Sollars v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 02 April 1945 |
| Citation | 187 S.W.2d 513,239 Mo.App. 410 |
| Parties | Ella J. Sollars, a Minor, by Gladys Sollars, her next friend, v. Atchison, Topeka, & Santa Fe Railway Company et al |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Buchanan County; Hon. Emmett J Crouse, Judge.
Reversed and remanded (with directions).
Stringfellow & Garvey for appellants.
(1) The question whether the brake bracket broke was not assumed, but was submitted to the jury, by this instruction. Moore v Transit Co., 193 Mo. 411, l. c. 419, 420; Phippin v Ry., 196 Mo. 321, syl. 6, l. c. 347, 348; Kinlen v. Railroad, 216 Mo. 145, syl. 3, l. c. 161-162; Warren v. Giudici (Mo.), 50 S.W.2d 634, syl. 2, l. c. 636; Lewis v. R. Co. (Mo.), 50 S.W.2d 122, syl. 1, l. c. 124, 125; Reith v. Tober (Mo.), 8 S.W.2d 607, syl. 1, l. c. 610, 611; Cornett v. R. Co. (Mo.), 158 M. A. 360; Balauri v. Anastas (Mo.), 263 S.W. 458; Adams v. St. L. Pub. Serv. Co. (Mo.), 32 S.W.2d 100, syl. 3, l. c. 102; Moutria v. Ry. (Mo), 76 S.W.2d 427, syl. 4, l. c. 430; Rummels v. R. Co. (Mo.), 15 S.W.2d 363, syl. 3, l. c. 367, 368. (2) The jury could not have found that the breaking of the brake bracket on defendants' truck was the sole cause of the accident without at the same time finding that the brake bracket broke. Geary v. Ry., 138 Mo. 251, l. c. 259 (2d); Damman v. St. Louis, 152 Mo. 186, l. c. 198; Brady v. R. Co., 206 Mo. 509, syl. 8, l. c. 538; McMillan v. Bausch (Mo.), 234 S.W. 835, syl. 4, l. c. 837; Van Loon v. St. Louis etc. (Mo.), 6 S.W.2d 587, syl. 1, l. c. 589-590; Certiorari denied, 49 S.Ct. 31, 278 U.S. 632, 73 L.Ed. 549; Kaiser v. United Rys. Co. (Mo.), 155 M. A. 428, syl. 5, l. c. 439; Schweig v. Wells (Mo.), 26 S.W.2d 851, syl. 3, l. c. 853. (3) The Court may, in its instructions, assume the existence of an uncontroverted fact. First National Bank v. Hatch, 98 Mo. 376, syl. 1, l. c. 378; King v. Rieth (Mo.), 108 S.W.2d 1, syl. 15, l. c. 6-7; Koenig v. K. C. Rys. Co. (Mo.), 243 S.W. 118, syl. 6, l. c. 123; Hall v. Coal & Coke Co., 260 Mo. 354, syl. 4, l. c. 364, 370; State ex rel. v. Haid (Mo.), 59 S.W.2d 1057, syl. 11, l. c. 1059; Sotebier v. St. Louis, 203 Mo. 702, syl. 1, l. c. 714; Montgomery v. Hammond Pkg. Co. (Mo.), 217 S.W. 867, syl. 6, l. c. 868; Cole v. Long (Mo.), 227 S.W. 903, syl. 7, l. c. 906; St. Louis House Furn. Co. v. Stoecker, etc. (Mo.), 238 S.W. 841, syl. 4, l. c. 843; Van Leer v. Wells (Mo.), 263 S.W. 493, syl. 3, l. c. 495; Burke v. Robinson (Mo.), 271 S.W. 1005, syl. 6, l. c. 1007. (4) The evidence in this case authorized the giving of a sole cause instruction. The instruction was a good sole cause instruction and submitted to the jury every fact necessary for their determination of the case. The words "and if you further find that said accident was not the result of any negligence of the defendants as set out in plaintiff's instruction," submitted to the jury for their findings the questions whether defendants had committed whatever acts of negligence were set out in plaintiff's instructions. Borgstede v. Waldhauer, 337 Mo. 1205, 88 S.W.2d 373, syl. 12, l. c. 377 (11-13); Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366, syl. 11 and 12, l. c. 372; Boyce v. Donnelan (Mo.), 168 S.W.2d 120, syl. 1, 2, 7, l. c. 124, 125, 126; State ex rel. v. Shain, 137 S.W.2d 527, l. c. 531, last column; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742, l. c. 745-746, beginning "Ins. No. 7 read", middle last column p. 745; Johnson v. Dawidoff, 177 S.W.2d 467, syl. 5, 6, 7, l. c. 471 (5-7); Hopkins v. Highlands Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254, syl. 6, l. c. 257. (5) Where instructions for both parties submit negligence in general rather than specific terms, appellant will not be heard to complain. Carson vs. Evans, 351 Mo. 376, 173 S.W.2d 30, syl. 3, 10, 11, l. c. 31 (3), 32 (7), (9), (10, 11); Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767, syl. 3, l. c. 769 (1-3); Glader v. City of Richmond (Mo.), 121 S.W.2d 254, syl. 11, l. c. 261 (11); Ingle v. Sov. Camp (Mo.), 216 S.W. 787, syl. 5, l. c. 790. (6) An appellant will not be heard to complain of an error or omission in respondent's instruction which is common to his own instruction or when his own exhibits the same fault Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30, syl. 8, l. c. 32 (8); Lindquist v. K. C. Pub. Serv. Co., 350 Mo. 905, 169 S.W.2d 366, syl. 7, l. c. 370; Meyers v. Drake, 324 Mo. 612, 24 S.W.2d 116, syl. 13, l. c. 124; Primmer v. Amer. Car & Fdry. Co. (Mo.), 20 S.W.2d 587, syl. 5, l. c. 590 (6), 591.
Boyd, Elliott & King, for respondent.
(1) The trial court properly granted a new trial because of the giving of defendants' instruction 6. (a) The instruction was a comment on the evidence. Mayfield v. K. C. Southern R. Co. (Mo. App.), 101 S.W.2d 769, 773; Zumwalt v. Chicago & Alton R. Co., (Mo.) 266 S.W. 717, 726; Zander v. St. L. Transit Co., 206 Mo. 445, 103 S.W. 1006, 1010; Stetzler v. Met. St. Ry. Co., 210 Mo. 704, 109 S.W. 666, 668. (b) The instruction was tantamount to a demurrer to plaintiff's evidence, was confusing to the jury, and erroneously directed a verdict for defendants if the jury found "that the sole cause of the accident was the breaking of the brake bracket on defendants' truck." Kimbrough v. Chervitz (Mo. App.), 180 S.W.2d 772, 776; Payne v. Stott (Mo. App.), 181 S.W.2d 161, 164. (c) The instruction erroneously assumed that the brake bracket broke. McCombs v. Ellsberry et al. (Mo.), 85 S.W.2d 135, 138-40; Kirkham v. Jenkins Music Co. (Mo.), 104 S.W.2d 234; Alexander v. Hoenshell (Mo. App.), 66 S.W.2d 164, and authorities cited; Martin v. Woodlea Inv. Co. (Mo. App.), 226 S.W. 650, 653; oodwin v. Eugas (Mo.), 236 S.W. 50, 52-53; Barr v. Nafziger Baking Co. (Mo.), 41 S.W.2d 559, 562, and cases cited. Nor was the error rendered any less harmful by the fact that the testimony of the truck driver that the brake bracket broke was not directly contradicted. This was a contested issue, and the instruction should have submitted that the issue to the jury instead of assuming it. Payne v. Stott, supra; Connole v. East St. Louis, etc. Ry. (Mo. App.), 102 S.W. 581; Cluck v. Abe (Mo.), 40 S.W.2d 558, 559; McClellan v. St. Louis (Mo. App.), 170 S.W.2d 131, 134. (d) The instruction failed to require the jury to find that defendants could not, by the exercise of proper care, have discovered the alleged defective condition of the brake bracket. Savage v. Chicago, R. I. & P. Ry., (Mo.) 40 S.W.2d 628, 633; Tyson v. Bernhard, (Mo.) 17 S.W.2d 270; Streicher v. Mercantile Trust Co., (Mo.) 31 S.W.2d 1065. (e) The instruction was erroneous in not hypothesizing the facts which were necessary to a verdict for defendant and directed a verdict for defendant even though the jury found that the driver of the truck could have turned same and have thereby avoided running into the bus on which plaintiff was a passenger. Rosenkoetter v. Fleer, (Mo.) 155 S.W.2d 157, 160; Bootee v. K. C. Pub. Service Co., (Mo.) 183 S.W.2d 892, 896-7, and cases cited. (f) The instruction was a roving commission. Pearrow v. Thompson, (Mo.) 121 S.W.2d 811, 814-815; Clason v. Lenz, (Mo.) 61 S.W.2d 727; Watts v. Moussette, (Mo.), 85 S.W.2d 487; Lunsford v. Macon Produce Co. (Mo. App.), 260 S.W. 781.
This is an action brough by the plaintiff, by her next friend, in the Circuit Court of Buchanan County for damages for personal injuries claimed to have been sustained by plaintiff through the alleged negligence of appellants in causing and permitting their automobile truck to run into the rear of an electirc motorbus in St. Joseph, in which respondent was, at the time, riding as a passenger. There was a verdict for the defendants. Motion for new trial was sustained on the sole ground assigned by the trial court that "the court erred in giving Intruction No. 6 offered by defendants." Appellants appealed from the order of said court in so sustaining the motion for new trial.
Respondent and appellants were, respectively, plaintiff and defendants below, and will be so referred to hereinafter.
The petition alleges, in substance, the minority of the plaintiff, the appointment of next friend, the employment at the time in question of defendant Hanway by the remaining defendants, the appointment of the trustee defendants named, the joint engagement by the defendants, except Hanway, in the joint ownership and operation of the motor truck hereinafter mentioned. It alleges that on December 27, 1943, while plaintiff was riding as a passenger on a bus of the St. Joseph Railway, Light, Heat & Power Company, she was injured by the careless and negligent operation by defendants of a truck owned by defendants (except Hanway); that it was operated for said defendants at the time by Hanway, acting for himself and as agent and servant of the other defendants; that said truck was carelessly and negligently permitted by defendants to run violently into and against the said motorbus as said bus was stopped or was stopping for passengers at the northwest corner of 12th Street and Garfield Avenue in St. Joseph, Missouri. The petition alleges in detail the injuries claimed by plaintiff to have been so sustained.
The answer was a general denial.
The substance of plaintiff's evidence in so far as the same may be essential to the point herein made, was as follows the plaintiff, a girl of seventeen years of age, was, on September 27, 1943, a passenger on a trolley coach or bus of the St. Joseph Railway, Light, Heat & Power Company, en route to her home in St. Joseph, Missouri, and as this coach was making a stop at the northwest corner of 12th Street and Garfield Avenue in said city, defendants' truck violently collided with the rear of the coach and inflicted the injuries of which plaintiff complains. Plaintiff and...
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