Took v. Wells

• Citation: 53 S.W.2d 389,331 Mo. 249
• Parties: Florence Took, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis
• Decision Date: 28 September 1932
• Court: United States State Supreme Court of Missouri

53 S.W.2d 389

331 Mo. 249

Florence Took, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis

Supreme Court of Missouri

September 28, 1932

Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge.

Reversed and remanded (with directions).

Bass & Bass and John Grossman for appellant.

(1) Instructions 1, 2, and 3 given on behalf of plaintiff are not conflicting with the evidence, and the words "immediately in front of," as used in all three instructions, designate direction of the particular Taylor Avenue street car which struck plaintiff as contradistinguished from designation of Broadway street car which was located and described as eastward and a short distance southward. (2) The "error" pointed out by the court in its order granting a new trial is not such as would constitute a variance; in order to constitute a variance there must be a disagreement between the proof and the instructions in some matter, which, in point of law, is essential to the charge or claim. 39 Cyc. 1122. Or there must be a substantial departure from the issue in the evidence adduced. 39 Cyc. 1122; Steckman v. Railroad, 178 Mo.App. 378; Klass v. Met. Street Ry. Co., 155 S.W 58. (3) The "error" (if such the court holds it) pointed out by the court in its order granting a new trial to the respondent herein, is harmless, and not prejudicial, and could not have misled the jury in view of the fact that no objection was made to the introduction of the evidence, nor in view of the fact that there was no dispute as to any fact concerning the manner in which appellant sustained her injuries. Morris v. Railroad, 184 Mo.App. 114; George v. Railroad Co., 225 Mo. 399; Hoffman v Phillip A. Rohan Boat Co., 294 S.W. 758; Selinger v. Cromer, 208 S.W. 871. (4) (a) An instruction, though erroneous, does not justify a new trial if it had no injurious effect; instructions numbered 1, 2, and 3 given on behalf of plaintiff and modified by the court had no injurious effect and could not have misled the jury, there being no dispute as to the fact that a certain street car at a certain point, to-wit: C, struck plaintiff. Case v. Jefferson City Bridge & Transit Co., 221 S.W. 804. (b) Giving of erroneous instruction is not ground for setting aside a verdict where it is manifest from the undisputed facts that party complaining was not prejudiced. Dorroh v. Holland Bank, 7 S.W.2d 374; Van Leer v. Wells, 263 S.W. 493; Cunningham v. Railway Co., 215 S.W. 5; Myerson v. Peoples Motorbus Co., 297 S.W. 455; Berry v. Railway Co., 114 S.W. 27. (c) Instructions which are so irrelevant that they could not have misled the jury will not be grounds for reversal. Cordes v. Straszer, 8 Mo.App. 61; Valle v. Picton, 91 Mo. 215; Nelson Mfg. Co. v. Mitchell, 38 Mo.App. 329; Brown v. Davis, 32 S.W.2d 145. (5) (a) The court shall in every step of the action disregard any error or defect in the proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be affected by reason of such error or defect. Sec. 1276, R. S. 1919; Morris v. Railroad, 184 Mo.App. 114; George v. Railroad, 225 Mo. 399; Selinger v. Cromer, 208 S.W. 873; Van Leer v. Wells, 263 S.W. 493. (b) The Supreme Court shall not reverse the judgment of any court unless it shall believe that error was committed by such court against the appellant and materially effecting the merits of the action. Sec. 1513, R. S. 1919; Morris v. Railroad Co., 184 Mo.App. 114; Van Leer v. Wells, 263 S.W. 493. (6) When no objection is made to the introduction of evidence, the petition will be considered as amended to conform to the evidence. Whitehead v. Koberman, 299 S.W. 121; Treece Bank v. Wade, 283 S.W. 714; Ehrlich v. Mittelberg, 252 S.W. 671. (7) Party regarding instruction as misleading cannot be heard to complain, where he failed to ask one more to his liking. Reed v. Culler, 32 S.W.2d 298; Sallee v. Railway Co., 12 S.W.2d 476.

T. E. Francis, B. G. Carpenter and Allen, Moser & Marsalek for respondent.

(1) Defendants' motion for new trial was properly sustained on the grounds specified by the trial court, namely, that the court erred in giving the three instructions, No. 1, No. 2 and No. 3, because each of them predicated a right of recovery upon the theory that plaintiff was struck by the car "immediately in front of" the car from which she had alighted, when there was no evidence to support such theory. (a) It is error to give an instruction authorizing a finding unsupported by the evidence. An instruction must not be contrary to the evidence or broader than the evidence. Dixon v. Construction Co., 318 Mo. 63; State ex rel. Goessling v. Daues, 314 Mo. 287; Rettlia v Salomon, 308 Mo. 673; Esstman v. United Railways Co., 216 S.W. 526; Doody v. Woolen Mills Co., 230 S.W. 377. And under the circumstances, because of the obvious errors in these instructions noted by the trial court, said instructions were highly confusing, misleading and prejudicial. (b) Even if the errors in these instructions specified by the trial court as grounds for awarding the new trial could be regarded as not sufficiently prejudicial to warrant a reversal had the motion for a new trial been overruled (which respondent disputes), the order granting the new trial should be affirmed, since the trial judge, with his intimate knowledge of the whole situation at the trial, deemed them prejudicial. Stafford v. Ryan, 276 S.W. 636; Ittner v. Hughes, 133 Mo. 679; Bunyon v. Citizens Railway Co., 127 Mo. 22; Wells v. Wilson, 293 S.W. 129; Strother v. Sieben, 220 Mo.App. 1034. (c) The trial judge is vested with a sound discretion in granting a new trial on the ground of erroneous, misleading instructions, since he is in a far better position than an appellate court to judge of the effect of the istructions on the jury. Stafford v. Ryan, 276 S.W. 636; Strother v. Sieben, 220 Mo.App. 1034; Ismert-Kincke Milling Co. v. Mercurio Bros., 243 S.W. 410; Hoepper v. Southern Hotel Co., 142 Mo. 388; McCarty v. Transit Co., 192 Mo. 396. (2) An order granting a new trial will be sustained for any error pointed out by respondent warranting the granting of a new trial and constituting a ground of the motion, though not specified by the trial court. Spencer v. Barlow, 319 Mo. 835, 5 S.W.2d 28; Thayer v. Halterman, 10 S.W.2d 663. (3) The giving of instructions No. 1 and No. 2, each submitting the case on an assignment of primary negligence, was error warranting the new trial, for the reason that plaintiff's own testimony convicts her of negligence as a matter of law, precluding a recovery upon any charge of primary negligence. Garvey v. Rhode Island Co., 26 R. I. 180, 58 A. 456; Beeck v. Railroad Co., 135 N.Y.S. 600; Jelly v. Railroad Co. (N. J. L.), 68 A. 1091; Hoffman v. Philadelphia Rapid Transit Co., 214 Pa. 87, 63 A. 409; Matulewicz v. Met. St. Railroad Co., 107 A.D. 230, 95 N.Y.S. 7; French v. Power Co., 95 W.Va. 707, 122 S.E. 171; St. Railroad Co. v. Bessee (Ky.), 108 S.W. 848, 16 A. L. R. 890; Railroad Co. v. Ray (Ky.), 124 S.W. 313; Laurent v. United Rys. Co., 191 S.W. 992; Waldmann v. Skrainka Const. Co., 289 Mo. 622; Curtis v. Capitol Stages Line Co., 27 S.W.2d 747; Smith v. Wells, 31 S.W.2d 1014. (4) Instruction 1 was further erroneous, warranting the new trial. (a) There was no evidence at all that those in charge of the car saw or knew that "persons, and particularly plaintiff, were walking in such dangerous and close proximity to said street car that plaintiff was likely to be injured upon said street car starting up and rounding said loop." And no one but plaintiff was at any time in dangerous proximity to the car. (b) And, under the circumstances, there was no negligence on the part of the operators of the car in putting it in motion, since they were not required to anticipate that plaintiff, instead of going across to the Broadway car, would needlessly and heedlessly go to the point marked "D" on the plat and put herself within the range of the "overhang" of the car as it rounded the curve. Siegel v. Wells, 287 S.W. 775; Garvey v. Rhode Island Co., 26 R. I. 180, 58 A. 456; Beeck v. Railroad Co., 135 N.Y.S. 600; Jelly v. Railroad Co., 68 A. 1091; Hoffman v. Philadelphia Rapid Transit Co., 214 Pa. 87, 63 A. 409; Matulewicz v. Met. St. Railroad Co., 107 A.D. 230, 95 N.Y.S. 7; French v. Power Co., 95 W.Va. 707, 122 S.E. 171; Railroad Co. v. Bessee (Ky.), 108 S.W. 848, 16 A. L. R. 890; Railroad Co. v. Ray, 124 S.W. 313; Butler v. United Rys. Co., 293 Mo. 259; Tuck v. Railway Co., 268 S.W. 682. (5) Furthermore, since plaintiff knew that these Taylor cars that she was passing always started up and went on around this curve after discharging their passengers, and knew where the curve was and just what was the overhang of the car at that point, and says she thought she was keeping far enough away to avoid being struck, a signal indicating that the car was starting up would have added nothing to her knowledge. Nahorski v. St. Louis Elec. Term. Rys. Co., 271 S.W. 751; Gubernick v. United Railways Co., 217 S.W. 33. (6) (a) There was no evidence to warrant a finding that after plaintiff became in imminent peril of being struck by the rear of the car as it turned the curve, the operators of the car could have averted her injury by stopping the car or slacking the speed thereof. No duty arises, under the humanitarian or last chance rule, until a situation of imminent, peril comes into existence, and the defendant has actual or constructive notice of such peril. Siegel v. Wells, 287 S.W. 775; McGowan v. Wells, 324 Mo. 652; Sisk v. Construction Co., 316 Mo. 1143; State ex rel. Fleming v. Bland, 322 Mo. 565; Todd v. Railway Co., 37 S.W.2d 562; Banks v. Morris & Co., 302 Mo. 267; Lackey v. United Rys. Co., 288 Mo. 120; Butler v. United Rys....