State v. Trimble

• Decision Date: 13 May 1924
• Docket Number: No. 24878.,24878.
• Citation: 263 S.W. 840,304 Mo. 533
• Parties: STATE ex rel. AMBROSE v. TRIMBLE, Judge, et al.
• Court: Missouri Supreme Court

263 S.W. 840

304 Mo. 533

STATE ex rel. AMBROSE v. TRIMBLE, Judge, et al.

No. 24878.

Supreme Court of Missouri, in Banc.

May 13, 1924.

Motion for Rehearing Denied July 3, 1924.

Certiorari to Kansas City Court of Appeals.

Certiorari by the State, on relation of Mary Ambrose, administratrix of the estate of James Ambrose, deceased, against Francis H. Trimble, Judge of Kansas City Court of Appeals and others to review a judgment of that court reversing a judgment for compensation under federal Employers' Liability Act, in a suit against the Chicago & Alton Railroad;. Record and opinion of Kansas City Court of Appeals quashed in part.

V. Jones, of Slater, and H. R. Freeman and T. J. Madden, both of Kansas City, for relatrix.

Alpha N. Brown and Charles M. Miller, both of Kansas City, for respondent Chicago & A. R. Co.

WHITE, S.

The relatrix, Mary Ambrose, as administratrix of the estate of James Ambrose, deceased, recovered judgment in the circuit court of Jackson county, Mo., in the sum of $7,500, against the Chicago & Alton Railroad Company, on account of the death of James Ambrose, who was unmarried end living with his dependent, widowed mother, Margaret Ambrose. Ambrose was killed in Saline county. The suit was brought under the federal Employers' Liability Act (U. E, Comp. St. §§ 8657-8665).

On appeal to the Kansas City Court of Appeals the judgment was reversed and the cause remanded. The relatrix, in her petition for the writ, asserts that the opinion of the Kansas City Court of Appeals is contrary to certain rulings of this court in holding erroneous certain instructions given by the trial court.

Respondent Chicago & Alton Railroad Company claims that the ruling of the Kansas City Court of Appeals was contrary to certain rulings of this court in holding that a case was made out for the jury on the evidence presented, and asks this court to quash the record on that account.

I. We will first consider the allege, conflict urged by the relatrix. The trial court, by instruction No. 3, on the measure of damages, told the jury that, if they found certain facts required in order to render a verdict for plaintiff they should assess her damages at such sum as would reasonably compensate for the loss of pecuniary benefits which the jury should find from the evidence the mother, Margaret Ambrose, would certainly have received from the deceased, taking into account her life expectancy.

Instruction No. 2, given on behalf of plaintiff requires the jury to make a similar finding in regard to the facts necessary for a verdict, and then told the jury:

"If you find that Margaret Ambrose was damaged by his death, a full recovery should not be had for such damages, but only a proportional amount thereof, bearing the same relation or ratio to the full amount of damages she has sustained as the negligence, if any, attributable to the defendant bears to the entire negligence attributable to both deceased and defendant."

The Court of Appeals held that those instructions were contradictory, and reversed the case on that account. This, it is claimed by the relatrix, is contrary to certain rulings of this court. State ex rel. Jenkins v. Trimble, 291 Mo. loc. cit. 234, 236 S. W. 651: McIntyre v. Railroad, 286 Mo. loc. cit. 260. 227 S. W. 1047; Colburn y. Krenning (Mo. Sup.) 220 S. W. 934, loc. cit. 940; Gordon v. Burris, 153 Mo. loc. cit. 232, 54 S. W. 546. It was held by this court, in Colburn v. Krenning, that in a personal injury case, if an instruction authorizing a recovery is sufficient, aside from the question of contributory negligence, and if an instruction for defendant properly declaring the law with respect to contributory negligence is given, the two instructions thus given shall be sufficient. It was said by this court, in the Jenkins Case, 291 Mo. loc. cit. 234 (236 S. W. 652):

"Where plaintiff's instruction omits some feature which is not an element of his cause of action, but is merely a defensive feature, the omission may be cured by the instructions for defendant submitting that feature."

The Colburn Case was rendered by Division No. 2, and the Jenkins Case by the Court en banc.

The general principle was announced in McIntyre v. Railroad, 286 Mo. loc. cit. 260, 227 S. W. 1047, a case arising under the federal Employers' Liability Act, and applied to the defense of contributory negligence. Contributory negligence in such a case is a defense pro tanto, and in this case was pleaded as such. The opinion of the Kansas City Court of Appeals says:

"The answer is general and pleads contributory negligence and assumed risk."

It is not necessary for the plaintiff, in his suit under the federal Employers' Liability Act, to negative contributory negligence. In order to recover he states a complete case when he alleges the negligent act of the defendant which caused the injury. If the defendant relies upon the contributory negligence to diminish the amount of damages, it Must be pleaded, unless contributory negligence appears in the plaintiff's evidence in making out his case. If the defendant should instruct on the evidence from the plaintiff's witnesses, tending to show contributory negligence, it would come within the rule announced in cases cited.

Cases cited by the railroad company, such as State ex rel. v. Ellison, 272 Mo. loc. cit. 583, 199 S. W. 984, are where the instruction omits some hypothetical fact which must be found in favor of plaintiff before he could recover. And where such an instruction is given, purporting to cover the whole case, the error is not cured by instruction given for the defendant. They are not in point.

The respondent claims that the McIntyre Case, and other cases cited above, are not in point, because the omission in the plaintiff's instruction was presented in the defendant's instruction, whereas in the present case it is not presented in the defendant's instruction but in an instruction given for the plaintiff, therefore the error is not cured. This argument defeats itself, because the two instructions given for the plaintiff, not only required a finding of every fact necessary to entitle plaintiff to recover, but required a consideration of the defense of contributory negligence in determining the amount of the verdict, in case of a verdict for plaintiff. The two instructions were numbered 2 and 3. The complaint now is that those instructions were contradictory, whereas, if the matter of both instructions had been embodied in one instruction, it would have been correct. If they are contradictory when separated by a numeral, distinguished by two numerals, then if both were included in one it would be contradictory of itself. What would be the difference in effect upon the jury if the two instructions were put in one paragraph instead of in two, and designated by one number instead of by two numbers, where they thus come consecutively? If the two paragraphs together had been numbered either 2, or 3, the respondent would have made no complaint, but since they happen to be numbered 2 and 3, they are contradictory. To state the proposition is to refute it.

Further, instruction 3 does not authorize a verdict. The two instructions taken to. gether define, somewhat awkwardly but correctly, the duty of the jury. It must first ascertain how much the plaintiff is damaged, and then deduct from the sum found an amount in the proportion that the negligence of the deceased contributed to the death. If the first is not found, there would be no basis whereon to make the deduction. Instruction 3, instead of authorizing a verdict only directs the jury what it must take into consideration in assessing her damages. There can be no complaint that the direction in that respect is not correct. The jury must consider all those elements and assess the damages accordingly. It is a strained construction to say they must then and there fix the amount of the verdict without considering anything else. One of the meanings of "assess," given in Webster and in Bouvier is "to value," "to fix the value of." If the words, "you may ascertain as damages," were used instead of "you may assess as damages," there would be no complaint. If microscopic inaccuracies like that complained of should work a reversal in every case, no case could be affirmed.

The ruling of the Kansas City Court of Appeals therefore was in conflict with the cases first cited above.

II. The respondent railroad company asserts here that the opinion and judgment of the Kansas City Court of Appeals should be quashed because it is in conflict with the ruling of this court. Although a respondent in this proceeding, it may properly raise the question of conflict. State ex rel. Shawhan v. Ellison, 273 Mo. 218, 200 S. W. 1042. The argument is that Ambrose was killed while performing a duty in connection with the operation of trains; that it was his duty to know when trains were coming and to look out for them, so that it was not necessary for trainmen to be on their guard to discover whether or not he was on the track. The case was submitted on the humanitarian rule. The trial court refused an instruction asked by defendant, which denied recovery unless Ambrose actually was seen in time to have stopped, or to have checked the speed of the train, and so avoided hitting him. Recovery was permitted if the defendant's employee could have seen him, by the exercise of ordinary care, in time to have avoided the injury. The Court of Appeals thus presents the facts in regard to that issue:

"There was testimony in detail tending to show that the public had been using the track in going to and from Marshall, at the place where the accident occurred, and that this practice had existed for a period of 18 or 20 years. We think this testimony sufficiently substantial to take the case to the jury on the question of user. User, however, goes only to the question of the duty of defendant to watch for persons who might be on the track at this point. We...