Stumpf v. Panhandle Eastern Pipeline Co.

• Decision Date: 02 July 1945
• Docket Number: 39314
• Parties: Earl Stumpf, Appellant, v. Panhandle Eastern Pipeline Company and Ossie W. Steele
• Court: Missouri Supreme Court

189 S.W.2d 223

354 Mo. 208

Earl Stumpf, Appellant, v. Panhandle Eastern Pipeline Company and Ossie W. Steele

No. 39314

Supreme Court of Missouri

July 2, 1945

Rehearing Denied September 4, 1945.

Appeal from Henry Circuit Court; Hon. Dewey P. Thatch Judge.

Reversed and remanded.

Crouch & Crouch, Vance Julian, Trusty & Pugh, Cowgill & Popham and Sam Mandell for appellants.

(1) The court erred in giving defendants' Instruction 6 because the instruction is fatally defective in that it failed to require a finding that plaintiff's contributory negligence therein hypothesized directly contributed to or caused plaintiff's injury. Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S.W. 1144; Hires v. Letts Melick Grocery Co., 296 S.W. 408; Nordman v. J. Hahn Bakery Co., 298 S.W. 1037. (2) Defendants' Instruction 6 was further erroneous because it charged plaintiff not with ordinary care, but with the highest degree of care in carrying on his work, "The Court instructs the jury that persons engaged in the discharge of dynamite or other explosives are under a duty to exercise such care as a very prudent man would exercise in carrying on such work." Tibbels v. Chicago Great Western R. Co., 219 S.W. 109; Senseney v. Landay Real Estate Co., 345 Mo. 128, 131 S.W.2d 595; Reichmuth v. Adler, 348 Mo. 812, 155 S.W.2d 181. (3) The court erred in giving defendants' Instruction 7 because the instruction is fatally defective in that it failed to require a finding that plaintiff's contributory negligence therein hypothesized directly contributed to or caused plaintiff's injury. See cases cited under (1). (4) Defendants' Instruction 7 is erroneous because it is purely general in character. Robinson v. M.-K.-T.R. Co., 123 S.W.2d 624. (5) Defendants' Instruction 7 was bad because it hypothesized facts not in evidence, that is, the presence of signs, vents or markers . . . crown of earth; or other evidence, if any of the whereabouts or course of said pipeline, etc. Brown v. St. Joseph, 184 Mo.App. 667, 171 S.W. 935. (6) It was error to give both defendants' Instruction 6 and defendants' Instruction 7, both on contributory negligence, because they were repetitious and doubly submitted the issue of contributory negligence and unduly emphasized the defense of contributory negligence. Wallace v. Herman Body Co., 349 Mo. 1093, 163 S.W.2d 923. (7) Defendants' Instruction 8 erroneously told the jury that "before the plaintiff is entitled to have a verdict . . . the burden is upon the plaintiff to prove his case against such defendant or defendants to your reasonable satisfaction by a preponderance of the credible evidence of the case." Johnson v. Dawidoff, 177 S.W.2d l.c. 472; Padgett v. Mo. Motor Distributing Corp., 177 S.W.2d l.c. 493. (8) Defendants' burden of proof Instruction 8, is further erroneous because it is argumentative and belittling, telling the jury ". . . The mere fact that the plaintiff sustained an injury does not make defendants or either of them liable . . ." Browning v. Browning, 226 Mo.App. 322, 41 S.W.2d 860; Licklider v. Domian, 96 S.W.2d l.c. 642. (9) The court erred in giving defendants' Instructions 4 and 5 which, by informing the jury that the respective defendants were under no duty to plaintiff to erect warning signs or markers to indicate the location of their pipelines, conflicted with plaintiff's Instruction 1. Bankhead v. First Natl. Bank, 137 S.W.2d 594; State ex rel. v. Hughes, 144 S.W.2d 84; Mahaney v. K.C., C.C. & St. J. Auto Transit Co., 329 Mo. 793, 46 S.W.2d 817. (10) Respondents' counsel injected prejudicial and extraneous matters into the case by stating to plaintiff on cross-examination, and with reference to hospital and doctor bills, "You didn't pay them, did you?" and the court erred in denying appellant's motion to discharge the jury because of the prejudicial effect of such statement. Gettys v. American Car & Foundry Co., 322 Mo. 787, 16 S.W.2d 85.

Ray Shubert, Haysler Poague, Alfred Kuraner, Johnson & Davis and Lowell R. Johnson for respondents.

(1) The defendant's separate motion for a directed verdict at the close of all the evidence should have been sustained because there was no evidence of any negligence on the part of either of the defendants entitling the plaintiff to recover. 2 Restatement of Law of Torts, sec. 342(e), pp. 935 (f), 936; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Stevenson v. Kansas City So. Ry. Co., 348 Mo. 1216, 159 S.W.2d 260; Smith v. Western Union Telegraph Co., 232 S.W. 480; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801; Priest v. F. W. Woolworth, 62 S.W.2d 926; Hickman v. Union Electric L. & P. Co., 226 S.W. 570; George v. Tri-State Gas Co., 74 W.Va. 177, 81 S.E. 722. (2) The defendants' separate motions for a directed verdict at the close of all the evidence should have been sustained because the plaintiff was guilty of negligence as a matter of law, barring his right to recover. Rubio Cannon Land & Water Assn. v. Everett, 154 Cal. 29, 96 P. 11; Senseney v. Landay Real Estate Co., 131 S.W.2d 595, 345 Mo. 128. (3) The court did not err in giving defendants' requested Instruction 6. Said instruction was not defective because it failed to require the jury to find that plaintiff's negligence directly contributed to cause his injury. Jones v. Central States Oil Co., 164 S.W.2d 914; Waters v. Crites, 166 S.W.2d 496; Howard v. Scarritt & Co., 184 S.W. 1144. (4) Defendants' Instruction 6 was not erroneous as placing an undue burden on the plaintiff or as charging him with a higher degree of care than required of him. 22 Am. Jur., sec. 14, p. 136; Dowell v. Guthrie, 116 Mo. 646; Schaefer v. Frazier Davis Const. Co., 125 S.W.2d 897. (5) The court did not err in giving defendants' Instruction 7. Said instruction was not defective because it failed to require the jury to find that plaintiff's negligence directly contributed to cause the injury. (6) Defendants' Instruction 7 was not of such a general character as to be erroneous. The court did not err in approving said instruction. (7) Defendants' Instruction 7 was not erroneous as hypothecating facts not in evidence. (8) Defendants' Instruction 6 and Instruction 7 were not repetitious and did not doubly submit plaintiff's contributory negligence or over emphasize plaintiff's contributory negligence. Wallace v. Herman Body Co., 349 Mo. 1039, 163 S.W.2d 923. (9) Defendants' Instruction 8 was not erroneous because it required the plaintiff to prove his case to the reasonable satisfaction of the jury. Johnson v. Dawidoff, 177 S.W.2d 467; Padgett v. Distributing Corp., 177 S.W.2d 490. (10) Defendants' Instruction 8 was not erroneous because it stated to the jury that "the mere fact that the plaintiff sustained an injury does not make defendants or either of them liable in this case." Browning v. Browning, 41 S.W.2d 860; Licklider v. Domian, 96 S.W.2d 641; 1 Raymond on Instruction, secs. 2181, 2182; Manthey v. Kellerman Contr. Co., 277 S.W. 927, 311 Mo. 147; Orris v. Railway Co., 214 S.W. 124. (11) The court did not err in giving instructions 4 and 5 and instructing the jury thereby that neither of the defendants were under any duty to the plaintiff to erect warning signs or markers to indicate the location and presence of this pipe line. (12) No error was committed in the cross-examination of the plaintiff with respect to the payment of hospital and doctor bills. Gettys v. American Car & Foundry Co., 322 Mo. 787, 16 S.W.2d 85.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Appeal from a judgment entered upon verdict for defendants in an action for $ 75,000 damages for personal injuries.

Plaintiff-appellant, an employee of the Consolidated Electric Co-operative (hereinafter referred to as "REA"), was injured when the explosion of a dynamite charge burst the high-pressure gas pipeline of defendant-respondent, Panhandle Eastern Pipeline Company (hereinafter sometimes referred to as "defendant Company"). The escaping gas was ignited by the explosion, and flames enveloped plaintiff. The explosion occurred at a point south of State Highway Route 22 in Audrain County, about two miles west of the city of Mexico. In this locality the highway runs approximately east and west, and is paved with a 22-foot concrete slab which had been laid within a few weeks prior to the explosion. Tracks of The Alton Railroad Company and the Wabash Railroad Company are south of and parallel with the highway, the track of The Alton Railroad Company being nearer. The distance from the south line of the pavement to the north line of the right-of-way of The Alton Railroad Company is about 185 feet. The ground between the slab and the railroad right-of-way is "controlled" by the State Highway Department from whom defendant Company has secured a "permit" in 1930 to lay their pipelines across the highway. Defendant Company has two 22-inch pipelines traversing the area and passing under the railways and highway; one of the pipelines (the north one) was laid in a northeast-southwest direction, and passes under the south line of the slab at a point due north of the scene of the explosion; the angle of the crossing at the highway is 35 degrees; the south pipeline (the one which was broken by the dynamite charge) is 70 or 80 feet away, and crosses the highway at an angle of 41 degrees 15'. A power line of the REA is north of the highway and, coming from the west, parallels the highway until it is nearly opposite and north of the scene of the explosion where it turns and extends northwardly.

When plaintiff was injured, he and two other employees of REA were excavating a hole (at the point of explosion, being 90 or 100 feet south of the center of the highway) to accommodate an anchor by which a permanent stub pole was to be braced. It...