State ex rel. St. Louis-San Francisco Ry. Co. v. Cox

• Decision Date: 01 December 1931
• Docket Number: 30957
• Citation: 46 S.W.2d 849,329 Mo. 292
• Parties: The State ex rel. St. Louis-San Francisco Railway Company v. Argus Cox et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

46 S.W.2d 849

329 Mo. 292

The State ex rel. St. Louis-San Francisco Railway Company v. Argus Cox et al., Judges of Springfield Court of Appeals

No. 30957

Supreme Court of Missouri

December 1, 1931

Rehearing Overruled February 17, 1932.

Certiorari to Springfield Court of Appeals.

Writ quashed.

E T. Miller and Mann, Mann & Miller for relator.

The opinion of respondents is in conflict with the latest controlling decisions of this court in the following particulars: (1) The defects in the hook of the chain were open and obvious and the risks and dangers attending the use thereof were such as to be readily apparent to the man of ordinary prudence. Plaintiff, therefore, under the controlling decisions of this court, in using this chain when another was equally available, assumed the risks as a matter of law. Osborn v. Railroad, 1 S.W.2d 189; Russell v. Railroad, 316 Mo. 1303, 295 S.W. 102; Hoch v. Railroad, 315 Mo. 1199, 287 S.W. 1051; Quigley v. Hines, 291 Mo. 22, 235 S.W. 1052; Martin v. Railroad, 30 S.W.2d 741; Emery v Railroad, 296 Mo. 674, 246 S.W. 337; Pryor v. Williams, 254 U.S. 43; McAdoo v. Auzellotti, 271 F. 268; Union Pacific Railroad v. Maroue, 246 F. 916. (2) Errors occurring in the trial are presumed to be prejudicial and the judgment must be reversed and the cause remanded unless such error is affirmatively shown to have been harmless. Aronovitz v. Arky, 219 S.W. 624; Haynes v. Trenton, 123 Mo. 326; Langston v. Railroad, 147 Mo. 457; Dayharsh v. Railroad, 103 Mo. 570; Nixon v. Railroad, 141 Mo. 425; Jones v. Publishing Co., 240 Mo. 200; Morris v. Railway, 144 Mo. 500; State ex rel. Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 724; Theobold v. Transit Co., 191 Mo. 395. The statute referred to by respondents prohibiting appellate courts from reversing a judgment for errors "that did not appear to have influenced the verdict" is not inconsistent with the rule that such errors are presumed to be prejudicial. Aronovitz v. Arky, 219 S.W. 624; Cottrill v. Krum, 100 Mo. 397. (3) The fact, referred to by respondents, that the same verdict was reached on the second as on the first trial is immaterial. The errors assigned must be considered "upon their merits," without regard to the result of former trials. Langston v. Railroad, 147 Mo. 457. (4) The question whether respondents were justified in holding that error was committed is not before this court in this proceeding. The question here is limited to the one as to whether respondents were in conflict with the decisions of this court in affirming the judgment, notwithstanding such error. If the holding of respondents, that error was committed, could be questioned here, that holding finds ample support in the following decisions of this court: Atkinson v. United Railways Co., 286 Mo. 634, 228 S.W. 485; Chawkley v. Railroad, 317 Mo. 782, 297 S.W. 30; Monroe v. Railroad, 27 Mo. 633, 249 S.W. 646; Henry v. Railroad, 282 S.W. 425; Cottrill v. Krum, 100 Mo. 397. (5) Reference having been made in the present opinions to the opinion on the former appeal, the latter becomes a part of the opinion brought to this court by writ of certiorari. State ex rel. Kansas City v. Ellison, 281 Mo. 667; State ex rel. Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; State ex rel. Heine v. Robertson, 188 S.W. 102.

Sizer & Gardner for respondents.

(1) This court is now concerned only with the alleged conflict of respondents' opinion with previous controlling decisions of this court. This court is not concerned with the correctness of respondents' opinion, nor whether respondents properly applied the law to the facts stated in their opinions. State ex rel. Life Ins. Co. v. Allen, 303 Mo. 608; State ex rel. Life Ins. Co. v. Allen, 243 S.W. 841; State ex rel. Life Ins. Co. v. Reynolds, 235 S.W. 88. (2) A clear conception of the law of assumption of risk as declared by this court eliminates any ground of complaint against respondents' opinion. This court has consistently recognized the two classes of risks under the Federal Employer's Liability Act. These risks are known as ordinary and extraordinary risks, and in determining whether an employee has assumed the risk, this court has clearly classified the risk to which he was exposed, as ordinary, or extraordinary. Oglesby v. Railroad, 318 Mo. 79, 1 S.W.2d 178; McIntyre v. Railroad, 286 Mo. 256; Harbacek v. Fulton Iron Works Co., 229 S.W. 806; Patrum v. Railroad, 258 Mo. 121; Johnson v. Brick & Coal Co., 276 Mo. 53. "Such risks are plainly incidental to the employment, and is such an injury as is liable to occur at any time during the performance of the work undertaken, unaided in any degree by the negligence of the employer." Whether or not the defect or danger is open and obvious to the employee is immaterial so long as the risk to which he is exposed is an ordinary risk incident to his employment. He is conclusively held to know and appreciate all risks and dangers arising from ordinary risks, whether or not the same are known by him or are open and obvious. A different rule, however, obtains with regard to extraordinary risks. An extraordinary risk is one which is created by the master's negligence. Lock v. Railroad, 281 Mo. 540; Westover v. Wabash, 6 S.W.2d 847; Oglesby v. Railroad, 1 S.W.2d 178. (3) Respondents dealt with the question of assumption of risk only in their first opinion. Plaintiff's foreman knew for a month before the accident that the hook was bent and spread apart. Defendant furnished a regular inspector for the tools and they were inspected by him daily. Plaintiff obtained the chain from a nearby employee and carried it to his car. He did not inspect it before using it, but assumed that it was fit for use, and did not know there was anything wrong with the chain until after the accident. Therefore, plaintiff had no actual knowledge of any defects in this particular chain and the only opportunity he had for discovering defects was while he handled same in placing it across the end of the car. No conflict with decisions of this court exists. Plaintiff was not obliged to use even ordinary care to discover dangerous defects, and knowledge will not be imputed to him unless the defects were plainly observable. The O'Donnell case, 26 S.W.2d 934. The employee is never held to assume such risks until and unless a sufficient time and opportunity elapses after the commission of the negligent act or the presence of such defect for opportunity of the injured person to know thereof and appreciate the dangers arising therefrom. Railroad v. Ward, 252 U.S. 18, 62 L.Ed. 430; Reed v. Director General, 258 U.S. 96, 64 L.Ed. 480; Pope v. Terminal Ry. Assn., 254 S.W. 43; Preston v. Railroad, 292 Mo. 442; Standard Portland Cement Co. v. Foley, 270 F. 202. (4) Respondents held that the remarks of counsel complained of, was error, and further held: "It is not probable that the misconduct of counsel at the last trial affected the result." And, "We are unable to say that such misconduct affected the result." The former trial, at which this error did not appear, resulted in a verdict for the same amount. Respondents did not refuse to follow the rule announced by this court that error is presumptively prejudicial, which is not applicable to this case, but held under the facts that no such prejudice resulted from the error complained of. This holding does not conflict with any opinion of this court. Relator cites six cases with which it is claimed respondents' opinion conflicts. They each and all deal with error in the giving of instructions. None of them deal with error in argument or conduct of counsel. A different rule applies to the two classes of cases. The rule that error is presumptively prejudicial as announced by this court has been limited in its application to error in declaring the law of the case or in the admission of improper testimony. This rule has never been applied to alleged error in the argument or conduct of counsel. On the other hand, this court recently held, in Bobos v. Krey Packing Co., 19 S.W.2d 634, that "remarks and argument of counsel, however improper or impertinent, do not constitute reversible error, unless prejudice to the opposing side results." See also Irons v. Am. Railway Express Co., 318 Mo. 337; with such alleged error, in quoting with approval. Wendler v. Peoples, etc., Co., 165 Mo. 542; Allen v. Autenrieth, 280 S.W. 79; Gettys v. Am. Car & Foundry Co., 16 S.W.2d 90.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Certiorari to review and have quashed the opinion of respondents in a case wherein Collie L. Hankins was plaintiff and the St. Louis-San Francisco Railway Company, relator here, was defendant. The case was twice tried and appealed the plaintiff recovering judgment for $ 7500 on each trial. On the first appeal respondents reversed the judgment and remanded the cause for error in an instruction. The opinion on that appeal is reported in 14 S.W.2d 674. On the second appeal respondents first adopted an opinion reversing and remanding the cause for improper remarks of plaintiff's counsel in argument to the jury, but on a rehearing modified it and affirmed the judgment. The opinion finally promulgated by respondents, affirming the judgment, is reported in 31 S.W.2d 596. It is this last opinion, which we shall refer to as the second opinion, which relators seek to have quashed, claiming that it is in conflict with certain decisions of this court. Conflict is alleged in two particulars: first, the holding by respondents that the question of assumption of risk, an issue in the case, was for the jury under the evidence; second, their holding that the remarks of counsel in argument, while improper, did not constitute reversible error.

Respondents in their second opinion refer to their...