Stolovey v. Fleming

• Decision Date: 10 July 1928
• Docket Number: No. 26374.,26374.
• Citation: 8 S.W.2d 832
• Parties: LEAH STOLOVEY, Appellant, v. FRED W. FLEMING and FRANCIS M. WILSON, Receivers of KANSAS CITY RAILWAYS COMPANY.
• Court: Missouri Supreme Court

8 S.W.2d 832

LEAH STOLOVEY, Appellant, v. FRED W. FLEMING and FRANCIS M. WILSON, Receivers of KANSAS CITY RAILWAYS COMPANY.

No. 26374.

Supreme Court of Missouri, Division One.

July 10, 1928.

Appeal from Jackson Circuit Court. — Hon. Charles R. Pence, Judge.

REVERSED AND REMANDED.

Trusty & Pugh for appellant.

(1) The court erred in giving defendants' Instruction number 3 on the burden of proof, because the burden of proving defendant was not negligent was on the defendant. The petition is based on the res ipsa loquitur doctrine, and such an instruction has no place in a res ipsa loquitur case. Bell v. Cent. Railroad, 125 Mo. App. 660; Bond v. Railroad Co. (Mo.), 228 S.W. 782; Price v. Met. St. Ry., 220 Mo. 435; Carlson v. Wells (Mo.), 276 S.W. 26; Lich v. Wells, 296 S.W. 1043; Stofer v. Dunham (Mo. App.), 208 S.W. 641; Bloom v. Union Elec. Co. (Mo.), 251 S.W. 414; Watson v. C.G. & W. Railroad (Mo. App.), 287 S.W. 814; Simpson v. C., R.I. & P. Ry. Co. (Mo.). 192 S.W. 740; Myers v. City (Mo.), 189 S.W. 823. (a) It fails to define the term "preponderance of the credible testimony." Head v. Leming, 281 S.W. 444. (b) It places too great a burden on the plaintiff by the use of the term "to your reasonable satisfaction." Krause v. Spurgeon, 256 S.W. 1074. (2) The court erred in giving Instruction 1. (a) It is a lecture to the jury. Unterlachner v. Wells. 278 S.W. 83. (b) It cautioned the jury not to consider the character of the plaintiff's injuries in considering the negligence and liability of the defendant, when the very proof of her injuries would tend to convince the jury that she was caused to fall the way she said she did. Orris v. C., R.I. & P. Railroad Co. (Mo.), 214 S.W. 126; Myer v. City (Mo.), 189 S.W. 823; Walker v. Railroad Co. (Mo.), 178 S.W. 110; Walker v. City (Mo. App.), 231 S.W. 65. (c) It cautions the jury to determine the question of negligence or no negligence, when there was a presumption of negligence under the pleadings and the proof, and when the negligence was undisputed. Carson v. Wells, 276 S.W. 28. (d) It fails to define "reasonable satisfaction." (3) The court erred in giving defendants' Instruction 4. (a) It destroyed the presumption of negligence in favor of the plaintiff and confined the jury to the testimony. Bord v. Railroad, 288 S.W. 777. (b) It fails to define "greater weight of the credible evidence." Gilette v. Loedrich, 242 S.W. 113. (c) It places the burden on plaintiff of producing all the credible evidence.

Charles L. Carr and Louis R. Weiss for respondents.

(1) Instruction 3, given at the request of defendants, was proper. (a) Petition alleges specific acts of negligence. Roscoe v. Met. St. Ry. Co., 202 Mo. 586; McGrath v. Transit Co., 197 Mo. 405; Pointer v. Mountain Ry. Const. Co., 269 Mo. 114; Davidson v. Transit Co., 211 Mo. 361; Pate v. Dumbauld, 298 Mo. 445; Lauff v. Carpet Co., 186 Mo. App. 135. (b) Burden of proof rested upon plaintiff, 22 C.J. 68; Downs v. Horton, 287 Mo. 414; Tevis v. United Rys. Co., 185 S.W. 738; Witting v. Ry. Co., 101 Mo. 631; Williams v. Modern Woodmen, 221 S.W. 414; Marshall Livery Co. v. McKelvey, 55 Mo. App. 240; Berger v. Storage Co., 136 Mo. App. 36; Griffith v. Casualty Co., 253 S.W. 1048; State ex rel. v. Allen, 276 S.W. 386; State ex rel. Ry. Co. v. Trimble, 302 Mo. 8; Reagan v. Transit Co., 180 Mo. 144; Lester v. Wells, 253 S.W. 389; Gloyd v. Wabash Railroad, 240 S.W. 386; McKeever v. Kramer, 203 Mo. App. 274; Rhodes v. Mo. Pac. Ry. Co., 234 S.W. 1026; O'Shea v. Lehr, 182 Mo. App. 693. (c) Failure to define "preponderance of evidence" was not prejudicial. Tucker v. Carter, 211 S.W. 139; Miller v. Firemen's Ins. Co., 221 S.W. 266; Jones v. Durham, 94 Mo. App. 51; B.F. Goodrich Rubber Co. v. Newman, 271 S.W. 1031; Berryman v. Surety Co., 227 S.W. 96. (d) Requiring jury to find to their "reasonable satisfaction" was proper. Malone v. Frank, 274 S.W. 371; Shepard v. Schaff, 241 S.W. 431: Norris v. Ry. Co., 239 Mo. 695; Stewart v. Outwaite, 141 Mo. 562. (2) No error was committed in giving defendants' instruction number one. Randall v. Elec. Ry. Co., 158 Ill. App. 56; Huss v. Bakery Co., 210 Mo. 56; Aronovitz v. Arky, 219 S.W. 624; Harley v. Ill. Cent. Ry. Co., 280 S.W. 100. (3) Instruction number 4 on preponderance of evidence was in approved form. 23 C.J. 11; Handlan v. Miller, 143 Mo. App. 101.

ATWOOD, P.J.

This is an action for personal injuries alleged to have been sustained by Leah Stolovey while she was endeavoring to board a street car in Kansas City, Missouri. The jury returned a verdict for defendants, and from the judgment entered thereon plaintiff has appealed, assigning error in the giving of certain instructions. The first instruction complained of is number 3, given at the request of defendants, as follows:

"The court instructs the jury that the burden of proof is on the plaintiff to prove to your satisfaction by the preponderance or greater weight of the credible testimony that the Res Ipsa defendants are guilty of negligence as submitted to Loquitur. you in the court's instructions, and this burden of proof continues and Burden. abides with plaintiff throughout the entire trial; and unless you believe and find from the evidence in the case that plaintiff has proven to your reasonable satisfaction by a preponderance of the credible testimony that the defendants are guilty of negligence as defined and submitted to you in the instructions of the court, and that such negligence was the direct and proximate cause of plaintiff's injuries, if any, then your verdict must be for the defendants."

Appellant asserts that "the petition is based on the res ipsa loquitur doctrine, and such an instruction has no place in a res ipsa loquitur case," citing Price v. Met. Street Ry., 220 Mo. 435, and other cases. Respondents insist that this is not a res ipsa loquitur case, but contend that whether it is or is not the foregoing instruction was properly given. According to appellants' abstract of the record plaintiff's allegation of defendants' negligence was that "she was thrown and injured by the carelessness and negligence of defendants' operators in charge of said car in starting the car while the plaintiff had one foot upon the step and trying to get thereon as a passenger.' Appellant says this is a general charge of negligence, while respondents say that it is specific. An examination of the cases cited by respondents on this point discloses that the petitions specifically stated the negligence complained of, most of them setting up in detail several grounds of negligence. Not so in this case. Only one ground of negligence is pleaded, and that in general terms. The petition in effect says that defendants' operators in charge of said car carelessly and negligently started the same while plaintiff was attempting to board it as a passenger and she was injured thereby. Plaintiff does not attempt to say which operator started the car, or in what particular such operator was negligent, or what act on the part of defendants' operators caused the car to start. Such a pleading is general rather than specific. [Lich v. Wells, 296 S.W. (St. L. Ct. App.) l.c. 1044; Lammert v. Wells, 282 S.W. (St. L. Ct. App.) l.c. 489, and cases cited.] As said in Bergfeld v. K.C. Rys. Co., 285 Mo. l.c. 665: "In order to allege specific negligence, as said in the Price case, there must not only be an averment as to the particular servants whose negligence is complained of, but it must also be pointed out wherein they, or either of them, have been negligent." Also, in Stauffer v. Railroad, 243 Mo. l.c. 325: "To be sure there is precision and specification as to what resulted from the negligence, to-wit, a collision with a steam roller, but there is no specification of the negligence itself. It stands nakedly as general." So in the instant case, plaintiff pleaded only the ultimate facts that the car was carelessly and negligently started by defendants' operators while plaintiff was attempting to board same and she was injured. General and not specific negligence was thereby pleaded.

Was it proper, then, to give Instruction number 3? Appellant strongly argues that it was not, relying chiefly on Price v. Met. Street Ry. Co., 220 Mo. l.c. 463, where we held that an instruction somewhat similar in form offered by defendant, was properly refused on the ground that "such an instruction has no place in a case where the doctrine of res ipsa loquitur is applicable. It destroys every vestige of the doctrine of presumptive negligence." Apparently assuming that this expression of the court, in banc, forbade in res ipsa loquitur cases the use of an instruction applying the general rule that the burden of proof rests upon the one who affirms negligence, certain subsequent opinions cited by appellant have sharply criticised similar instructions and even held that the giving of such was reversible error. [Bloom v. Union Electric L. & P. Co., 251 S.W. (St. L. Ct. App.) l.c. 414: Watson v. Chicago Great Western Railroad Co., 287 S.W. (K.C. Ct. App.) l.c. 815: Simpson v. Chicago, R.I. & P. Ry. Co., 192 S.W. (Mo. Sup.) l.c. 741; and Porter v. Railway, Light, Heat & Power Co., 311 Mo. l.c. 76.] But we do not so construe our ruling in the Price case, and the writer of that opinion. GRAVES, C.J., in a vigorous dissenting opinion filed in the Simpson case, supra, disclaims any such intention, stating that it would have been improper to have given the instruction there in question because the defendant in other instructions, to which reference was there made, had outlined specific acts of negligence, and such an instruction is never proper in a res ipsa loquitur case. In each of the above cases the Price opinion was in this respect evidently given a different interpretation from that placed upon it by the writer of the opinion. The opinion in the Simpson case did not receive the full concurrence of a majority of the court, and BLAIR, C.J., dissented as to Paragraph II in...