State ex rel. Estes v. Trimble

• Decision Date: 20 November 1931
• Docket Number: No. 30589.,30589.
• Citation: 43 S.W.2d 1040
• Parties: THE STATE EX REL. JAMES ESTES, by His Next Friend, ELIZABETH ESTES, v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.
• Court: Missouri Supreme Court

43 S.W.2d 1040

THE STATE EX REL. JAMES ESTES, by His Next Friend, ELIZABETH ESTES, v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.

No. 30589.

Supreme Court of Missouri.

Division One, November 20, 1931.

Certiorari.

OPINION AND JUDGMENT QUASHED.

C.R. Leslie, Eastin & McNeely and Cowgill & Popham for relator.

(1) Defendant's given instructions nos. 4, 6 and 7 are erroneous and prejudicial; they conflict with the given instructions of plaintiff; they are in direct conflict with principles of law and controlling decisions laid down by this court; and the trial court properly so ruled in granting plaintiff a new trial. For all the reasons stated under Point I, the Court of Appeals erred in approving defendant's given instructions nos. 4, 6 and 7 and reversing the holding of the trial court. (a) Defendant's given Instruction 4 erroneously restricts the lookout duty of the motorneer, in direct contravention of the settled law of the State and the controlling decisions of this court. (2) Defendant's given Instruction 6 erroneously restricts the warning duty of the motorneer, in direct contravention of the settled law of the State and the controlling decisions of this court. Anderson v. Davis, 284 S.W. 439; Banks v. Morris & Co., 257 S.W. 484; Schulz v. Smercina, 1 S.W. (2d) 113; Cytron v. Transit Co., 205 Mo. 714; Holmes v. Ry., 207 Mo. 149; Hornbuckle v. McCarty, 243 S.W. 329; Galber v. Grossberg, 25 S.W. (2d) 98.

Mayer, Conkling & Sprague for respondents.

(1) This proceeding ought to be dismissed because of relator's failure to file an abstract in accordance with the rules of the Supreme Court. The abstract filed herein by relator does not contain the judgment of the Court of Appeals. The judgment of that court showing what it did with the case is an essential part of the record and must be printed in the abstract. State ex rel. Pedigo v. Robertson, 181 S.W. (Mo.) 990. Where a relator fails to file a sufficient abstract in an original certiorari proceeding, the case will be dismissed. State ex rel. Hirsch v. Allen, 274 S.W. (Mo.) 353; State ex rel. School District v. Cox, 18 S.W. (2d) 61. (2) Even if the relator had filed a proper abstract, the sole province of the Supreme Court would be to ascertain whether the opinion of the court of appeals conflicts with previous controlling decisions of this court. State ex rel. Surety Co. v. Haid, 30 S.W. (2d) 103. Respondents' opinion does not conflict with any of the Supreme Court cases cited by relator, nor does it contravene any previous ruling of this court.

GANTT, P.J.

This came to me on reassignment. Relator seeks to have quashed the opinion of the Kansas City Court of Appeals in James Estes, by next friend, v. Kansas City, Clay County & St. Joseph Railroad Company.

Respondents move to dismiss the proceeding, alleging failure of relator to file an abstract in accordance with our rules. We find the abstract sufficient to afford a complete understanding of the questions for review. The motion is overruled.

Facts stated in the opinion follow:

"This is an action for personal injuries. The petition alleges that plaintiff, an infant, was riding in a wagon over which he had no control and which was being driven by another across and over the public intersection at Twelfth Street and Burlington Avenue in or near North Kansas City, Missouri; that defendant was engaged in operating an interurban car over its tracks and negligently caused and permitted the same to collide with the wagon, permanently injuring the plaintiff... .

"It is alleged that the plaintiff was in imminent peril and defendant knew or by the exercise of ordinary care would have known thereof, in time thereafter, by using ordinary care, and the means at hand and with safety to the car and those upon it, to have stopped or slackened the speed of the car or given warning of the approach thereof in time to have prevented the collision and injury, all of which defendant negligently failed to do. The evidence disclosed that ... on the day that plaintiff was injured he was riding in a wagon with his mother, his grandfather, and an old negro who was driving. The negro drove the team and wagon on the west side of the railway tracks at a slow walk until he reached Twelfth Street, at which place it was necessary to turn in an easterly direction across the railway tracks; because the west side of the highway north of Twelfth Street was not open to traffic. The evidence was conflicting as to whether or not the bell was rung or the whistle sounded, and there was evidence from which the jury could have found that the motorman could or could not have seen the wagon and the occupants thereof in a position of peril in time to avoid a collision."

The jury returned a verdict for defendant. Plaintiff's motion for a new trial was sustained....