Simpson v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 13 February 1917
• Docket Number: No. 17648.,17648.
• Court: Missouri Supreme Court
• Parties: SIMPSON v. CHICAGO, R. I. & P. RY. CO.

192 S.W. 739

SIMPSON v. CHICAGO, R. I. & P. RY. CO.

No. 17648.

Supreme Court of Missouri. In Banc.

February 13, 1917.

Rehearing Denied February 24, 1917.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Willard P. Simpson against the Chicago, Rock Island & Pacific Railway Company. From an order granting plaintiff a new trial after verdict for defendant, the latter appeals. Order affirmed, and cause remanded for new trial.

Paul E. Walker, of Topeka, Kan., and Sebree, Conrad & Wendorff, of Kansas City, for appellant. Boyle & Howell, Geo. L. Boyle, Wm. T. Woodford, and Joseph S. Brooks, all of Kansas City, for respondent.

WALKER, J.

Plaintiff sued to recover for injuries alleged to have been received by him while a passenger on one of defendant's railway trains. Upon a trial there was a verdict for the defendant, and upon the sustaining of plaintiff's motion for a new trial defendant appealed.

Plaintiff's injuries were caused by the derailment of a car due to the spreading or displacement of a rail. The nature of plaintiff's relation to the defendant at the time of the injuries and the cause of same, so far as concerns our review, have been determined. The vexed question now confronting us is as to the action of the trial court in giving certain instructions. On behalf of the plaintiff the following instruction was given:

"(1) The court instructs the jury that if you believe and find from the evidence that the plaintiff was a passenger upon a train of defendant at the time he claims to have been injured, then, having received plaintiff upon board of such train, the due obligation of defendant to plaintiff was to use the highest degree of care practicable among prudent, skillful, and experienced men in that same kind of business, to carry him safely, and a failure of the defendant, if you believe there was a failure, to use such highest degree of care would constitute negligence on its part, and defendant would be responsible for all injuries resulting to plaintiff, if any, from such neglect, if any. And if you believe from the evidence that said train on which plaintiff was a passenger (if you believe he was a passenger thereon) was wrecked at a point near the town of Leslie, Mo., the presumption is that said train was so wrecked by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part; that the injury, if any, was occasioned by inevitable accident, or by some cause which such degree of care could not have avoided."

On behalf of the defendant the court gave the following instruction:

"(2) The court instructs the jury that the burden is upon the plaintiff to prove his case by a preponderance, that is, the greater weight, of the credible testimony, and this burden remains upon the plaintiff throughout the trial of the case, and if at the close of all the evidence, the evidence is evenly balanced or preponderates in favor of the defendant, then your verdict must be for the defendant."

It is the duty of a carrier to keep its track in such a condition as to insure the safety of persons traveling as passengers in its cars. Failure to so do, resulting in an injury to a passenger creates a presumption of negligence on the part of the carrier. In the presence of facts authorizing this presumption it becomes the duty of the defendant to explain the accident in such a manner as to free himself from negligence. Whether he succeeds in so doing is a question of fact for the jury. Craig v. U. Rys. Co., 185 S. W. 205; Brown v. Railroad, 256 Mo. 522, 165 S. W. 1060.

Plaintiff proved that he was a passenger and while sustaining this relation to the defendant the car in which he was riding was derailed, and by reason thereof he was injured. These facts established a prima facie case of liability on the part of the defendant, and it became its duty to rebut the presumption thus created by explaining the accident in a manner consistent with that high degree of care required of it under the circumstances. Whether it succeeded in so doing was a question for the jury.

The defendant offered no testimony in explanation of the accident. The derailment, therefore, and the defective condition of the track were conceded. Under this state of facts the instruction given at the instance of the plaintiff correctly declared the law. It is true it employs the terms "burden of proof" as being cast upon the defendant to rebut the presumption of negligence on its part that the injury, if any, was occasioned by inevitable accident, or by some cause which such care as was required of the defendant could not have avoided; but this was not error. Generally by "burden of proof" is meant either: (1) The necessity of proving the facts which will sustain the issues made by the petition; or (2) the necessity which rests on a party at any time during a trial to create a prima facie case in its own favor or to overthrow one made against him.

The court in recent cases has drawn a distinction between the meaning of the words "burden of proof" "burden of evidence," applying the latter to the second definition noted, on account of the ambiguity arising from the use of the word "proof." There has never been any serious confusion, however, arising from such use, nor has it been held that the burden of the affirmative issues made by the plaintiff ever shifted; but it has been held, and correctly so, that where an affirmative defense is set up, the burden of establishing same, whether termed "of proof" or "of evidence," is cast upon the defendant. This is all the instruction requires. In short, as we have said in numerous cases, "a defendant, having alleged a fact, is required to prove it." Richardson v. George, 34 Mo. 104; St. Louis Tow. Co. v. Orphans' Ben. Ins. Co., 52 Mo. 529; Lemon v. Chanslor, 68 Mo. loc. cit. 356, 30 Am. Rep. 799; Coudy v. Railroad, 85 Mo. loc. cit. 85; State ex rel. Wilson v. Mastin, 103 Mo. 508, 15 S. W. 529; Glover v. Henderson, 120 Mo. 367, 25 S. W. 175, 41 Am. St. Rep. 695.

The instruction, therefore, was ample to enable the jury to render an intelligent verdict thereunder when considered in conjunction with instruction numbered 4, given at the instance of the defendant, expressly placing the burden of proof of the issuable facts in the petition upon the plaintiff.

However, despite the sufficiency of these instructions as guides to the jury in reaching an intelligent verdict, the trial court gave in addition, at the instance of the defendant, the instruction numbered 2 which we have quoted. Considered generally in connection with the other instructions, it is not likely that it would be regarded as contradictory or misleading by the trained legal mind familiar with the rules of legal construction; but with the average jury, conversant only with the meaning of words as usually employed, the case is different. They have no measure by which to limit or intelligently construe abstract principles of law used in connection with those of a concrete nature especially applicable to the case under consideration. When, therefore, they are told by the court, as in this case, in the instruction given for plaintiff, that if they believe from the evidence that plaintiff, while being transported as a passenger on defendant's train, was injured by the derailment of one of its cars, then there arises a presumption that defendant was negligent, and it devolves upon it to rebut such presumption by showing that the derailment was the result of inevitable accident, or was due to some cause which defendant, in the exercise of that high degree of care required of it under the circumstances, could not have prevented, and, failing so to do, that plaintiff is entitled to a verdict, and at the same time the jury is told, in the instruction given at the instance of the defendant, not only that plaintiff must establish his case by the preponderance or greater weight of the credible testimony, but that this burden remains upon him throughout the trial, the lay mind of the jury, considering these instructions together, will either be confused as to their meaning or conclude that there exists an express contradiction. That such will be the result is sustained by a comparative analysis of the instructions: In the one there is a clearly defined division of burden, whether it be called of proof or of evidence; in the other the entire burden is placed upon the plaintiff from the beginning to the close of the case and the application of the doctrine of presumptive negligence applicable under the facts is ignored.

It is an elementary rule of procedure that instructions shall be clear, certain, and accurate. Scott, J., said in Morris v. Morris, 28 Mo. 114, "issues submitted to a jury should be framed in language plain and perspicuous." They should be so worded that they will not admit of more than one meaning. As Napton said in effect in Belt v. Goode, 31 Mo. 128:

An equivocal or ambiguous instruction is calculated to mislead the jury, and should not be given.

With equal force this court has condemned the giving of conflicting or contradictory instructions as not furnishing a correct guide to the jury. Hickman v. Link, 116 Mo. 123, 22 S. W. 472; Spillane v. Railroad, 111 Mo. 555, 20 S. W. 293; Bluedorn v. Railroad, 108 Mo. 439, 18 S. W. 1103, 32 Am. St. Rep. 615; Dunn v. Dunnaker, 87 Mo. 597; Greer v. Parker, 85 Mo. 107; Clark v. Kitchen, 52 Mo. 316.

In the light of reason, therefore, sustained by these and numerous other precedents, we are justified in the conclusion that the giving of instruction numbered 2 at the instance of the defendant was calculated to mislead the jury, and that the trial court ruled rightly in granting a new trial.

Aside from the contradictory terms of the instructions under review when read together, as they should be, another reason obtains, arising out of the...