Stegner v. Missouri-Kansas-Texas R. Co.

• Decision Date: 19 October 1933
• Docket Number: 30906
• Citation: 64 S.W.2d 691,333 Mo. 1182
• Parties: Roland K. Stegner v. Missouri-Kansas-Texas Railroad Company, a Railroad Corporation and Robert I. Gowan and Al Bryan, Appellants
• Court: Missouri Supreme Court

64 S.W.2d 691

333 Mo. 1182

Roland K. Stegner v. Missouri-Kansas-Texas Railroad Company, a Railroad Corporation and Robert I. Gowan and Al Bryan, Appellants

No. 30906

Supreme Court of Missouri

October 19, 1933

Appeal from Boone Circuit Court; Hon. H. A. Collier, Judge.

Affirmed and remanded.

Pendleton & Martin, Carl S. Hoffman and Harris, Price & Alexander for appellants.

(1) It is presumed by appellate court that trial court overruled all grounds in motion for new trial except those specified in the order granting the new trial, and the burden is on the respondent to show the contrary. Porter v. Railroad Co., 28 S.W.2d 1039; Manthey v. Kellerman Const Co., 277 S.W. 929. (2) The court erred in granting plaintiff a new trial upon the ground that the giving of directed verdict for appellants Gowan and Bryan was erroneous, for the reason that respondent asked that the demurrer, in the form of an instructed verdict, be sustained as to Gowan and Bryan, and if error, was invited error by plaintiff, and does not constitute a ground that warrants trial court in granting new trial. Carr v. St Joseph, 225 S.W. 923; Still v. Glass, 222 S.W 893; Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo. 310; Hogan v. Hinchey, 195 Mo. 533; Meffert v. Lawson, 287 S.W. 613. (3) The court erred in granting a new trial upon the ground of the inadequacy of the verdict. (a) It is error for the trial court to set aside a verdict for nominal damages and grant a new trial upon the ground of the inadequacy of the damages allowed, if plaintiff, as a matter of law, under the pleadings, evidence and record, was not entitled to a verdict. Hunt v. Gus Gillerman Iron & Metal Co., 39 S.W.2d 370; Haven v. Mo. Ry. Co., 155 Mo. 223; Borack v. Mosler Safe Co., 231 S.W. 524; Reardon v. White, 239 S.W. 162. (b) The case will be heard in the appellate court upon the same theory as that upon which it was tried in the trial court. Mirrielees v. Wabash Ry. Co., 163 Mo. 486; Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo. 310; Mt. Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co., 227 S.W. 74; Hoff v. Transit Co., 213 Mo. 469. (c) Plaintiff's theory in the trial court was that all of the defendants were guilty of all acts of negligence pleaded, and that the M-K-T Railroad Company was liable for the negligence of its servants and employees under the rule of respondeat superior. The negligence of the servants being the issue, plaintiff could not recover against the defendant, M-K-T Railroad Company, if its servants and employees were not guilty of negligence. McGinnis v. Railroad Co., 200 Mo. 347; Michely v. Miss. Valley Struct. Steel Co., 299 S.W. 831; Wade v. Campbell, 243 S.W. 249; Lindman v. Kansas City, 271 S.W. 521; Doremus v. Root, 23 Wash. 715; Railroad v. Jopes, 142 U.S. 18; Stevick v. Railroad, 39 Wash. 506; K. C. M. & O. Ry. Co. v. Leuch, 158 P. 1146. (d) The suggestion to the trial court by plaintiff that the demurrer, offered in the form of an instructed verdict, of Gowan and Bryan, be sustained, was an admission by plaintiff in open court that Gowan and Bryan were not guilty of negligence, or that plaintiff himself was guilty of such contributory negligence as to bar his recovery as a matter of law. (e) Under the evidence plaintiff was guilty of such contributory negligence as should prevent his recovery as a matter of law. Kirkpatrick v. Am. Creosoting Co., 37 S.W.2d 1001; Tannehill v. Ry. Co., 213 S.W. 818; Sullivan v. Railroad Co., 271 S.W. 983; Holtkamp v. Railroad Co., 234 S.W. 1054; Aldridge v. Railroad Co., 256 S.W. 93; Monroe v. Railroad Co., 249 S.W. 644.

C.W. Journey and Rubey M. Hulen for respondent.

(1) The trial court properly sustained plaintiff's motion for a new trial as to defendant, Missouri-Kansas-Texas Railroad Company, because the verdict for plaintiff for one dollar damages was contrary to the instructions of the court and to the uncontradicted evidence as to damages sustained by the plaintiff. Panagas v. General Cigar Co., 286 S.W. 644; Lilly v. Eberhardt, 37 S.W.2d 601; Stewart v. Carrothers, 37 S.W.2d 499; Haven v. Mo. Ry. Co., 155 Mo. 216, 55 S.W. 1035; Barth v. Boyer, 27 S.W.2d 499; Leavel v. Johnston, 209 Mo.App. 197, 232 S.W. 1064; Geodecke v. Zurich General Accident & Liability Ins. Co., 7 S.W.2d 309; Haag v. Cohen, 207 Mo.App. 36, 229 S.W. 296; Bank v. Wood, 124 Mo. 72, 27 S.W. 554; Settles v. McGinley, 296 S.W. 848. (a) The granting of a new trial because the verdict was inadequate, was within the discretionary power of the trial court, and under the practice of the appellate court that ruling will not be interfered with. Lilly v. Eberhardt, 37 S.W.2d 602; Barth v. Boyer, 27 S.W.2d 499; Nobel v. Kansas City, 222 Mo. 125; Haven v. Railroad, 155 Mo. 229; Thompson v. Railroad, 140 Mo. 125; Bank v. Wood, 124 Mo. 72; Hewett v. Steele, 118 Mo. 463; Parker v. Cassingham, 130 Mo. 348. (2) The trial court properly sustained plaintiff's motion for a new trial as to defendants, Gowan and Bryan, because under the evidence the issue as to their negligence should have been submitted to the jury. (a) Plaintiff did not ask nor invite the sustaining of the demurrer, as to Gowan and Bryan, by the trial court and the record sustains plaintiff's position in this respect. Jackson v. Fulton, 87 Mo.App. 235; Ross v. Railroad Co., 141 Mo. 395; Dougherty v. The People, 118 Ill. 160; Gilmore v. Harp, 92 Mo.App. 388; State ex rel. Wittenbrock v. Wickam, 65 Mo. 637; Fenn v. Reber, 153 Mo.App. 226; State v. Thayer, 15 Mo.App. 391; Sisk v. Wilkinson, 265 S.W. 538; Hinkle v. Railroad Co., 199 S.W. 227; Patterson v. Yancey, 97 Mo.App. 687. (3) The trial court properly sustained plaintiff's motion for a new trial because the giving of plaintiff's Instructions 5 and 6 was error, said instructions containing an improper and prejudicial comment on the evidence. North Nishnabotna Drainage Dist. v. Morgan, 18 S.W.2d 441; Laible v. Wells, 296 S.W. 429; Burgess v. Garvin, 272 S.W. 116; McClure Bros. v. School District of the City of Tipton, 66 Mo.App. 89; Imboden v. St. Louis Union Trust Co., 111 Mo.App. 243, 86 S.W. 263. (4) Plaintiff was not guilty of contributory negligence, as a matter of law, barring his recovery. Hutchinson v. Mo. Pac. Ry. Co., 161 Mo. 246; Boland v. St. L. & S. F. Ry. Co., 284 S.W. 144; Smith v. St. L. & S. F. Ry. Co., 9 S.W.2d 939.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This is an action for damages for personal injuries sustained by the plaintiff, Roland K. Stegner, when an automobile in which he claimed to be riding as a guest, and which was owned and at the time being driven by A. B Burgwin, was struck by one of defendant railroad company's trains at the crossing of State Highway No. 5, over the railroad company's tracks in the city of New Franklin in Howard County. The action was filed in Howard County but tried, on change of venue, in the Circuit Court of Boone County. The Missouri, Kansas and Texas Railroad Company, a corporation, and two individuals, Robert I. Gowan and Al Bryan, the engineer and fireman respectively on the locomotive engine of the train, were joined as defendants. The petition charged six separate and distinct acts of negligence but upon the trial four of these assignments seem to have been abandoned, the plaintiff relying upon the two remaining charges of negligence, which were:

(1) Operating the train within the corporate limits of the city of New Franklin at a speed in excess of ten miles per hour in violation of an ordinance of that city.

(2) Failure to "ring the bell on said locomotive engine eighty rods from said crossing and to keep it ringing until said engine crossed said highway" and failure "to sound the whistle eighty rods from said crossing and . . . at intervals until said engine crossed said highway."

The separate answer of the defendant railroad company admitted that the engine and train "was at the time of the collision, running at a speed in excess of the speed limit fixed by an ordinance of the city of New Franklin," but denied "each and every other allegation" of the petition; and as a further defense alleged, that plaintiff and the driver of the automobile were engaged in a joint enterprise, that the driver was guilty of contributory negligence which was imputable to the plaintiff and that plaintiff himself was guilty of such contributory negligence as to bar a recovery. The individual defendants Gowan and Bryan filed a joint answer admitting that they "were respectively, engineer and fireman" of the locomotive engine which "collided with an automobile in which plaintiff was riding," but denying all the other allegations of the petition. Their answer then sets up the same defense of joint enterprise and contributory negligence of the plaintiff himself contained in the separate answer of the railroad company. At the conclusion of the plaintiff's evidence in chief the court sustained the separate and joint demurrer to the evidence offered on behalf of defendants Gowan and Bryan but overruled the railroad company's separate demurrer to the evidence offered at the same time. At the conclusion of all the evidence in the case the railroad company renewed its motion for a directed verdict which was, by the court, overruled and thereupon the cause, as against the railroad company alone, was submitted, upon instructions, to the jury. The verdict found the issues for plaintiff and against the defendant railroad company and assessed damages in the sum of one dollar. Plaintiff's motion for a new trial was sustained and a new trial ordered as to all the defendants on the following specified grounds:

(1) That the court erred "in instructing the jury to render a verdict in favor" of Gowan and Bryan "because the issues as to" them "under the pleadings and the evidence should...