Thompson v. St. Joseph Ry., Light, Heat & Power Co.

• Decision Date: 05 September 1939
• Docket Number: 34190
• Citation: 131 S.W.2d 574,345 Mo. 31
• Parties: Milton Thompson, Appellant, v. St. Joseph Railway, Light, Heat & Power Company
• Court: Missouri Supreme Court

131 S.W.2d 574

345 Mo. 31

Milton Thompson, Appellant, v. St. Joseph Railway, Light, Heat & Power Company

No. 34190

Supreme Court of Missouri

September 5, 1939

Appeal from Buchanan Circuit Court; Hon. J. V. Gaddy Special Judge;

Affirmed and remanded.

R E. Culver, Ben Phillips, Alve F. Lindsay and B. L Kauffman for appellant.

(1) The court erred in sustaining the motion for a new trial on the ground that defendant's Instruction B, a demurrer asked at the close of all the testimony, should have been given. (a) The ruling was based either upon the contention that there was no evidence to show that the men whose negligent act caused plaintiff's injuries were in the employ of and working for the defendant as its servants at the time, or that plaintiff was guilty of contributory negligence as a matter of law. In ruling the demurrer, the court could consider only the testimony most favorable to the plaintiff and give him the benefit of all reasonable inferences that could be drawn therefrom and there was sufficient evidence not only to create the inference but to establish definitely that the men were the servants of and working for the defendant. It was conceded that all of the men were in the general employ of the defendant and if it claimed that they had been loaned to Doniphan Company and had become its servants, the defendant should have produced the evidence to prove that fact, and even then the question would have been for the jury. Semper v. Amer. Press, 273 S.W. 189; Knoche v. Pratt, 194 Mo.App. 304; Andrews v. Cox, 23 S.W.2d 1069. (2) The court sustained the motion for a new trial solely on the ground that it erred in refusing the defendant's Instruction B, the demurrer at the close of all the testimony, and erred in giving plaintiff's Instruction 2. In ruling that he erred in those respects only, the court overruled all other grounds for a new trial contained in the motion, among which was that the court erred in refusing defendant's Instruction A. Sakowski v. Baird, 69 S.W.2d 649; Cole v. St. L.-S. F. Ry. Co., 61 S.W.2d 344. By ruling that Instruction A was properly refused, the court ruled that there was sufficient evidence at the close of plaintiff's case to take it to the jury. In ruling that Instruction B should have been given at the close of all the testimony, the court necessarily ruled that the defendant's evidence conclusively overcame the prima facie case made by the plaintiff. That was error. Where the plaintiff once makes a prima facie case, not based upon a presumption, the case can never be taken from the jury, no matter how strong the defendant's testimony may be. Peterson v. Railroad Co., 265 Mo. 480; Cuccio v. Railroad Assn., 190 Mo.App. 379. (3) The court erred in ruling that plaintiff's Instruction 2 was erroneous in that it did not require the jury to find all the necessary facts to constitute negligence nor all the necessary facts to constitute agency. (a) There was only one charge of negligence on which the plaintiff went to the jury and that was that the defendant's servants negligently failed to disconnect the wire which injured the plaintiff. The jury were required to find that in the circumstances detailed and shown in the evidence the one ultimate fact, that it was the duty of the defendant to disconnect the wire and that it negligently failed so to do. There was no other fact to be found. (b) The instruction required the jury to find that the person who was guilty of the act of negligence charged was at the time in the employ of and working for the defendant under the direction of a foreman employed by and working for the defendant. It was proper for the instruction to submit to the jury only the ultimate fact which the jury was required to find. Bank v. Morris & Co., 302 Mo. 268; Smith v. Greer, 216 Mo.App. 161.

Mayer, Conkling & Sprague for respondent.

(1) In considering appeals from orders granting new trials, the Supreme Court will affirm such orders based upon errors which occurred at the trial, which errors probably would not be regarded as sufficient to secure a reversal had the motion for new trial been overruled. Bunyan v. Citizens' Ry. Co., 127 Mo. 22; Ittner v. Hughes, 133 Mo. 692; Hoepper v. Southern Hotel Co., 142 Mo. 387; Stafford v. Ryan, 276 S.W. 637; Wolfson v. Cohen, 55 S.W.2d 681; Delaplain v. Kansas City, 109 Mo.App. 112; Miles v. Haney, 190 Mo.App. 220; Licklider v. Domain, 96 S.W.2d 641. (a) The court committed no error in granting defendant a new trial. (b) No act or commission of the defendant was the proximate cause of the injury. Strack v. Telephone Co., 216 Mo. 601. (2) The plaintiff was guilty of contributory negligence as a matter of law. Junior v. Mo. Elec. L. & P. Co., 127 Mo. 79; Egan v. Trenton G. & E. Co., 233 S.W. 239; Kentucky Pub. Serv. Co. v. Morris, 242 S.W. 599; Wray v. Southwest L. & P. Co., 68 Mo.App. 380. (3) The court had erred in giving plaintiff's Instruction 2, because: (a) The instruction purported to cover the whole case and directed a verdict for the plaintiff. It omitted altogether a vital element of plaintiff's case, in that it failed to require a finding that at the time the wires F and G were cut, there were no wires attached to said wires F and G at the letters L and M and running to the filling station mentioned in the evidence. State ex rel. v. Ellison, 272 Mo. 583. (b) The instruction was erroneous in submitting to the jury a pure question of law. Macklin v. Const. Co., 326 Mo. 50; Bollinger v. Curtis & Co., 249 S.W. 907; Menefee v. Scally, 247 S.W. 259; Bollmeyer v. Eagle Mill & Elevator Co., 206 S.W. 917. (c) Moreover, the instruction not only failed to submit an issue vital to plaintiff's case and it not only submitted a pure question of law, but the instruction was unconscionably prolix, made up of one sentence covering almost four printed pages of the record; it submitted immaterial, extraneous, irrelevant and prejudicial matters, and was so involved as to mislead and confuse the jury. Clark v. Atchison Bridge Co., 324 Mo. 564; Dawes v. Sterrett, 336 Mo. 897; Stid v. Railway, 236 Mo. 382, 398; Williams v. Ransom, 234 Mo. 66; Silliman v. Munger Laundry, 329 Mo. 244.

Leedy, J. All concur, except Clark, J., not sitting, and Gantt, J., absent.

OPINION

LEEDY

Action by plaintiff, appellant here, to recover damages for alleged personal injuries. Plaintiff had a verdict in the sum of $ 20,000, which the trial court set aside, and sustained defendant's (respondent's) motion for a new trial, and plaintiff appealed. The appeal was argued and submitted in Division # 1, wherein an opinion was adopted by which the order and judgment granting the new trial was reversed and the cause remanded with directions to reinstate the verdict, and enter judgment in conformity therewith. Thereafter, on the division's own motion, the cause was transferred to the court en banc, where it has been re-argued, briefed and submitted.

The trial court, in sustaining defendant's motion for a new trial, assigned the following reasons:

"1. For failing to give Instruction B (demurrer to the evidence), offered by defendant.

"2. For giving Instruction No. 2 offered by plaintiff; that said Instruction No. 2, in the opinion of the court, did not require the jury to find all the necessary facts to constitute negligence nor all the necessary facts to constitute agency."

The issues on the present submission have been sharply narrowed, so that the only contentions are:

1. That the demurrer should have been sustained because (a) no act or omission of the defendant was the proximate cause of injury, and (b) plaintiff was guilty of contributory negligence as a matter of law;

2. That error was committed in giving plaintiff's Instruction No. 2 because (a) the instruction purported to cover the whole case and directed a verdict but omitted altogether a vital element of plaintiff's case, and (b) in submitting to the jury a pure question of law. The divisional opinion held that the question of defendant's negligence, as well as that of plaintiff's contributory negligence, were both for the jury, and as we have come to the same conclusion, said opinion, with certain modifications, may be used as the general framework for the present opinion, insofar as those questions are concerned. It will be so utilized without resort to quotation marks to distinguish between old and new matter.

Plaintiff was an electrician and had been employed as such for about 15 years by the city of Wathena, Kansas. About April 6, 1933, he was directed by the city clerk to remove a meter box from a pole (referred to in the evidence as the meter box pole), and while attempting to do so, he came in contact with primary wires carrying 2300 volts and received severe injuries. The city of Wathena obtained its electricity from defendant, but owned and operated the transmission line which passed through the town of Elwood, Kansas. Elwood is on or near the Missouri River, and immediately west of St Joseph, Mo. Wathena is a few miles west of Elwood. Prior to January 2, 1933, Elwood received its current from Wathena transmission line under a contract with Wathena, but on that date Elwood entered into a contract with the Doniphan County Power & Light Company, (referred to hereinafter as the Doniphan Company) by which contract that company was to furnish current to Elwood, and in order to then furnish Elwood, the Doniphan Company leased from Wathena a part of the Wathena transmission line. The lease was for a period ending March 31, 1933. The portion leased was from the bridge-end, across the river from St. Joseph, to a certain pole in the west part of Elwood. The Doniphan Company, a Kansas corporation, also got its current from defendant. January 2nd, the Doniphan Company began moving current over the...