Railroad, 182 Mo.App. 558; Hutchinson v. Mo. Pac. Ry. Co., 161 Mo. 246; Brown v. Alton Ry. Co., 132 S.W.2d 713; Unterlachner v. Wells, 317 Mo. 181; Weller v. C., M. & St. P. Ry. Co., 164 Mo. 180; Ruenzi v. Payne, 208 Mo.App. 113; Pentecost v. St. Louis & Merchants Bridge Term. Co., 334 Mo. 572, 66 S.W.2d 533; Herrell v. St. L.-S. F. Ry. Co., 18 S.W.2d 481. (2) The court erred in failing to give and read to the jury plaintiff's requested Instruction 5. This instruction would have submitted to the jury the primary negligence of the defendants in failing to give the statutory signals by bell or whistle. This act of negligence was pleaded, and there was abundance of evidence to show that the defendants had failed to perform this statutory duty. Dyer v. K. C. So. Ry. Co., 25 S.W.2d 508; Weigman v. Railroad, 223 Mo. 719; Logan v. C., B. & Q. Ry. Co., 300 Mo. 611. (3) The court erred in holding in effect that the plaintiff was guilty of contributory negligence as a matter of law; when the evidence shows, under all the facts and circumstances, the question of his contributory negligence was one upon which reasonable men might arrive at different conclusions, and was a jury question. Ruenzi v. Payne, 208 Mo.App. 113; Petty v. Hannibal & St. Joseph Ry. Co., 88 Mo. 306; Kenney v. Hannibal & St. Joseph Ry. Co., 105 Mo. 270; Deitring v. St. Louis Transit Co., 109 Mo.App. 524; Jennings v. St. L., I. M. & S. Ry. Co., 112 Mo. 268; Weller v. C., M. & St. P. Ry. Co., 120 Mo. 635, Id., 164 Mo. 180; Smith v. C., B. & Q. Ry. Co., 15 S.W.2d 794; Welch v. Michigan Cent. Ry. Co., 110 N.W. 1070; Kinghorn v. Penn. Ry. Co., 47 F.2d 588. (4) The court erred in giving and reading to the jury defendants' Instruction D which told the jury that the engineer or fireman had a right to assume that the plaintiff would use "due care" in approaching the crossing, and bringing to the jury's attention the antecedent negligence of the plaintiff, when plaintiff was forced to submit his case solely under the humanitarian doctrine. This instruction is erroneous in many other respects as will be shown in our argument. It is clearly in conflict with plaintiff's Instruction I. Larey v. Mo., K. & T. Ry. Co., 33 Mo. 949, 64 S.W.2d 681; Shumate v. Wells, 320 Mo. 536; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Elliott v. Railroad, 105 Mo.App. 523; Lynch v. Baldwin, 117 S.W.2d 273; Smith v. Wells, 31 S.W.2d 1014; Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 673; Banks v. Morris & Co., 302 Mo. 267. (a) Where danger zone commenced for plaintiff in crossing defendants' tracks was a question for the jury, and defendants' instruction was erroneous in limiting the danger zone to the place where the car was in "danger of being struck by the train." Hencke v. St. Louis & H. Ry. Co., 72 S.W.2d 799; Kloeckner v. St. L. Pub. Serv. Co., 53 S.W.2d 1043; Homan v. Mo. Pac. Ry. Co., 64 S.W.2d 617. (b) The instruction is further erroneous in that it limits the warning to be given to just the whistle, when the law requires both the whistle and the bell to be given under the humanitarian rule. Rollison v. Railroad, 252 Mo. 525; Perkins v. Term. Ry. Assn., 102 S.W.2d 915; Althage v. Motor Bus Co., 320 Mo. 598. (5) The court erred in allowing attorneys for the defendants to continually argue the antecedent and contributory negligence of the plaintiff and contrary to the issues submitted by the court, which was solely the humanitarian doctrine of negligence. Hencke v. St. Louis & H. Ry. Co., 72 S.W.2d 799; Kloeckner v. St. L. Pub. Serv. Co., 53 S.W.2d 1043; Homan v. Mo. Pac. Ry. Co., 64 S.W.2d 617; Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 673. (6) The court erred in permitting the attorney for the defendants in his argument to the jury to comment upon the absence of the witness, Dr. O. A. Sale, when the deposition of this witness was taken by the plaintiff and cross-examined by the defendants' attorneys, said deposition having been filed in the case and read to the jury both by the plaintiff and the defendants; that said witness was known to be a Frisco doctor who was not only at the time of the taking of the deposition in the employ of the Frisco Railroad and riding upon a free pass, but was also the Frisco doctor at the time of the trial, and residing in Newton County; that the court refused to sustain the plaintiff's objection to such argument and stated, before the jury, that plaintiff's counsel would be allowed to answer defendants' counsel; that thereafter, in the presence of the jury, plaintiff's counsel attempted to tell the jury why the witness, Dr. Sale, had not been brought by the plaintiff to the trial, and defendants' counsel objected to plaintiff's attorney answering this previous statement, and was sustained by the court in the presence of the jury, and in sustaining said objection, made prejudicial remarks to the jury. Thompson v. Morgan Hauling & Express Co., 26 S.W.2d 807; Duncan v. City Ice Co., 25 S.W.2d 536; Murphy v. Tumbrink, 25 S.W.2d 133; Cooper v. Met. Life Ins. Co., 94 S.W.2d 1070; Husky v. Met. Life Ins. Co., 94 S.W.2d 1075; Elliott v. Grand Lodge, Brotherhood of Ry. Trainmen, 95 S.W.2d 829; Atkinson v. United Rys. Co., 286 Mo. 634, 228 S.W. 483; State ex rel. St. L.-S. F. Ry. Co. v. Cox, 339 Mo. 821, 99 S.W.2d 841.

J. W. Jamison, J. Carrol Combs and Mann & Mann for respondents.

(1) If the appellant shall fail to set forth in his abstract of the record so much of the testimony as is necessary to a complete understanding of all the questions presented for decision, as required by Rule 13, the court will dismiss the appeal. Rule 16, S.Ct. (2) Because of appellant's failure properly and fully to abstract the testimony, the appeal should be dismissed. Brand v. Cannon, 118 Mo. 598; Redler v. Travelers Ins. Co., 342 Mo. 677, 117 S.W.2d 243; Bertke v. Hoffman, 330 Mo. 584, 50 S.W.2d 108; Craven v. Midland Milling Co., 228 S.W. 514; Colorado Milling & Elevator Co. v. Rolla Wholesale G. Co., 102 S.W.2d 681; Gorka v. Gorka, 295 S.W. 516, 221 Mo.App. 1033; Breck v. Koeneman, 108 S.W.2d 994; Shelley v. Ozark Pipe Line Corp., 247 S.W. 472. (3) Where the point raised on appeal is as to the sufficiency of the evidence to support an allegation of negligence in the petition, all of the testimony must be set forth in the abstract of the record. Bertke v. Hoffman, 330 Mo. 584, 50 S.W.2d 108; Redler v. Travelers Ins. Co., 342 Mo. 677, 117 S.W.2d 244; Whitehead v. St. Louis, I. M. & S. Ry. Co., 176 Mo. 479; Weintraub v. Lincoln L. I. Co., 99 S.W.2d 163; Smith v. Wilson, 296 S.W. 1039; Shelley v. Ozark Pipe Line Corp., 247 S.W. 472. (4) The rule that in determining the sufficiency of the evidence to support an allegation of negligence in the petition, only the testimony most favorable to the plaintiff will be considered, does not excuse the failure to properly and fully abstract the testimony. Bertke v. Hoffman, 330 Mo. 584, 50 S.W.2d 108; Craven v. Midland Milling Co., 228 S.W. 516; Weintraub v. Lincoln L. I. Co., 99 S.W.2d 163. (5) It is for this court and not for counsel to say whether the testimony omitted from the abstract of the record is pertinent. Bertke v. Hoffman, 330 Mo. 584, 50 S.W.2d 108; Redler v. Travelers Ins. Co., 342 Mo. 677, 117 S.W.2d 245; Colorado Milling & Elevator Co. v. Rolla Wholesale G. Co., 102 S.W.2d 682. (6) Respondent is not required to supply the omission by filing an additional abstract of the record. All that is required is that they make a showing before this court that material portions of the record have been omitted from the abstract of the record. Weintraub v. Lincoln L. I. Co., 99 S.W.2d 163. (7) Defects in appellant's abstract of the record cannot be corrected after respondent has attacked it by motion. Barham v. Shelton, 221 Mo. 69, 119 S.W. 1089; Harding v. Bedoll, 202 Mo. 637, 100 S.W. 638; Brown v. O'Bryan, 217 S.W. 601; LeClair v. LeClair, 77 S.W.2d 863; Wright v. Met. Life Ins. Co., 122 S.W.2d 376; Bank of Kennett v. Tatum, 340 Mo. 198, 100 S.W.2d 475.

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

OPINION

HYDE

This is an action for $ 50,000.00 damages, for personal injuries sustained when plaintiff's automobile was struck by defendants' train. The jury found the issues for defendants. Plaintiff has appealed from the judgment for defendants.

Defendants have filed a motion to dismiss because of the omission, from plaintiff's abstract, of exhibits and the testimony of some of defendants' witnesses. Since it appears that there was an agreement for filing the...