State ex rel. Weddle v. Trimble

• Decision Date: 03 September 1932
• Citation: 52 S.W.2d 864,331 Mo. 1
• Parties: State of Missouri at the Relation of v. W. Weddle, Relator, v. Francis H. Trimble, Ewing C. Bland and Henry L. Arnold, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

52 S.W.2d 864

331 Mo. 1

State of Missouri at the Relation of v. W. Weddle, Relator, v. Francis H. Trimble, Ewing C. Bland and Henry L. Arnold, Judges of the Kansas City Court of Appeals

Supreme Court of Missouri

September 3, 1932

Opinion quashed.

Shultz & Owen for relator.

(1) The application of law to facts made by this court is controlling on respondents in all cases where the facts are the same or similar. State ex rel. Browning v. Cox, 276 S.W 872; State ex rel. Calhoun v. Reynolds, 289 Mo. 514. Respondents' ruling is therefore in conflict with the controlling decisions of this court in Gann v Railway, 6 S.W.2d 39. (2) Respondents' ruling, that in last chance "while plaintiff is entitled to the benefit of defendant's evidence, he is not entitled to any such evidence that tends to contradict what plaintiff himself testified to," is in conflict with the following controlling opinions of this court: Anderson v Davis, 314 Mo. 552; Gould v. Railway, 315 Mo. 722; Gann v. Railway, 6 S.W.2d 44; Hall v. Railway, 287 Mo. 519; Story v. Peoples Motor Bus Co., 37 S.W.2d 901.

Mayer, Conkling & Sprague for respondents.

(1) The respondents' ruling that there was no evidence tending to show that slackening the speed of the interurban car, short of a stop, would have averted the collision, does not contravene the decision of this court in Gann v. Railroad, 319 Mo. 214, 6 S.W.2d 39, but, on the contrary, follows the last controlling decision of this court in Driscoll v. Wells, 29 S.W.2d 50. (2) The respondents' ruling that there was no evidence upon which to submit negligence on the part of the defendant in failing to warn does not conflict with any of the five cases cited by relator, but, on the contrary, follows the last controlling decisions of this court, as follows: Clay v. Railroad, 5 S.W.2d 412; Driscoll v. Wells, 29 S.W.2d 51. In a certiorari proceeding the Supreme Court is bound by the respondents' conclusions as to the facts. State ex rel. v. Haid, 41 S.W.2d 808; State ex rel. v. Daues, 288 S.W. 16. The plaintiff cannot deny his own version of the facts, when the defendant has testified, as in this case, that he relied upon the same facts and circumstances related by plaintiff himself. Anderson v. Davis, 314 Mo. 552. The plaintiff is not entitled to the benefit of defendant's testimony at variance with plaintiff's own testimony when it involves a change in the theory on which plaintiff tried his case. Gann v. Railroad, 319 Mo. 228; Murray v. St. Louis Transit Co., 176 Mo. 189. Even if the language used in any of the cases cited by relator is so general as to be subject to the interpretation put upon it by relator's counsel (which we deny is the case), the ruling of the Court of Appeals in this respect is so clearly right that this court ought not to quash the opinion because of an apparent ruling of this court to the contrary that is manifestly unsound. State ex rel. v. Trimble, 32 S.W.2d 572; State ex rel. v. Trimble, 287 S.W. 627; State ex rel. v. Daues, 314 Mo. 33. At any event, only such part of the opinion ought to be quashed as may be deemed to run counter to the decisions of this court. State ex rel. v. Daues, 19 S.W.2d 700.

Atwood, J. All concur, except Ragland, J., not sitting.

OPINION

ATWOOD

Relator has invoked our writ of certiorari directed to the Kansas City Court of Appeals on the ground that its decision rendered in the case of B. W. Weddle Respondent, v. St. Joseph Railway, Light, Heat & Power Company, Appellant, is in conflict with certain controlling decisions of this court.

It appears from respondents' written opinion rendered in said cause that the action was for damages for personal injuries alleged to have been sustained by the plaintiff (relator here) in a collision between a Dodge truck which he was driving and an electric interurban car operated by the St. Joseph Railway, Light, Heat & Power Company at a public crossing between St. Joseph and Savannah. The case was tried and submitted to a jury solely on the humanitarian theory of negligence. The trial court gave Instruction No. 1, at plaintiff's request, which covered the entire case and directed a verdict, and is treated by the parties hereto as submitting in the disjunctive negligence on the part of the defendant in failing to warn of the approach of the interurban car, in failing to check the speed of the car, and in failing to stop the same. Plaintiff recovered a verdict and judgment in the sum of $ 2,500, and defendant appealed to the Kansas City Court of Appeals.

Respondents held in their opinion that a case was made for the jury on the charge of defendant's failure to stop the interurban car, but that the giving of plaintiff's Instruction No. 1 was erroneous because "there was no showing that the failure to slacken the speed of the car had anything to do with the collision, that is to say, that it was the proximate or contributed to the proximate cause of the collision," and because "there was no evidence upon which to submit negligence on the part of the defendant in failing to warn," and the judgment was reversed and the cause remanded.

Instruction No. 1, thus referred to in the opinion, is as follows:

"The court instructs the jury that if you find from the evidence that on the 2nd day of August, 1928, and at all times herein mentioned, the place of accident complained of in plaintiff's petition was a public highway, and at all times herein mentioned the plaintiff was riding in an automobile along and over said highway, and that at the same time the defendant, Railway Company, by its agent, was operating an electric street car over an intersection in said highway; and if you further find from the evidence that the defendant's street car and the automobile, in which plaintiff was riding, collided on said highway, thereby injuring plaintiff; and that you further find from the evidence that plaintiff was in danger and imminent peril of being struck by said electric car, and that the defendant and its agent -- while operating said electric car -- saw, or by the exercise of ordinary care, could have seen that plaintiff was in a place of danger and imminent peril of being struck by said electric car and unable to extricate himself, if you so find, in time, for the defendant, by its agent, to have, by the exercise of ordinary care, avoided said accident, if you so find, by giving plaintiff warning by a gong or whistle of the approach of said electric car, or by checking the speed of said electric car, or by stopping the same, and thereby avoided striking plaintiff, if you so find; but that the defendant and its agent, in charge of said car, negligently and carelessly failed to give such warning, and negligently and carelessly failed to so check the speed of said electric car, or stop the same, and was thereby negligent, if you so find, and that by reason of said failure, if you so find, plaintiff was injured, then your verdict will be for the plaintiff and against the defendant."

The only points urged by relator are, (1) respondents' ruling that there was no evidence to support the submission of negligence in failing to check speed or give warning is in conflict with our controlling decision in the case of Gann v. Ry., 6 S.W.2d 39, 41, 319 Mo. 214; and (2) respondents' ruling that "while plaintiff is entitled to the benefit of defendant's evidence, he is not entitled to any such evidence that tends to contradict what plaintiff himself testified to," as applied to the facts here in evidence, is in conflict with our controlling decisions in Hale v. Railway, 287 Mo. 499, 518, 519, 230 S.W. 113; Anderson v. Davis, 314 Mo. 515, 552, 284 S.W. 439; Gould v. Railway, 315 Mo. 713, 722, 290 S.W. 135; Gann v. Railway, 6 S.W.2d 39, 44, 319 Mo. 214; Story v. People's Motorbus Co., 37 S.W.2d 898, 901, 327 Mo. 719.

It appears from respondents' opinion that plaintiff testified he approached the crossing up-grade from the west in second gear at a speed of five miles an hour; that at a point from 20 to 25 feet from the first rail, you could not see anything north; that he could not have seen a car 50 feet up the track at that time; that he looked north for the first time when the front end of his truck was 15 feet away from the west or first rail; that he could not have had a view up the track prior to this time; that he then saw up the track for a distance of 150 feet and no car was in sight; that he proceeded along at the same speed continuing to look toward the north until the front end of his truck was within five feet of the first or west rail of the track and he, sitting in the truck, was eight or nine feet away from the track; that he then discovered the car approaching from the north coming around a curve at a distance of 200 feet from the crossing; that he saw the car as soon as he could have seen it; that he immediately threw the clutch into neutral, applied the foot brake and grabbed for the gear shift for the purpose of reversing the truck and backing away from the track; that the truck stopped with its front wheels over the west or first rail; that he did not remember anything that occurred after that as the car struck the truck at that time; that his motor did not stop; that he could not tell whether he was able to get the car shifted out of second gear or neutral or reversed; that moving at the rate of 5 miles per hour under the circumstances he could have stopped the truck within 6 or 7 feet.

The motorman testified "that he had just taken his hand off of the whistle cord (135 feet from the crossing) when the truck came into view, from behind the embankment, 23 feet west of the first or westbound rail; that he instantly reversed his car and set the air brake."

We quote as follows from respondents' ruling with respect to...