State ex rel. Thompson v. Shain

• Decision Date: 28 July 1942
• Docket Number: 37941
• Citation: 163 S.W.2d 967,349 Mo. 1075
• 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

163 S.W.2d 967

349 Mo. 1075

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. 37941

Supreme Court of Missouri

July 28, 1942

Writ quashed.

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

(1) The opinion of the Court of Appeals in holding that the plaintiff made a submissible case under the evidence is in conflict with the following controlling decisions of this court Chawkley v. Wab. Ry. Co., 317 Mo. 782, 297 S.W. 20; Sullivan v. A., T. & S. F. Ry. Co., 317 Mo. 996, 297 S.W. 945; State ex rel. Steinbrugge v. Hostetter, 342 Mo. 341, 115 S.W.2d 802; State ex rel. Arndt v Cox, 327 Mo. 790, 38 S.W.2d 1079; Downs v. Horton, 287 Mo. 414, 230 S.W. 103; State ex rel. Bowdon v. Allen, 337 Mo. 260, 85 S.W.2d 63; Porter v. Mo. Pac. Ry. Co., 199 Mo. 82, 97 S.W. 880. (2) The opinion of the Court of Appeals in holding that the evidence of the defendant's witnesses as to the conduct of the deceased did not overcome the presumption of due care conflicts with the following controlling decisions of this court: State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233; Zickefoose v. Thompson, 148 S.W.2d 784; Rodan v. St. L. Transit Co., 207 Mo. 392, 105 S.W. 1061; Burge v. Wab. R. Co., 244 Mo. 76, 148 S.W. 925. (3) The opinion of the Court of Appeals in holding that Instruction B was not erroneous as submitting an issue of law on the question of what constituted a dangerous crossing conflicts with the following decisions of this court: Long v. Mild, 149 S.W.2d 853; Brock v. C., R. I. & P. Ry. Co., 305 Mo. 502, 266 S.W. 691; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14. (4) The opinion of the Court of Appeals in holding that Instruction C was not erroneous because submitting an issue of law to the jury in that it failed to define what constituted an unusually dangerous crossing conflicts with controlling decisions of this court. See cases cited under Point (3). (5) The opinion of the Court of Appeals in holding that Instruction H was proper although it limited the question of whether the flasher lights were working to the issue of contributory negligence, when the jury had a right to consider whether the flasher lights constituted a sufficient warning, conflicts with the following controlling decisions of this court: State ex rel. v. Hostetter, Powell Bros. Truck Lines, 345 Mo. 915, 137 S.W.2d 346; Seithel v. St. Louis Dairy Co., 300 S.W. 280; Henderson v. St. L.-S. F. Ry. Co., 284 S.W. 788.

Crouch & Crouch, Cowgill & Popham and Sam Mandell for respondents.

(1) Relator concedes that plaintiff made a prima facie case because it contends its demurrer should have been sustained because deceased was guilty of contributory negligence as a matter of law. Pentecost v. St. Louis Merchants Bridge Terminal R. Co., 334 Mo. 572, 66 S.W.2d 533; Homan v. Missouri-Pacific R. Co., 334 Mo. 61, 64 S.W.2d 617; Herrell v. St. Louis-S. F. Ry. Co., 322 Mo. 551, 18 S.W.2d 481; Toeneboehn v. St. Louis-S. F. Ry. Co., 317 Mo. 1096, 298 S.W. 795; Beal v. Chicago, B. & Q. R. Co., 285 S.W. 482. (2) In an action for injuries, contributory negligence is a matter of defense, and the plaintiff is not required to prove its absence as a part of his case. Buesching v. St. Louis Gaslight Co., 73 Mo. 219, 39 Am. Rep. 503; Mitchell v. City of Clinton, 99 Mo. 153, 12 S.W. 793; Fulks v. St. Louis-S. F. Ry. Co., 111 Mo. 335, 19 S.W. 818. (3) No evidence introduced by defendants can convict deceased of contributory negligence as a matter of law. She can be so convicted only by evidence introduced by plaintiff. Gannon v. Gaslight Co., 145 Mo. 502, 46 S.W. 968; Flannagan v. R. Co., 297 S.W. 463; Nicholson v. Railroad Co., 297 S.W. 996; Toeneboehn v. Railroad Co., 317 Mo. 1096, 298 S.W. 795; Dobson v. R. Co., 10 S.W.2d 528; Clark v. Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Mundy v. Railroad Co., 45 S.W.2d 941; Perkins v. Railroad Co., 329 Mo. 1190, 49 S.W.2d 103; Hollister v. Aloe Co., 156 S.W.2d 606. (4) The facts found in the opinion of the Court of Appeals cannot convict the deceased of contributory negligence as a matter of law. Dobson v. St. Louis-S. F. Ry. Co., 10 S.W.2d 528. (5) The opinion of the Court of Appeals which holds that plaintiff made a submissible case under the evidence is not in conflict with any decisions of this court. State ex rel. Railway Co. v. Reynolds, 286 Mo. 204, 226 S.W. 564; 1 Jones' Commentaries on Evidence (2 Ed.), p. 422; Peperkorn v. St. Louis Transfer Ry. Co., 171 Mo.App. 709, 154 S.W. 836. (6) Plaintiff's instructions B and C were properly given. Homan v. Mo. Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617; Pentecost v. St. Louis Merchants Bridge Terminal R. Co., 334 Mo. 572, 66 S.W.2d 533. (7) Plaintiff's Instruction H was properly given.

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

OPINION

CLARK

Certiorari to the Kansas City Court of Appeals. Relator claims that the opinion of that court in the case of Benton, Admr., v. Thompson, Trustee, Mo. Pac. Ry. Co., 156 S.W.2d 739, conflicts with certain decisions of this court.

In this kind of proceeding we do not decide the case on the merits, but are concerned only with conflict and look only to the opinion of the court of appeals for the facts. [State ex rel. Pub. Serv. Comm. v. Shain, 342 Mo. 867, 119 S.W.2d 220.]

The action grew out of a collision at a public crossing between a train operated by defendant and an automobile in which deceased was a guest. Deceased was riding in the rear seat of the automobile which was being driven by her daughter.

The case was submitted to the jury on defendant's negligence in failing to warn deceased and in operating the train at a dangerous and excessive speed.

Relator claims that the opinion of the court of appeals conflicts with our decisions in the following particulars:

(1) In holding under the evidence that plaintiff made a submissible case;

(2) In holding that the presumption of due care on the part of deceased was not overcome by the testimony of witnesses who testified on behalf of defendant; and

(3) In holding that plaintiff's instructions B, C, and H were not erroneous.

After reviewing the testimony, the opinion says:

"However, assuming, but not deciding, that this was sufficient time, as a matter of law, under all of the circumstances, for deceased to have notified her daughter in time for the latter to have stopped her car, there is no evidence, which the jury was compelled to believe, that deceased did not warn her daughter, and deceased is presumed to have been exercising ordinary care in the absence of credible . . . testimony to the contrary. [Citing cases.]

"It is true that the fireman, testifying for the defendant, stated that when the automobile approached the crossing deceased and her daughter were engaged in conversation and that neither of them looked toward the track or paid any attention to the approaching train. There is no evidence contradicting this. In fact, the only other testimony in the record bearing on what the occupants of the automobile were doing before it reached the track was that given by a witness for the plaintiff, who stated that he was working on the trafficway about 800 feet west of the crossing when the automobile passed him; that he knew both of the occupants and 'they were just riding along like they had no place to go at all and were in no hurry whatever and she [the driver] made a motion with her hand at me as she passed.'

"In view of all this, defendant says the presumption of due care on the part of the deceased cannot be indulged in because such presumption constitutes merely a procedural rule and can be applied only in the absence of evidence to the contrary. While the testimony of the fireman on this question was not contradicted, his testimony, in nearly every material instance, as to other matters, was contradicted, and had the jury believed his testimony on those matters, it could not have found for plaintiff. Of course, the jury did not believe his testimony as to such matters. For instance, he testified that the bell was being rung by an automatic bell ringer as the train approached and went over the crossing; that the whistle was sounded a quarter of a mile south of the crossing; that he looked at the flasher lights and both of them were working perfectly, etc. If the jury, as a matter of law, were compelled to accept the fireman's testimony relating to the activities of the occupants of the automobile at the time it approached the crossing, then the presumption of due care on the part of deceased could not be indulged in. However, under all of the circumstances, we do not believe that the jury was compelled to believe this testimony."

From the above quotation it is apparent that the opinion treats the presumption of due care on the part of deceased in connection with the question of whether plaintiff made a submissible case; but, as relator lists the two questions separately in his brief, we will discuss them separately so far as practicable.

Relator says that the court erred in holding that plaintiff made a submissible case because deceased was guilty of contributory negligence as a matter of law; that she had good sight and hearing, could have seen the approaching train in time to have warned the driver of the car to stop, and if the driver had been warned there was no reason why she should not have stopped; that the court of appeals based its opinion on the presumption that deceased was in the exercise of due care and erroneously held that evidence offered by the defendant did not destroy such presumption.

On the holding that plaintiff made a...