Sullivan v. Union Electric Light & Power Co.

Decision Date31 December 1932
Docket NumberNo. 30356.,30356.
Citation56 S.W.2d 97
CourtMissouri Supreme Court
PartiesMARY SULLIVAN v. UNION ELECTRIC LIGHT & POWER COMPANY, a Corporation, J.E. FELTS and WILLIAM F. SCHULTE, Defendants; UNION ELECTRIC LIGHT & POWER COMPANY and J.E. FELTS, Appellants.

Appeal from Circuit Court of City of St. Louis. Hon. John W. Calhoun, Judge.

AFFIRMED.

E.C. Hartman, Fordyce, White, Mayne & Williams and Frank A. Habig for appellants.

(1) The trial court erred in refusing to give to the jury said defendants' instruction in the nature of demurrer to the evidence, and refusing to sustain said defendants' motion for new trial, because the preponderating credible evidence in this case was insufficient to sustain the verdict and judgment against these defendants, and the verdict was against the evidence, the weight of the evidence, and against the law, and the evidence under the law. Roseman v. United Rys. Co., 251 S.W. 106; Hook v. Mo. Pac. Ry. Co., 162 Mo. 580, 63 S.W. 360; Nugent v. Kauffman Milling Co., 131 Mo. 253, 33 S.W. 428; Payne v. C. & A. Railroad Co., 136 Mo. 583, 38 S.W. 308; Petty v. St. Louis & M. Railroad Co., 179 Mo. 277, 78 S.W. 1003; Champagne v. Hamey, 189 Mo. 727, 88 S.W. 92; Sexton v. Met. St. Railroad Co., 245 Mo. 272, 149 S.W. 21; Dunphy v. St. Joseph Stockyards Co., 118 Mo. App. 522, 95 S.W. 301; Davidson v. St. Louis & S.F. Railroad Co., 164 Mo. App. 713, 148 S.W. 406; Spiro v. St. Louis Transit Co., 102 Mo. App. 250, 76 S.W. 684; State v. Marcks, 140 Mo. 656; State ex rel. v. Clifford, 228 Mo. 194; Miller v. Wilson, 288 S.W. 997. (2) The trial court erred in giving and reading to the jury plaintiff's Instruction 1, because it was too general, misleading, confusing, and gave to the jury a roving commission to determine questions of liability whether pleaded or not, and because said instruction improperly charged these defendants with a higher degree of care than that complained of in the amended petition of the plaintiff. And because said instruction improperly submitted to the jury questions not pleaded, and questions not proved, and permitted the jury to find a verdict against these defendants, without setting out the proper or legal charges of negligence, and improper and insufficient facts that would not constitute liability or negligence against these defendants. Tyson v. Barnhard, 17 S.W. (2d) 270; Stakelback v. Neff, 13 S.W. (2d) 575; Head v. Lumber Co., 281 S.W. 441; Smith v. Anderson Co., 273 S.W. 741; Ward v. Poplar Bluff Co., 264 S.W. 80; Allen v. Quercus Lumber Co., 177 S.W. 753; Munos v. American Car, 296 S.W. 228; Allen v. Mo. Pac., 294 S.W. 80; Finley v. Continental Ins. Co., 299 S.W. 1107; Johnson v. A.T. & S.F. Ry., 290 S.W. 462; Menser v. Gentry, 290 S.W. 1014; Egan v. Palmer, 293 S.W. 460. (3) The court erred in giving defendant Schulte's Instruction 6, because it was too general, a mere conclusion, and confusing, and misleading, and failed to submit to the jury any of the charges of negligence pleaded, and gave the jury a roving commission. Peepers v. St. L. & S.F. Ry., 295 S.W. 757; Boland v. St. L. & S.F. Ry., 284 S.W. 141. (4) After the jury had retired from the trial room to the jury room for its deliberations in this case, it was prejudicial error for the trial judge to receive from the jury from the jury room request for additional instructions, without calling said jury into the court room, and said trial judge erred in giving and sending to the jury in its jury room an instruction charging them on matters not considered in the trial, or in open court, and failed to have such proceedings in open court in the presence of all the parties, or their counsel, and erroneously instructed the jury only as to two defendants. Chouteau v. Jupiter Iron Works, 94 Mo. 388; Berst v. Moxom, 163 Mo. App. 123 (5) During the trial of the case, defendant Schulte was asked the question, "If you had not applied your brakes at all and gone right straight on ahead, and the truck kept on coming like it did, would the truck have hit your Ford?" Objections and exceptions by these defendants upon grounds that question called for a conclusion and invaded the province of the jury, and objections overruled which permitted said witness to state his conclusion that it was the "truck that hit your Ford," and as to his conclusion as to whether he would have been struck, or would have struck the truck had he kept on, and because that was a vital question for the jury to pass upon, and such conclusion was contrary to the uncontradicted facts in the case as to the manner of striking. Marshall v. Taylor, 168 Mo. App. 240; Melican v. Whitlow, 278 S.W. 361; Johannes v. Becht Ldy. Co., 274 S.W. 377; Landau v. Travelers Ins. Co., 287 S.W. 346; Donkman v. Prudential, 289 S.W. 591; Clear v. Van Blarcom, 241 S.W. 81; Charlton v. St. Louis & S.F. Railroad, 200 Mo. 413; Kallher v. Parker Washington, 155 Mo. App. 372; Thomas v. Keyes, 214 Mo. 487; Heberling v. City, 133 Mo. App. 544; Gallagher v. City, 133 Mo. App. 557; Landers v. Railroad, 134 Mo. App. 80; Jopson v. Shaw, 211 Mo. App. 336; Unrein v. Oklahoma, 295 Mo. 353, 244 S.W. 924; Martin v. Kansas City, 224 S.W. 141; Disbrow v. Peoples Co., 170 Mo. App. 585; Minia v. St. L. Cooperage Co., 175 Mo. App. 91; Southern Iron Co. v. Smith, 257 Mo. 226; Nash v. Dowling, 93 Mo. App. 156; Masterson v. St. L. Transit, 204 Mo. 504; Madden v. Mo. Pac., 50 Mo. App. 666; Dubank v. City 88 Mo. 650.

Igoe, Carroll, Higgs & Keefe for respondent.

(1) Under the often repeated rule, their claim that the "weight of the evidence" favors them is foreclosed by the result below. Busby v. Southwestern Bell Tel. Co., 287 S.W. 434. (a) And their version of the evidence ignores the standard by which evidence must be measured in ruling a demurrer. Hall v. Manufacturers' Coal etc., Co., 260 Mo. 351, 168 S.W. 927. (2) Demurrers to the evidence were properly overruled. The controlling evidence amply shows that the collision was due to the negligence of the truck driver, as well as to the concurring negligence of the driver of the Ford. Hammond v. Emery-Bird-Thayer D.G. Co., 240 S.W. 173: Thompson v. Smith, 253 S.W. 1028: Mitchell v. Brown, 190 S.W. 354; Benzel v. Anishauzlin, 297 S.W. 180. (3) Plaintiff's Instruction 1 is not subject to the criticisms leveled against it. (a) It does not exceed the boundaries of the petition in declaring that the care required of the drivers of the two motor vehicles was the highest degree of care. Hults v. Miller, 299 S.W. 88; Tutie v. Kennedy, 272 S.W. 122. (b) If it did, appellants could not complain, since their own instruction told the jury the same thing. Coleman v. Rightmyer. 285 S.W. 405; Kaechelen v. Barringer. 19 S.W. (2d) 1039; Murphy v. Duerbeck, 19 S.W. (2d) 1043. (c) Neither did the instruction fail to hypothesize the facts upon which it authorized the jury to find negligence; and it clearly conforms to a specification of negligence pleaded in the petition. Instruction 1. (4) Appellants' claim that Schulte's Instruction 6 was erroneous may not be maintained here because it was not included in either appellant's motion for a new trial. Peterson v. Kansas City, 23 S.W. (2d) 1049; Johnson v. Underwood, 24 S.W. (2d) 136; Beebe v. Kansas City, 34 S.W. (2d) 58. (5) The action of the trial court in complying with the jury's request (made after it had retired to deliberate) for an additional instruction as to whether the assessment of damages might be apportioned between defendants was neither erroneous nor prejudicial to appellants. (a) Such action is within the power of a trial court as long as the instruction is in writing and all parties are given an opportunity to except thereto. State v. Daly, 210 Mo. 664, 109 S.W. 58; Beyer v. Hermann, 173 Mo. 295, 73 S.W. 166. (b) And since the short and simple proposition of law contained in this instruction was indisputably correct, no prejudice could have resulted therefrom in any event. Glenn v. Hunt, 120 Mo. 330, 25 S.W. 185. (c) The two cases cited by appellants upon this point are unlike the case at bar in both of the particulars above stated. Chouteau v. Jupiter Iron Works, 94 Mo. 388; Berst v. Moxom, 163 Mo. App. 123, 145 S.W. 857. (6) Testimony of defendant Schulte, elicited on cross-examination by counsel for plaintiff, that had he gone "right straight on ahead, and the truck kept on coming like it had," he would have gotten in front of, or partially in front of, the truck and been struck by it, was properly received for these reasons: (a) The ultimate fact expressed in this testimony, though in the form of a conclusion, was not only based entirely upon Schulte's actual observation at and immediately prior to the time of the collision, but was also a fact which could not be expressed in any other way since it was based on a number of minute data not susceptible of description in such a way as to put the jury completely in the witness' place and to enable it equally well to draw the inference. Such a conclusion is the best evidence of the ultimate fact, and so is admissible. Scanlon v. Kansas City, 28 S.W. (2d) 95; Heinbach v. Heinbach, 202 S.W. 1127; State v. Buechler, 103 Mo. 207, 15 S.W. 332; Kirchof v. United Rys. Co., 155 Mo. App. 83, 135 S.W. 101; Elliott v. Met. St. Ry. Co., 157 Mo. App. 522, 138 S.W. 664; 1 Greenleaf on Evidence (17 Ed.) pp. 549-550; 4 Wigmore on Evidence (2 Ed.) sec. 1924. (b) There are many closely analogous cases of application of this rule. Laycock v. United Rys. Co., 290 Mo. 344, 235 S.W. 96; Hartman v. Fleming, 264 S.W. 877; Standley v. Atchison, T. & S.F. Ry. Co., 121 Mo. App. 537, 97 S.W. 245; Sandry v. Hines, 226 S.W. 649; Smith v. Greer, 216 Mo. App. 155, 257 S.W. 830. And none of the numerous cases cited by appellants in their brief is authority to the contrary. Hence, appellants are in no position to complain of this evidence. Keyes v. C.B. & Q. Railroad Co., 31 S.W. (2d) 62; Gaty v. United Rys. Co., 251 S.W. 64; Chambers v. Chester, 172 Mo. 461, 72...

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