State ex rel. Terminal R. Ass'n of St. Louis v. Hostetter

• Decision Date: 08 August 1938
• Docket Number: 34692
• Parties: State of Missouri at the relation of the Terminal Railroad Association of St. Louis, a Corporation, Relator, v. Jefferson D. Hostetter, William D. Becker and Edward J. McCullen, JJ
• Court: Missouri Supreme Court

119 S.W.2d 208

342 Mo. 859

State of Missouri at the relation of the Terminal Railroad Association of St. Louis, a Corporation, Relator, v. Jefferson D. Hostetter, William D. Becker and Edward J. McCullen, JJ

No. 34692

Supreme Court of Missouri

August 8, 1938

Writ quashed.

T M. Pierce, J. L. Howell and Walter N. Davis for relator.

(1) The St. Louis Court of Appeals in its opinion, ruling and judgment erred in ruling and deciding that it was not error and that the trial court did not commit error in permitting the case to go to the jury, and plaintiff to argue same without any instruction or instructions for plaintiff except on the measures of damages, in view of the fact that no instruction was given by the court of its own motion or at the request of defendant hypothesizing a theory of negligence upon which plaintiff might recover. Dorman v. E. St Louis Ry. Co., 75 S.W.2d 854; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66; Freeman v. Berberich, 60 S.W.2d 393. (2) The St. Louis Court of Appeals in its opinion, ruling and judgment erred in ruling and deciding that it was not error and that the trial court did not commit error in refusing to permit defendant's counsel to argue to the jury that plaintiff had not offered an instruction advising the jury why he thought defendant was negligent, and that it could not be told from any instruction in the case on what theory plaintiff hoped to recover, and that plaintiff hasn't got faith enough in his case to tell the jury why he thought defendant was negligent. Dorman v. East St. Louis Ry. Co., 75 S.W.2d 854.

Eagleton Waechter, Yost, Elam & Clark for respondents.

(1) In a proceeding of this character, the authority, duty and prerogative of this court is limited to a determination of whether, with regard to respondents' opinion in Brown v. Terminal Railroad Assn., 85 S.W.2d 226, and this court's opinion in Dorman v. E. St. Louis Ry. Co., 75 S.W.2d 854, there is "actual conflict between statements of general principles of law clearly intended as such, or between rulings pertinent, necessary to, and within the scope of the matters presented for review." State ex rel. Gatewood v. Trimble, 333 Mo. 207, 62 S.W.2d 756; State ex rel. Hauck Bakery Co. v. Haid, 62 S.W.2d 400. (2) There is no conflict between the statements of the general principles of law announced in the Brown case, supra, and the Dorman case, supra, nor in the rulings applying such principles. Both cases announce the principle that when it is apparent to a trial judge that the nature of the case is such that the jury should be instructed, he should see that such is done, and a failure to do so is prima facie error, and in applying the principle, both of those decisions ruled that the evidence and instructions given for defendant were such that no prejudice resulted to defendant from plaintiff's failure to request instructions hypothesizing a theory of recovery, and the error, if any, was not reversible error. Dorman v. E. St. Louis Ry. Co., 75 S.W.2d 854; Brown v. Term. Railroad Assn., 85 S.W.2d 226; Arnold v. May Dept. Stores Co., 85 S.W.2d 748; Christopher v. C., B. & Q. Ry. Co., 55 S.W.2d 449; Ternetz v. St. Louis Lime & C. Co., 252 S.W. 65. (3) There could be no conflict between the decision and opinion of this court in the Dorman case and the respondents' opinion in the Brown case because the decision and ruling in the Dorman case, which was promulgated in 1934, was prospective only, and not retrospective, in its effect and operation, and the Brown case was tried in 1933, long prior to the decision in the Dorman case. R. S. 1929, sec. 967; State ex rel. May Dept. Stores Co. v. Haid, 327 Mo. 567, 38 S.W.2d 44; State ex rel. Midwest Pipe & Supply Co. v. Haid, 330 Mo. 1093, 52 S.W.2d 183; State ex rel. Blackmer & Post Pipe Co. v. Rosskopf, 331 Mo. 793, 55 S.W.2d 287; Eberle v. Koplar, 85 S.W.2d 949; Buchanan v. Rechner, 62 S.W.2d 1071; Steinberg v. Merchants Bank, 67 S.W.2d 63.

Ellison, J. All concur, except Douglas, J., not sitting because not a member of the court when cause was submitted.

OPINION

ELLISON

Certiorari to the judges of the St. Louis Court of Appeals bringing up the record in Brown v. Terminal Railroad Assn., 85 S.W.2d 226 (hereinafter called the Brown case), wherein the plaintiff recovered a judgment against the relator Terminal Railroad Association in the Circuit Court of the City of St. Louis in October, 1933, for $ 7500 damages for personal injuries sustained in a collision between the automobile he was driving and one of the relator's freight trains in East St. Louis, Illinois. On appeal the respondents affirmed that judgment.

The two assignments of conflict are that respondents' opinion ruled it was not reversible error for the trial court: (1) to permit plaintiff to go to the jury without any instructions hypothesizing his theory of relator's negligence, the only instruction given at his request being one on the measure of damages; (2) and to deny relator's counsel the right to comment in their argument to the jury on plaintiff's failure to offer such instructions. Relator contends these rulings contravene the following decisions of this court: Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Dorman v. E. St. L. Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66.

The facts in the Brown case, as disclosed in respondents' opinion, were that about 2:30 a. m. on a dark night in a drizzling rain the plaintiff was driving an automobile along Illinois State Highway No. 4 in East St. Louis at a point where it crosses relator's railroad tracks approximately at right angles. A string of box cars was standing on one of the railroad tracks ten or fifteen feet from the highway intersection. There were no lights on the freight cars, no trainmen on guard and no warning signals -- nothing to indicate they were attached to a locomotive at the other end and about to be moved. There were twenty cars in the train making its length approximately 800 feet. Plaintiff saw the cars standing there and after stopping his automobile drove on across the tracks when the freight cars backed up and struck the right rear fender of the automobile pushing or dragging it forty or fifty feet. Then the train stopped. The plaintiff got out and endeavored to extricate his fellow passenger from the automobile. While so engaged, the train started forward dragging the automobile and the plaintiff back to within six or eight feet of the crossing.

The negligence of the trainmen as charged in plaintiff's petition was: (1) failure to keep a lookout; (2) failure to give any signal or warning of the movement of the train; (3) failure to stop or slacken the speed of the train to avert the collision, or to keep the same stopped and motionless; (4) violation of the Illinois last chance doctrine, in that relator's trainmen saw or by the exercise of ordinary care could have seen the plaintiff in a position of imminent peril in time to have avoided the collision by stopping or slowing up the train or by giving warning signals; (5) pushing the automobile back after it was struck, and dragging it and the plaintiff forward after the train had stopped the first time; (6) movement of the train without sounding bell or whistle eighty rods from the crossing, as required by the Illinois statute; (7) failure to have a brakeman stationed on the rear of the train; (8) failure to have a light on the rear of the train. There were still other assignments of negligence but they were withdrawn by instructions from the consideration of the jury.

Much of relator's brief is devoted to a discussion of the merits of the case and an effort is made to demonstrate that the evidence failed to support many of the specifications of negligence pleaded in the petition. Relator's theory in this connection is that if plaintiff had asked instructions on these several unsupported assignments of negligence the trial court would have been compelled to refuse them, and thus would have excluded from the case the issues covered by them; but that since he was permitted to submit his case without any instructions (except on the measure of damages) he was left free to argue all these unproven charges to the jury. Relator stresses these facts as showing the grievous error in such broadside submissions without instructions, and further says the practice of trying cases that way has become a "racket" in St. Louis. Proper objections were made and exceptions saved but relator did not, as appears from respondents' opinion, ask any withdrawal instructions which were denied on these assignments of negligence, except one, Instruction E, attacking the third assignment set out in the last paragraph above. And respondents held that Instruction E was properly refused.

The trial court gave six instructions at relator's request: (1) cautioning the jury against resorting to speculation or conjecture; (2) on plaintiff's contributory negligence if he failed to stop, look and listen; (3) stating that negligence is a positive wrong and cannot be presumed; (4) on the burden of proof; (5) on the proposition that mere proof of injury is no proof of negligence; and that plaintiff must show by evidence that defendant was guilty of negligence "as defined in these instructions;" (6) defining ordinary care. We shall not attempt a fuller summarization of these instructions as they were set out in the report of the Brown case in 85 S.W.2d l. c. 231.

Getting back to the basis of this original proceeding in certiorari it will be remembered the relator's contention is that respondents' opinion contravenes three decisions of this court in affirming the judgment plaintiff obtained in the circuit court by submitting his case to the jury without any instructions hypothesizing his...