State ex rel. Thompson v. Shain

• Decision Date: 06 July 1943
• Docket Number: 38402
• Citation: 173 S.W.2d 406,351 Mo. 530
• Parties: State of Missouri at the Relation of Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

173 S.W.2d 406

351 Mo. 530

State of Missouri at the Relation of Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals

No. 38402

Supreme Court of Missouri

July 6, 1943

Rehearing Denied July 20, 1943.

Opinion of Court of Appeals quashed in part.

Thos J. Cole, L. J. Bishop, D. C. Chastian and Patterson Chastian & Smith for relator.

(1) The opinion of the Court of Appeals in holding that a submissible case was made under the Kansas last clear chance doctrine is error and conflicts with controlling decisions of this court and of the Kansas Supreme Court. Bollinger v. St. L. & S. F. R. Co., 334 Mo. 720, 67 S.W.2d 985; Caylor v. St. L. & S. F. R. Co., 332 Mo. 851, 59 S.W.2d 661; Jamison v. A., T. & S. F. Ry. Co., 122 Kan. 305; Goodman v. K. C., M. & S. R. Co., 137 Kan. 508; Buchhein v. A., T. & S. F. Ry. Co., 147 Kan. 192; Bazzell v. A., T. & S. F. Ry. Co., 133 Kan. 483. (2) Said opinion, in holding that the plaintiff was not bound by his own testimony as to the location of the train and its speed, is error and conflicts with the following controlling decisions of this court: Steele v. K. C. So. R. Co., 265 Mo. 97, 175 S.W. 177; Graefe v. St. Louis Transit Co., 224 Mo. 232, 123 S.W. 835; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W.2d 864; Pentecost v. St. Louis, M. B. T. R. Co., 334 Mo. 572, 66 S.W.2d 533; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Krause v. Pitcairn, 167 S.W.2d 74; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847. (3) The opinion erred on holding that the testimony of W. J. Kluth was entitled to any probative force, and in so holding conflicts with controlling decisions of this court. Burge v. Wabash Ry. Co., 244 Mo. 76; Boring v. Met. St. Ry. Co., 194 Mo. 541. (4) The opinion erred in failing to hold that the slippery condition of the pavement was not the intervening proximate cause of the collision, and in so doing conflicts with last previous and controlling decisions of this court and of the Supreme Court of Kansas. Wood v. Wells, 270 S.W. 332; De Moss v. K. C. Rys. Co., 296 Mo. 526, 246 S.W. 566; Missouri Pac. Ry. Co. v. Columbia, 65 Kan. 390; Rodgers v. Missouri Pac. Ry. Co., 75 Kan. 222; St. L. & S. F. Ry. Co. v. Justice, 80 Kan. 10; Simon v. Mo. & Kan. Tel. Co., 97 Kan. 42; Davies v. Shawver, 134 Kan. 772. (5) The opinion, in approving plaintiff's Instruction 1, was error and conflicts with the last controlling decisions of this court and of the Supreme Court of Kansas as follows: Said instruction erroneously placed a duty upon the defendant if the plaintiff might come into a position of peril. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593; Mourning v. K. C. Rys. Co., 110 Kan. 417. (6) The opinion misconstrues the instruction as to the effect of the inclusion of the element of pushing the truck after the collision, and allows recovery for injuries so received. This conflicts with controlling decisions of this court: Clarke v. Jackson, 342 Mo. 537, 116 S.W.2d 122; Stuart v. Dickinson, 290 Mo. 516, 235 S.W. 446; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Silliman v. Munger Laundry Co., 329 Mo. 235, 44 S.W.2d 159. (7) The opinion erroneously held that errors in Instruction I were cured by defendant's Instruction G since Instruction I purported to cover the whole case and left out necessary elements. In holding that Instruction G cured the error the opinion is erroneous and conflicts with controlling decisions of this court: Macklin v. Fogel Construction Co., 326 Mo. 38, 31 S.W.2d 14; State ex rel. Fourcade v. Shain, 342 Mo. 1190, 119 S.W.2d 788; Delfosse v. United Rys. Co., 201 S.W. 860; State ex rel. Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351. (8) The Court of Appeals in considering this case was bound to follow the decisions of the Supreme Court of Kansas. In failing to do so it conflicts with the last previous and controlling decisions of this court. Woodward v. Bush, 282 Mo. 163, 220 S.W. 839; Sing v. St. L. & S. F. Ry. Co., 30 S.W.2d 37; Draper v. L. & M. R. Co., 156 S.W.2d 626. (9) The opinion of the court is based upon speculation and conjecture and thus conflicts with the controlling decisions of this court. State ex rel. K. C. So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Krause v. Pitcairn, supra. (10) The opinion, in allowing the jury to find that the motorman saw the truck from a half block away to the point of collision, and allowing a recovery to be based thereon, while finding that the plaintiff testified that due to the fog and mist he could not see over 40 feet, was erroneous and contravenes controlling decisions of this court. Bollinger v. St. L. & S. F. R. Co., supra.

W. W. McCanles and F. M. Kennard for respondents.

(1) The opinion of the Court of Appeals in holding that a submissible case was made under the Kansas last clear chance doctrine is not erroneous and does not conflict with the controlling decisions of this court and of the Kansas Supreme Court. Trower v. M. K. T. Ry. Co., 149 S.W.2d 796; Baldwin v. Devlin, 134 Kan. 844; Atkinson v. Wiard, 153 Kan. 96; Muir v. Fleming, 116 Kan. 551; Leinback v. Pickwick Greyhound Lines, 138 Kan. 50; Rosanbalm v. Thompson, 159 S.W.2d 582; Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20. (2) The opinion, in holding that plaintiff was not bound by his own testimony as to location of train and its speed, is not error and does not conflict with the controlling decisions of this court. Shepherd v. Transit Co., 189 Mo. 362; Hillis v. Home Owners Loan Corp., 154 S.W.2d 765; Cluck v. Abe, 40 S.W.2d 561. (3) The opinion did not err in holding that the testimony of W. J. Kluth was entitled to any probative force, and in so holding does not conflict with controlling decisions of this court. Wild v. Pitcairn, 149 S.W.2d 804; O'Leary v. Scullin Steel Co., 303 Mo. 363. (4) The opinion did not err in failing to hold that the slippery condition of the pavement was not the intervening proximate cause of the collision and in so doing was not in conflict with the last previous and controlling decisions of this court and the Supreme Court of Kansas. Kammer v. Loschi, 238 S.W. 1088; Saulan v. St. Joseph Ry. Co., 199 S.W. 714; Hueffsinger v. Young, 179 S.W. 747. (5) The opinion in approving plaintiff's Instruction No. 1 was not error and does not conflict with the controlling decisions of this court and of the Supreme Court of the State of Kansas. Wakubinis v. M. K. T. Ry. Co., 100 S.W.2d 464; Brown v. Kurn, 161 S.W.2d 421; Hufft v. Railroad Co., 121 S.W.2d 124; Krinard v. Westerman, 216 S.W. 943; Leinback v. Pickwick Lines, 135 Kan. 40; Rosanbalm v. Thompson, 159 S.W.2d 582. (6) The opinion does not erroneously allow the verdict to rest upon conflicting estimates and opinions of witnesses as to speed and location of the train which were at variance with the plaintiff's theory of the case, and does not conflict with the last previous and controlling decisions of this court. State ex rel. v. Shain, 159 S.W.2d 582. (7) The Court of Appeals did follow the decisions of the Supreme Court of Kansas. Muir v. Fleming, 116 Kan. 551; Leinback v. Pickwick Lines, 135 Kan. 40, 138 Kan. 50; Trower v. M. K. T. Ry. Co., 149 S.W.2d 796. (8) The opinion of the court is not based on speculation and conjecture and does not conflict with controlling decisions of this court. Trower v. M. K. T. Ry. Co., 149 S.W.2d 796. (9) The opinion did not err in taking into consideration the testimony of the motorman that he saw the plaintiff's truck a half block away, although the plaintiff testified he could not see over forty feet and did not controvene the controlling decisions of this court on that issue. State ex rel. K. C. Southern Ry. Co. v. Shain, 105 S.W.2d 915; Wolf v. N. Y. C. & St. L. R. Co., 148 S.W.2d 1032; Zickefoose v. Thompson, 148 S.W.2d 784; Leinback v. Greyhound Lines, 138 Kan. 50. (10) The opinion did not err in holding that it was in the province of the jury to find that the train could have been stopped in 62 1/2 feet and the findings of the jury is not speculative and the court's opinion does not conflict with the controlling decisions of this court on that issue. Zickefoose v. Thompson, 148 S.W.2d 790; Smith v. Thompson, 142 S.W.2d 70; Carpenter v. Kurn, 136 S.W.2d 997; Brown v. Kurn, 161 S.W.2d 421; 80 A. L. R. 619-623-634.

Tipton, J. All concur except Gantt, J., absent.

OPINION

TIPTON

This is a certiorari to the Kansas City Court of Appeals. Our writ was invoked in a case decided by that court entitled Melvin Harry v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Co., a Corporation, reported in 166 S.W.2d 795, wherein a judgment of $ 1,800, obtained by plaintiff in the circuit court, was affirmed.

The plaintiff's action was for personal injuries, which were the result of a collision, occurring on November 16, 1939 between a truck driven by plaintiff and a motor train being operated by relator in the City of Pittsburg, Kansas. The collision occurred where relator's tracks intersect Eighth Street in that City. From the point where the tracks cross the south curb of this street, to where they cross the north curb of this street, is a distance of forty-five feet.

The case was submitted to the jury under the Kansas last clear chance rule which the respondents state is made up of the following elements:

"'(1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence has ceased; (3) that defendant, seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part, had a...