Trower v. M.-K.-T. Railroad Co.

• Decision Date: 01 December 1944
• Docket Number: No. 39081.,39081.
• Citation: 184 S.W.2d 428
• Parties: HARRY A. TROWER v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

184 S.W.2d 428

HARRY A. TROWER v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.

No. 39081.

Supreme Court of Missouri.

Division One, December 1, 1944.

Rehearing Denied, January 2, 1945.

Appeal from Jackson Circuit Court. — Hon. Paul A. Buzard, Judge.

REVERSED AND REMANDED.

Carl S. Hoffman and Cooper, Neel, Sutherland & Rogers for appellant.

(1) The procedure followed by the court in selecting a substitute juror to replace juror Estes, during the course of the trial, was not authorized by statute and was unknown at common law. 31 Am. Jur., p. 698, sec. 190; State v. Dolbow, 189 Atl. 915; People v. Peete, 202 Pac. 65; State ex rel. St. Louis, Keokuk & N.W. Ry. Co. v. Withrow, 133 Mo. 500; Dennis v. State, 50 So. 499; 1 Thompson on Trials (2d Ed.), sec. 90; Norvell v. Deval, 50 Mo. 272. (2) Said procedure was prejudicial to defendant because it denied defendant the right to select a jury from a panel of eighteen qualified jurors with the privilege of three peremptory challenges directed to the remaining fifteen members after plaintiff had announced his challenges. Secs. 719, 720, R.S. 1939; Kidd v. Chicago, R.I. & P. Ry. Co., 274 S.W. 1079; Cunningham v. Prusansky, 59 Mo. App. 498; Carroll v. United Rys. Co., 157 Mo. App. 247; Shield v. Kansas City Rys. Co., 264 S.W. 890; State v. McCarron, 51 Mo. 27; State v. Steeley, 65 Mo. 218. (3) The court erred in refusing defendant's Instruction B in the nature of a demurrer at the close of all the evidence, for the reason that the evidence failed to show defendant could have averted the collision after plaintiff was in a position of inescapable peril and his negligence had ceased. Trower v. M.-K.-T.R. Co., 149 S.W. (2d) 792; State ex rel. Thompson v. Shain, 173 S.W. (2d) 406; Ferguson v. Lang, 126 Kan. 273; Sharp v. Sproat, 111 Kan. 735; Hooker v. Mo. Pac. Ry. Co., 134 Kan. 762; Goodman v. Kansas City, Merriam & Shawnee Ry. Co., 137 Kan. 508; 2 Am. Jur., p. 14, sec. 3; Landrum v. St. Louis, I.N. & S. Ry. Co., 178 S.W. 273; Smith v. St. L. & S.F. Ry. Co., 9 S.W. (2d) 939; Lynch v. M.-K.-T.R. Co., 61 S.W. (2d) 918; Buckheim v. A., T. & S.F. Ry. Co., 147 Kan. 192; Moore v. E. St. L. & Sub. Ry. Co., 54 S.W. (2d) 767; Hall v. St. L.-S.F. Ry. Co., 240 S.W. 175. (4) Instruction 1 was erroneous, due to its unnecessary length, repetition of matters therein, its argumentative nature and its incoherence. Wolfe v. Payne, 294 Mo. 170; Williams v. Ransom, 234 Mo. 55; Sidway v. Missouri Land & Livestock Co., Ltd., 163 Mo. 342; Castle v. Wilson, 183 S.W. 1106; Siberall v. St. L.-S.F. Ry. Co., 9 S.W. (2d) 912; Williams v. Guyot, 126 S.W. (2d) 1137. (5) Said instruction erroneously placed the duty on defendant's engineer to act before plaintiff was in inescapable peril. State ex rel. Thompson v. Shain, 173 S.W. (2d) 406. (6) Said instruction refers to primary negligence of the defendant in failing to keep a lookout, and permits the jury to consider such primary negligence as determinative of liability under the last chance doctrine. Mayfield v. Kansas City So. Ry. Co., 85 S.W. (2d) 116; White v. Kansas City Pub. Serv. Co., 149 S.W. (2d) 375; Freeman v. Berberich, 60 S.W. (2d) 393; Wholf v. K.C., C.C. & St. J. Ry. Co., 73 S.W. (2d) 195. (7) Said instruction eliminates the defense that the collision was due to the sole negligence of Mr. Riggins, the driver of the automobile. Long v. Mild, 149 S.W. (2d) 853; Smithers v. Barker, 111 S.W. (2d) 47; Bebout v. Kurn, 154 S.W. (2d) 120. (8) Said instruction is broader than the evidence in that it directs a verdict on a finding that the collision could have been avoided by slackening the speed of the motor train, without evidence to support such finding. Kick v. Franklin, 117 S.W. (2d) 284; Karte v. J.R. Brockman Mfg. Co., 247 S.W. 417; State ex rel. Central Coal & Coke Co. v. Ellison, 195 S.W. 722; Degonia v. Railroad Co., 224 Mo. 564. (9) Said instruction singles out and gives undue prominence to and comments on evidence favorable to plaintiff. Zumwalt v. Chicago & A.R. Co., 266 S.W. 717; Barr v. City of Kansas, 105 Mo. 550. (10) Said instruction is argumentative. 1 Raymond, Missouri Instructions, sec. 102; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 746; Rockenstein v. Rogers, 31 S.W. (2d) 792.

C.O. Inman, A.C. Popham and Trusty & Pugh for respondent.

(1) There was no violation of any statutory provision and no error and no prejudicial error in the selecting of the jury, and there was no objection to the discharge of the juror, Estes, and no request or demand to rechallenge any of the remaining jurors. And defendant has not sufficiently preserved the issue for review. Secs. 973, 1228, R.S. 1939; Silsby v. Foote, 14 How. 218, 14 L. Ed. 394, 55 U.S. 218; 3 Am. Jur., sec. 1050, p. 602; McGuire v. State, 37 Miss. 369; Rex v. Edwards, 4 Tautons 309; 35 C.J., sec. 489, p. 421; Rees v. C., B. & Q.R. Co., 135 S.W. 981; Miller v. Engle, 172 S.W. 631; State v. Breen, 59 Mo. 413; State v. Reilly, 4 Mo. App. 392; Jefferson v. State, 52 Miss. 767; Dennis v. State, 50 So. 499; Kidd v. C., R.I. & P. Ry. Co., 274 S.W. 1079, writ denied 46 S. Ct. 119; 1 Thompson on Trials (2d Ed.), sec. 116. (2) The demurrer at the close of all the evidence was properly overruled, because the evidence established an issue of fact for the jury under the last chance law and the law as declared in the former opinion of this court. Morris v. E.I. DuPont, etc., Co., 139 S.W. (2d) 984; Trower v. M.-K.-T.R. Co., 149 S.W. (2d) 792; Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50; 2 Restatement, Torts, secs. 479-80. (3) The court did not commit error in giving plaintiff's Instruction 1, because the evidence established the issue of fact for the jury and it conforms to the rules of law declared in the former opinion, and defendant's Instruction 8-A submitted in similar form and on similar theory and authorizing a verdict for the plaintiff by a finding thereunder and in the alternative. Zimmerman v. Salter, 141 S.W. (2d) 137; Crews v. K.C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W. (2d) 54; Tocco v. C.D. Kenny Co., 269 S.W. 928; Bowman v. Moore, 167 S.W. (2d) 675; Larey v. M.-K.-T.R. Co., 333 Mo. 949, 64 S.W. (2d) 681; Phillips v. E. St. L. Ry. Co., 226 S.W. 863; Evans v. A., T. & S.F. Ry. Co., 131 S.W. (2d) 604; Hollister v. A.S. Aloe Co., 156 S.W. (2d) 606; Consolidated, etc., v. West Mo. Power Co., 46 S.W. (2d) 174; Quinn v. A.T. & S.F. Ry. Co., 193 S.W. 933; Taylor v. Cleveland, C.C. & St. L.R. Co., 333 Mo. 650, 63 S.W. (2d) 69; Carson v. Evans, 173 S.W. (2d) 30; McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W. (2d) 37; Mueller v. Schien, 176 S.W. (2d) 449; Burneson v. Zumwalt Co., 159 S.W. (2d) 605; Bebout v. Kurn, 154 S.W. (2d) l.c. 127. (4) The instruction properly declared the legal effect of facts in evidence and was not argumentative or a comment on the evidence. Bebout v. Kurn, 154 S.W. (2d) 120; Gately v. St. L.-S.F. Ry. Co., 332 Mo. 1, 19, 56 S.W. (2d) 54; Broderick v. Brennan, 170 S.W. (2d) 686; Ward v. Mo. Pac. R. Co., 311 Mo. 92, 277 S.W. 908; Irons v. Am. Ry. Exp. Co., 318 Mo. 318, 300 S.W. 283; Ward v. Fessler, 252 S.W. 667; Roth v. Roth, 142 S.W. (2d) 818; Brookville Elec. Co. v. Utilities Ins. Co., 142 S.W. (2d) 803; Berthold v. Danz, 27 S.W. (2d) 448; Hollister v. A.S. Aloe Co., 348 Mo. 1055, 56 S.W. (2d) 606; Gardner v. Turk, 123 S.W. (2d) 158.

VAN OSDOL, C.

Action for personal injuries. Plaintiff's case was based on alleged specific negligence under the last clear chance doctrine of Kansas. A jury returned a verdict for $65,000, and defendant has appealed from the consequent judgment.

Errors of the trial court are assigned (1) in overruling defendant's motion to declare a mistrial, (2) in refusing defendant's request for a peremptory instruction in the nature of a demurrer to the evidence, (3) in giving Instruction Number 1 at the instance of plaintiff, (4) in the admission of evidence, and (5) in overruling defendant's objection to the argument of plaintiff's counsel. And (6) defendant contends the award was excessive.

Plaintiff (respondent) was injured when defendant's gasoline-electric train (one coach with motor, seats for passengers, and mail or baggage space included) and a Packard sedan, owned and driven by Russell M. Riggins, collided at a railroad crossing south of Pittsburg, Kansas. Riggins and wife, and their guests, plaintiff and wife, were returning from Kansas City to their homes in Bartlesville, Oklahoma. Plaintiff was in the front seat of the automobile to the right of the driver and the ladies were seated in the rear. All of the occupants of the automobile were injured. We will make further reference to the evidence in the further course of this opinion. This court has heretofore reviewed a case based upon the same cause of action. See Trower v. Missouri-Kansas-Texas R. Co., 347 Mo. 900, 149 S.W. 2d 792, wherein the facts and circumstances of the casualty as shown in evidence in the trial of that case are fully stated.

[1] (1) June 7, 1943, a jury of twelve was regularly selected to try the case at bar from a panel of eighteen qualified petit jurors, or veniremen, as provided in Section 720, R.S. 1939, Mo. R.S.A., sec. 720; the jury was sworn to try the cause; the opening statements were made; and the trial passed to the morning of June 8th, when, court having convened, a witness was sworn who answered one question, "Mr. Palmer, you live in Kansas City? Yes, sir." It was then noticed that one juror, Estes, was missing from the jury box. The trial court determined that the missing juror would not appear for further service, and called three additional petit jurors; directed the parties to examine on voir dire; accorded each party one peremptory challenge; and impaneled the remaining petit juror, Boresow, in lieu of the missing juror, Estes. The jury as then constituted was resworn to try the cause, and opening statements were again made. Defendant strenuously objected to the trial court's procedure,...