Schipper v. Brashear Truck Co.

• Decision Date: 14 September 1939
• Docket Number: No. 35785.,35785.
• Citation: 132 S.W.2d 993
• Parties: SCHIPPER et al. v. BRASHEAR TRUCK CO.
• Court: Missouri Supreme Court

132 S.W.2d 993

SCHIPPER et al. v. BRASHEAR TRUCK CO.

No. 35785.

Supreme Court of Missouri, Division No. 1.

September 14, 1939.

Rehearing Denied November 3, 1939.

Appeal from Circuit Court, St. Louis County, Division No. 2; John A. Witthaus, Judge.

Action by Elroy Schipper and another, by Gregory Schipper, their next friend, against the Brashear Truck Company, a corporation, for the death of plaintiffs' father, who was struck by defendant's truck. Verdict for the defendant, and, from a judgment sustaining a motion for new trial, defendant appeals.

Reversed and remanded, with directions.

Wilbur C. Schwartz and Morton K. Lange, both of St. Louis, for appellant.

Erwin F. Vetter, of St. Louis, for respondents.

DALTON, Commissioner.

This is an action by plaintiffs who are minors, by next friend, against defendant Brashear Truck Company, a common carrier for hire, for $10,000 for wrongful death of plaintiffs' father. The petition charged negligence and carelessness in failing to exercise the highest degree of care in the operation of a motor vehicle, (1) in failing to sound the horn or give warning and (2) in operating at a high, dangerous and excessive rate of speed. There were other assignments of negligence but the cause was submitted on the first two. The answer of defendant was a general denial and a plea of contributory negligence (1) in that deceased walked from behind an east bound vehicle directly into the path of defendant's west bound tractor truck (without trailer or load) and (2) in that deceased walked into the path of said tractor truck without looking for the approach of traffic. On trial the jury returned a verdict for defendant. Plaintiff moved for a new trial, the motion was sustained, and defendant has appealed.

Plaintiffs' evidence tended to show that the accident happened on a rainy, foggy night on U. S. Highway No. 40 in the town of Gilmore, as the deceased was crossing the highway from south to north at a crossing much used by pedestrians. Plaintiffs' evidence tended to show that deceased was near the center of the highway going north when the tractor truck was some 200 feet away to the east, traveling west at a rate of speed in excess of 50 miles per hour, and that the injury and death resulted from defendant's negligence in the operation of said motor tractor. Defendant's evidence tended to show that defendant's west bound motor tractor was traveling at not to exceed 30 miles per hour and was approaching two east bound trucks which trucks were some two city blocks apart, and that as defendant's motor tractor met and passed the first truck, the deceased moved from immediately behind the said first truck directly into the path of the defendant's motor tractor and within 10 to 15 feet of same; that said motor tractor was swerved to the left to pass behind deceased but failed to miss him, and hit him with the right front fender and then went off the pavement on the south.

The record shows that the trial court assigned two grounds for sustaining plaintiffs' motion for a new trial: (1) Because the court refused certain instructions offered by plaintiffs. (2) "Because the court erred in compelling plaintiffs' counsel to testify at the request of the defendant to matters wholly immaterial, incompetent and irrelevant and prejudicial to the rights of the plaintiffs and to matters in violation of the privilege attached to information acquired as an attorney at law, and requiring plaintiffs' counsel to answer questions in the presence of the jury which were prejudicial and designed to be prejudicial and which were for the sole purpose of getting before the jury matters which were wholly incompetent, improper and prejudicial."

The instructions offered by plaintiffs and refused by the court were as follows, to-wit:

(C) "The Court instructs the jury that plaintiffs had a right to presume that no automobile would be run or driven upon a public street or highway much used for travel, at a rate of speed that would be dangerous to people who may be crossing said street or highway, at any usual or customary place for pedestrians to be crossing said public street or highway."

(D) "The Court instructs the jury that a pedestrian has the same right on a public street or highway as the driver of a motor vehicle, and that they have equal right to the use of such public street or highway."

(E) "The Court instructs the jury that the burden of proof is upon the defendant to show the plaintiff was guilty of contributory negligence, and unless he does so by a preponderance or greater weight of the evidence, then you should find for the plaintiffs on that point." (The emphasis is ours.)

A trial court has inherent power to grant a new trial irrespective of the grounds set forth in the motion for a new trial, but here the motion was sustained for reasons set forth in the motion. Trial courts have wide discretion in passing on motions for a new trial where there is error in the record but the power of the trial court to grant a new trial is discretionary only as to questions of fact and matters affecting the determination of issues of fact. Loftus v. Metropolitan Street Railway Company, 220 Mo. 470, 481, 119 S.W. 942; Houts Missouri Pleading and Practice, Volume II, page 62, § 444. In this case the motion for a new trial was sustained for certain specified reasons, and it is not contended that the motion should have been sustained for any reason not assigned. The question here presented is whether or not the record discloses error in connection with the matters assigned as grounds for sustaining the motion for a new trial. We will consider the grounds assigned and in the order stated.

We are of the opinion that Instructions C, D, and E, were properly refused. We are not called upon to determine whether or not reversible error would have been committed if any or all of said instructions had been given, but only to determine whether or not error was committed by their refusal. If the court committed no error in refusing said instructions when offered, then it was without authority to grant a new trial on account of the refusal thereof. If on the other hand the said instructions or any of them were improperly refused, we would defer to the trial court's holding that prejudice resulted to the plaintiffs on account of such refusal.

Instructions C and D are merely abstract statements of law with no effort made to apply said principles of law to the facts in the case. It has been repeatedly held that instructions merely stating abstract principles of law should not be given. Such instructions merely tend to confuse and mislead the jury. No one can know how a jury would apply said abstract propositions of law to the case at hand.

In the case of Wilsch v. Gleiforst, Mo. App., 259 S.W. 850, 852, in discussing certain instructions in that case, the Court said: "* * * some of these instructions merely state abstract propositions and afford the jury no aid in determining the issues of fact presented. There is enough danger of confusing the jury in instructions touching the issues of the case without adding thereto the consideration of instructions on mere abstract propositions of law. Such should not be given." In the case of Humphreys v. Chicago, M., St. P. & P. Railroad Co., Mo.App., 83 S.W.2d 586, 590, in dealing with an instruction stating abstract propositions of law, the court said: "It is only necessary for us to say that it should not be given at another trial for the reason, alone, if no other, that an abstract proposition of law should not be submitted to a jury." In the case of Lewis v. Kansas City Public Service Co., Mo.App., 17 S.W.2d 359, 362, by way of criticism of a certain instruction in that case, the Court said: "This instruction, in form, is merely an abstract statement of the law. The giving of such abstract instructions tends to broaden the issues, to confuse the jury and to invite error, and should not be given."

Instructions C and E use the word "plaintiffs" and "plaintiff" where the word "deceased" should have been used. Instruction E also uses the word "he" to refer to the corporation defendant. "An obvious mistake in the use of the words `plaintiff' and `defendant' in an instruction which the court gave to the jury will furnish no ground for reversal, where the proper reading of those words can be readily discerned, or (to put the matter in another form), where the mistake is so evidently clerical as to permit no possibility of error on the part of the ordinary reader." Trustees of Christian University v. Hoffman, 95 Mo.App. 488, 497, 69 S.W. 474, 476, citing cases; Campbell v. Traction Company, 178 Mo.App. 520, 529, 163 S.W. 287; Overstreet v. Street, 154 Mo. App. 546, 547, 136 S.W. 727; 46 C.J. 126, Sec. 79. See, also, State v. Meals, 184 Mo. 244, 257, 83 S.W. 442; Doebbeling v. Hall, 310 Mo. 204, 274 S.W. 1049, 41 A.L.R. 382. "Where a mistake in the use of the words `plaintiff' and `defendant' has occurred in an instruction, in circumstances which make it questionable whether or not the jury would correctly interpret the court's language, the error is fatal to judgment." Trustees of Christian University v. Hoffman, supra; Stegman v. Berryhill, 72 Mo. 307; Harrison v. Franklin, 126 Mo.App. 366, 375, 103 S.W. 585. In the instructions under consideration, we think it is questionable whether the jury would have understood that the word "deceased" was intended where the word "plaintiff" was used.

Instructions C, D, and E, however, containing the said errors were not given. They were refused.

In the case of Hogan v. Public Service Company, 322 Mo. 1103, 1112, 19 S.W.2d 707, 711, 65 A.L.R. 129, in referring to a refused instruction, the court said: "We might hold the error harmless under the facts of this case, if the instruction had been given and the respondent were complaining, * * * but when the instruction is refused the rule is different. A trial court will not be convicted of...