The State ex rel. Goessling v. Daues

• Citation: 284 S.W. 463,314 Mo. 282
• Decision Date: 21 May 1926
• Docket Number: 26457
• Parties: THE STATE ex rel. EDNA GOESSLING v. CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals
• Court: United States State Supreme Court of Missouri

284 S.W. 463

314 Mo. 282

THE STATE ex rel. EDNA GOESSLING v. CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals

No. 26457

Supreme Court of Missouri

May 21, 1926

Record quashed.

Mark D. Eagleton, John F. Clancy, E. J. Hullverson and Harry S. Rooks for relator.

In holding that there was evidence from which the jury could be permitted to find that failure to use skid chains on the truck was the sole cause of the collision and plaintiff's injuries, and in holding that it was reversible error for the trial court to refuse said instruction, the decision and opinion of the Court of Appeals is in conflict with the following controlling decisions of the Supreme Court, to-wit Rettlia v. Salomon, 274 S.W. 366; Kane v. Mo Pac. Ry. Co., 251 Mo. 13; Plefka v. Knapp, Stout & Co., 145 Mo. 316; Goransson v. Mfg. Co., 186 Mo. 300; Strother v. Railroad, 188 S.W. 1102; Shunk v. Harvey, 284 Mo. 343; Warner v. Railroad Co., 178 Mo. 125. The above cases hold that evidence of failure to use a device that might merely have tended to prevent the occurrence that caused the injuries, without evidence adequate to show that the device if actually used would have prevented the injury, is insufficient to justify or require submission to the jury of the question whether failure to use the device did in fact cause the injuries. The opinion of the Court of Appeals holds contrary thereto and is in conflict with them.

Bryan Williams & Cave for respondents.

The Court of Appeals in its opinion finds that "there was much evidence introduced tending to show that the collision was caused by the failure on the part of the driver to have his truck equipped with skid chains when he should have done so." And this Honorable Court cannot look beyond that opinion to determine whether such was, in fact, the case. But taking these facts as stated to be true, the only question for this court is one of conflicting or not conflicting between that opinion and any opinion of this court. State ex rel. v. Allen, 295 Mo. 307; State ex rel. v Allen, 294 Mo. 214; State ex rel. v. Allen, 303 Mo. 318; State ex rel. v. Trimble, 299 Mo. 173; State ex rel. v. Trimble, 292 Mo. 377; State ex rel. v. Ellison, 281 Mo. 677. (a) Assuming the facts to be as stated by the Court of Appeals in its opinion, there cannot be even a contention that the opinion of the Court of Appeals is in conflict with any holding of this court. (b) And relator contends, and contends only, that the evidence in the case did not justify the statement of facts as made by the Court of Appeals in its opinion. In fact, relator goes so far as to say there is no evidence to sustain the finding set out in the opinion. With that question, this court has no power to concern itself.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

On the application of relator we issued our writ of certiorari to review the opinion and judgment of the St. Louis Court of Appeals reversing and remanding a judgment of the Circuit Court of the City of St. Louis in favor of the relator against Excelsior Press Company for damages for personal injuries sustained by relator in consequence of a collision between a Ford car driven by her husband, in which she was riding, and a truck driven by defendant's employee, on a slippery hard-surfaced street in the city of St. Louis. The following excerpts from the opinion of the learned Court of Appeals (270 S.W. 390) will suffice for a statement of the facts and rulings complained of. (Italics ours.)

"At the time of the accident the Ford car was ascending the grade and the truck was descending. The truck was being driven downgrade on the south side of the street, but near the center. The Ford car was traveling at the rate of about twelve miles per hour and the truck about eighteen miles per hour. When the truck got within two or three lengths away from the car in which plaintiff was riding the rear of the truck skidded around to the north, making a circle, and the rear right wheel of the truck hit the front wheel of the Ford . . . The driver of the truck, on the part of defendant testified that the truck skidded, but that it did not strike the car in which plaintiff was riding. . . . On cross-examination of defendant's witness Wright, who was the driver of the truck, plaintiff's counsel asked him if he had skid chains with him, to which he answered, 'Yes, sir.' Counsel for defendant objected, after this question was asked and answer given, to the introduction of this testimony on the ground that it was not pleaded. The court overruled this objection and defendant excepted, after which witness was examined at some length with respect to why he had not put skid chains on. There were no further objections made in the testimony, nor any motion made to strike out what had been introduced. In addition to the instructions heretofore referred to as given in the case [on the measure of damages] the defendant requested the court to give the following instruction, which the court refused to give: 'The court instructs the jury if you find and believe that the injuries, if any, to plaintiff were directly and solely caused by the fact that the defendant's automobile was not equipped with skid chains, then your verdict must be for the defendant.' . . .

"If plaintiff by proper instructions had requested the court to define the issues submitted to the jury for their consideration, the refusal of this instruction requested by defendant would doubtless not have been error. But no act of negligence in failing to have the truck equipped with skid chains was pleaded in the petition, and, therefore, plaintiff could not base her right to recover upon this act of negligence even if it had been...