*1 rеpair that defendant assumed to although it found lieve that alleged negligently repair failed discover railing, but natural and tear found that wear yet, if it further defect, fall, plaintiff thereof negligent repair caused it to railing not the recover. could not No. 5 warranted the court Instruction defendant’s
The error doing action in so be affirmed. Its a new trial. granting concur. All ordered. so Friend, Harvey Next Infant, Koebel, Paul His an Koebel, Otto Corpora- Company, Appellant, & Material Coal Tieman 519. S. tion. 85 July 30, One, 1935.
Division *2 Eagleton, Waechter Yost and Roberts P. Elam appellant.
568- Taylor, & respondent. Willson and James Frank V. Ohasnoff *3 in- damages personal for action'for FERGUSON, is an C. This petition alleges, when;' -.on plaintiff sustained- which juries motor truck thereof defendant’s negligent operation account 'riding.' oc- -was The collision bicycle upon which plaintiff á struck city Louis and this of- St-. action Avenue’ Gravois curred resulting city- court of that in the Circuit' tried instituted in a judgment verdict and plaintiff for defendant and appealed. has alleges The petition damages prays $20,000 the sum where- jurisdiction. fore our
Appellant assigns as error the of certain instructions of defendant. Defendant (respondent) however takes position that granting notwithstanding erroneous instruc tions given, instance, were at its manifestly verdict for the right party, support the evidence is insufficient to a verdict plaintiff, did make a case the jury and that a verdict requested directed for it as at the close of all the If the case. this contention be sustained alleged given errors need not be considered. (Mo.), 619; v. Stuever Altman, S. W. Lindman v. [Bello 512; 187, 271 (Mo.), S. W. Mo. Cadwell Wilson Co. Stove 415; Moloney Bank, Boatmen’s Mo. required 133; Lindell, Schultz v. Thus we are 567.] the evidence. review and examine city is an
Gravois Avenue east west street in the sixty wide, It is with brick paved St. Louis. feet and double street, trаcks are located in center paving street car and the rails is also brick. between tracks tracks twenty a distance of feet from the north rail of the north or west AYesterly from in terse bound tracks to north curb line. its ca relatively downgrade, steep tion with Gustine Avenue Gravois p. m., 27, 1927, four-thidy May incline, for several blocks. About boy then a day dry, plaintiff, twelve a clear and the street was boy years riding friend, age, was west Gravois with James *4 bicycle. sitting was the seat of the Irgang, James’ James on guiding bicycle pedals handlebars and operating the and the and sitting bicyclе. sideways upon “was the the Plaintiff the course of just from below the handlebars to cross-bar that runs horizontal ’’ north, being his head however toward the body his turned seat, the they west, were looking, the the direction toward turned, he was and James the view ahead of not obstruct traveling. position His did boys several bicycle. The entered Gravois the operating who was traveling west on the turned and Avenue east of Gustine blocks and car tracks the north curb the between of Gravois north side grade west hill or distance down some proceeded and had bhycle from the were thrown they or fell when’ Avenue Gustine lamp post an iron Avenue and Gravois curb of north against the suffered unconscious and rendered They were both curb. near the Immediately fall from injuries. prior permanent and severe operated by one of trucks its motor of defendant’s bicycle one traveling was also business defendant’s the course employees north or west-bound between the Gravois north side west street ear track and the north and curb to the rear of the bicycle. The facts stated thus far are. uncontradieted. Plaintiff claims that defendant’s truck was negligently against permitted driven bicycle strike causing the rear of the it to careen toward and crash throwing against into the curb him and James the curb and the iron post resulting injuries in the which are enumerated in detail petition pertinent but not here. Defendant denies that its truck bicycle says struck the the accident was bicycle caused run ning against piece paving lying concrete block which was point. street at that As we read this record there was substantial but contradictory sharply conflicting substantiating both jury theories and therefore a case for thе and we a statement think of the main facts and in evidence will circumstances demonstrate correctly that the trial court that a ruled submissible case was made. On the same St. Appeals facts the Louis Court of held a case was Irgang against made for boy an action this same judgment $5000. v affirmed Tieman [Irgang (Mo. App.), Coal & Co. Material Plaintiff 919.] bicycle hill that as started Avenue he testified' down Gustine bicycle;' back “saw the our-' was looked truck east behind ”us; they down the then about feet behind went bicycle-as was-drawing he hill close to the he realized the truck making аnd the the truck was ‘heard hum of the motor noise street;” immediately he was “look- before the accident ing was about “saw the and left-hand wheel down” and lower bicycle to the left of couple feet in and four or five feet back running toward”'it; “was toward moving truck bicycle instantly impact;” “I felt an bicycle;” that thereafter bicycle, they right,” thrown were “thrown over to the plaintiff said I On is all cross-examination and “that remember.” car A there.” street- granite block in the “I did not see street going car down west-bound street testified that as his motorman bicycle car аnd boys ahead hill” he noticed Gravois hill;” way down one-third were then “about bicycle was ear passed as it the truck his first noticed he truck;” that of the ahead or more a hundred feet “probably traveling the street between car the street ahead of went on the truck following.behind “truck was curb; that the and the north car track came truck bicycle” until “gained on the bicycle” and boys.;” my view bicycle “obstructed me between *5 was obstructed view boys his before last he saw that the right-hand” from feet the five bicycle was about “the the'truck proceeded car boys, as he next curb; when his that saw or north “lying over curb bicycle were hill, they down the beyond 30 feet end about with the stopped had truck rear and the of) (west boys;” over there car “and went stopped .that he his there; quick I the truck could;” as that he saw the driver of anything paving “I in back of that did see on the Street not boys;-” bicycle that “I didn’t see excepting truck carrier, Menne, a letter in-the there.” One bloek street concrete ‘‘ front .riding car. He was on .passenger as a on this street- was- both the that he saw platform”' He testified with the motorman. car; that of the street bicycle-and going the hill ahead truck down got speed and “picked up ear it passed the street after the truck got “within about truck bicycle;” that when the closer Mo bicycle was obstructed bicycle my twenty feet view lying bicycle boys “saw the truck;” next that he about stopped then -truck was curb and the over--on were boys lying;” that the “bodies were of “where the feet” west “I the'street;”, and that half wáy onMhe curb and lying half kind on anything of that or brick or any block concrete did seé not bicycle.”1 The conductor anywhere around the the street “I lying. said:(cid:127) Hе .boys were where the car went over to street any anywhere granite did see place block-in the street about the ” boys they lying-. Irgang where the were James stated that as went bicycle coasting down hill was and he controlled and checked ‘‘ ’ speed use of the coaster brake that at ac- the time of the bicycle traveling-slower- any cident the was than it-had been at time they hill; started. down he the truck was since the' realized bicycle “hum a the rear of and close to the as he-heard the of motor “’right me;” ”1 back started to Took arоund” jolt” that “I which happened;” the accident felt “came-from “I next he happened;” the rear” but that the re- don’t know what awakening-in following day; view hospital calls that'his any paving block ahead was that he' did not see not’-obstructed and that .both also had evidence in' street. Plaintiff or obstruction n “an-indenta- bicycle damaged. That there was were wheels of the “several n - “broken spokes” were out” the rear wheel”- and tion in testified defendant .one-Skinner wheel. On behalf of that- of the rear ’ of-the along the -:south side walking 'east on the sidewalk hе'-was bicycle coming the hill down when street; first noticed the that he oc- place-where--the accident yet-“some east distance it'was five four or bicycle- “about -feet” curred;” traveled there;'” notice he didn’t came down the north curb‘‘as (evi- -the accident occurred” “after going west’ until: traffic- other accident) ; after the ear until or street dently see truck did not there” I -went over boys went over- and “all at once -same granitoid'paving-block, lying there, a a rock “there was testimony tracks”--(all the other 'ear street -between the they pavé paved-with tracks between the-space was’that in the *6 street) brick ; up as Was the “then the truck came and ’the that got them;” man off and:came over we tried to assist ‘‘ granite lying after the accident block was the street about n four or five feet out from curb.” To point this witnesses’ testimony bicycle allows an inference the- struck or conclusion says lying -block'which he paving street. Later he the. granitoid “they they-pitched and “I think stated struck’that block” this'purports handlebars.”' to be.a statement.of over the Whether happening of the made the other fact based his observation merely upon sixty-foot or his conclusion based side of the street discovery “granitoid block” when he crossed the street made testimony largely relies on-the certainly Appellant not clear” says supplied' positive and. evidence witness, which it' direct thereof, wipe cause out and the hoW the accident occurred offered, arising.-from destroy all the inferences evidence- require bicycle of the the-truck struck the rear plaintiff that not-, A police case was .made. a decláre that submissible court to half four a the seene some three.and he went-to officer stated that after the accident stre;et hours and “we looked for’a block in the ' granite and found a hálf a block in . the street— it-was about five or six feet from the . (cid:127)'. . north curb- I don’t-know what granite it; became block. I j.ust lying didn’t remove left it. n there.” “my eyes boys The truck driver Said were'on the-two bicycle boys when the accident happened. The went- over-the n . bicycle front -at I was that'time about -hundred or fifty’ I'kept going hundred and feet from there ..... ... west n ... stopped . twenty-five- thirty front the truck end of n boys granite ly- feet east of the I saw a block .... ... bicycle ing bicycle my ... I put under -truck but did put-the Certainly block in thé adduced the.’truck.” reásónably, substantial evidence from which thé coúld conclude - bicycle. that the truck .as struck'the True the evidence to that and'support circumstantial but warrant nevertheless sufficient-to finding practically speaking-¡the testimony boys sueh -of the two legal pre- was in- effect of a direct character. This is’not a case arising ¡showing being sumption wiped out of certain facts - -uneontradicted and uficontroverted evidence or refuted contrаry plaintiff’s' but -here of-the' bicycle and struck the inference of'fact that the truck warrants an contrary is eontrovertéd both direct evidence to the defendant’s making- circumstances, an of fact testimony issue and facts and credibility jury- witnesses and pass upon of-the for the who facts, the .St. testimony. On same' weight these and-value of-their ease, noted, supra, said-: Appeals'in companion Louis -'Court reversal, grounds urged for a reason first “One of the ..this sufficient to case is that the evidence was no-t out make= for liability injury entirely on jury, rested circum becausе reasonably at evidence, stantial did not circumstances here support finding plaintiff. tempt conceded *7 oper testimony truck, truck on both sides that this was defendant’s no witness by While defendant’s driver. it true ated there yet bicycle, strike the positively who that he saw the testified truck gaining bicycle, was the truck was behind the there is evidence that immediately boys saw truck it, looked the. who back something a struck bicycle only later say that' behind the moment bicycle certainly . sufficient . . There from rear. plain jury that this struck which the could find evidence from truck not, bicyclе. were witnesses who testified did tiff’s There also, Sooby clearly question.” course, a that, [See, but of Stanley 877; (Mo. 217 W. App.), Telegraph Cable Co. S. v. Postal 87 W. App. 601, S. 112 Co., P. Mo. Chicago, M. & St. Railroad v. (2d) 64 W. Wheelock, 992, 333 Mo. S. As Young 112; v. 950.] was made. opinion submissible stated we are a heretofore have the case sub entitled to plaintiff was It follows that mitted, declaring the law c'orrectly of proper under assignment that erroneous brings appellant’s us to case and this- first com of' defendant. The given part instructions were 6 numbered instruction at plaint is leveled defendant’s ^iven follоws: proof which of concludes burden you however, “If charge find the touching neg- of against ligence evenly balanced, defendant be or the truth as to charge negligence-against remains in your doubt in fairly mind, considering evidence, your after verdict must be for defendant.” instruction,
The in full, copy is a of an instruction which was seem ingly approved by this court in Denkman v. Prudential Fixture (Mo.), 591, Co. 595, 289 S. in W. decided 1926. It was criticized Payne Reed, 343, erroneous in v. 332 Mo. declared (2d) 43, in 1932. decided The instant case was tried in 1931 and relying upon the Denkman' case defendants offered and the trial gavе Aly court the instruction. In v. Terminal Assn. of Railroad Louis, (2d) 851, 1, 340, St. Mo. S. W. decided December 1934. ruling giving Division Two this court a instruction like held error and thereof to be reversible overruled “the in which cases this apparently approved” has heretofore similar court instructions. : was said that case no doubt would
“Jurors understand the in- latter charge prove negligence by plaintiff that a must such struction of the evidence preponderance remove their -to: doubt charge. opinion are of the such We would he a minds as to casts an Such interpretation correct instruction. requires. Di greater much than the law burden instruction erroneous a similar One this court held vision Payne in that opinion 43. The 343, v. 332 Mo. S. W. Reed, which this court opinions previous to and criticizes case refers We' deem the instruction. a similar apparently approved holding In this reversible error. constitute of such ah instruction to arewe fortified numerous authorities. ‘‘The cases in this which Court has apparently approved heretofore instructions similar to the instruction now under in- discussion were directly, least, Payne Reed, supra. overruled in the end To may bench say and bar decisions, be'misled now those we point question.” hot be followed on the
We and excérpt's ap have omitted the citation authorities pearing opinion. Later Sheehan Terminal Railroad Louis, (2d) 305, St. Assn. of *8 citing Aly banc case, en ruled same and after instruction supra, said: and numerous authorities holding
“All in- accord in the authorities cited are greater structions discussion burden under cast requires are, therefore, question proof than law on of goes plaintiff’s cm to the erroneous. Such instruction substance of procedure.” matter right action cannot be as a classified of of ours.) (Italics giving The of a burden proof of instruction like or similar to de given fendant’s Instruction in the instant cáse was held to be following reversible error in the recent eases,' all of which had been prior Aly tried to our decision in the pending case and were here appeal time; at that (Mo.), (2d) v. Collins Beckman 79 W. S. S. W. 1052 (Division Two); Werminghaus (2d) (Mo.), Eberle v. (Division One); Dempsey v. Horton, (Division Two). will case, be noted that in Aly Payne supra, referring Reed, supra, the court to that, observes Payne case, in the “Division No. One of this court held similar opinion erroneous” and “The that case refers to and previous opinions criticizes apparently approved this court which damages Payne similar instruction.” The ease was an action for álleged a widow death for the of her husband to have caused been' negligence' The was for defendant.' verdict defendant. plaintiff’s The trial court a new sustained motion for trial on two grounds against weight assigned, of the that the verdict was giving that the á Certain withdrawal evidence and court erred granting Upon appeal order instruction. defendant’s turning trial we affirmed the action of the new trial proof, burden numbered instruction on the to defendant’s which is to “A similar the one under.discussion, now we observed: patent error, though here, may stressed but which for account yerdict jury returning against weight given found in No. defendant’s Instruction 9.” The instruction set and we “This .. -. .equivalent saying out then said: .is to reasonable; on the whole evidence there remains a doubt guilt negligence, give to defendant’s him to the benefit doubt find defendant. in criminal This is but cases rule tending not in civil The eases.” Denkman case and cases to other holding clearly support the case are reviewed. While de .that we the instruction we clared concluded our discussion thereof erroneous holding with this comment: “We are not trial court in light granted previous rulings, a new trial for our should error.appeared, we instruction, no other but error say gives all without do the instruction he to entitled objectionable adding clause, trial instruc and that another ” framed, accordingly. Respondent points out tion should be Payne in the prior decision ease that this case tried th,at Payne case above out in the. set position comment takes our ruling only and purpose prospective make the clearly indicates a giving of the instruction constitute the not retroactive so as to Respondent assumes prior tried thereto reversible cases' error. Aly we case in which in the support this contention further find ap- apparently heretofore court has say: “The cases which this instruction, now under discussion proved instructions similar Reed, Payne supra. in. To directly, least, overruled were decisions we now may those misled and bar not be end bench (Italics question.” point in say they not be followed (Decem- now оf the word ours.) argue that “the use Respondents *9 ap- which had the decisions 1934) ber indicated that thereafter therefore and longer-be followed” no proved such should tried cases as the law of overruled the decisions policy a to treat Though intermediate transactions.” law “for in interim —as Reed, we never- Payne v. in prior to decision tried case was that Denkman in approved the instruction giving of held the theless ruling making the Aly thereby in case error case be reversible to in its effect. retroactive may respondent:contends final define аnd
As the courts of decision decision, is overruling a of former declare effect a decision .only (Great Northern operate prospectively whether or it shall not and Refining 358), Railway Co., Oil U. S. Co. v. & Sunburst overruling former de decision: we have heretofore held that when a relating to in construction a statute change effects a of cisions theretofore, such of procedure rule procedure or some. -established construction, offlv operate statutory new rule shall prospectively proceedings prior and does affeсt had in with conformity not thereto former procedure of rule the statute or of announced construction in where, ease, apr but as this former have decisions are found to- proved general an in incorrect rule of or substantive we have law in overruling applied such former cases the correct rule in the case retroactive, doing which it and so made it in effect is announced in coming and in cases applied have thereafter the correct all before rule doing though operates retroaptively. us in so The distinction it recognized case, in have italicized statement the Sheehan and we our quoting therefrom, emphasis repeat supra, to that effect but goes excerpt here: “Such an portion of aas classified right action and cannot be plaintiff’s substance of of relies, appellant here cases on which procedure.” matter of The , are reviewed rulings procedure, on relating do to matters of. by this distinguished followed practice” the “constant 815. (2d) City (Mo.), 74 W. Kansas S. Lober v. well court stated in We there said: cited, clearly “No.w, that, shown the cases relied on plaintiffs, this court speaking dealing of and with matters procedure change a effect of procedure by of a reason ruling statute or Supreme Court pend on other like cases then ing. ruled, correctly It was so, change procedure wrought ruling by the court’s new should act prospectively only, and retroactively, not cases. ruling, other however, Such is confined procedure, application and had no to the de court’s matters general termination and announcement principle some sub . . . correctly stantive law. And court so. ruled State ex Haid, rel. v. 183, 186, that: ‘It is that, well-settled rule before final decision .in a new case statute goes procedure effect, as to into it. must govern time regulate . proceedings. . And like produced result a. n change relating procedure of a constructio statute ’ by a last resort. court of This is the extent to which has this court gone ruled, contend, further. We plaintiffs no order, ruling ‘no be decision of trial reversed be changes’ .overruling cause of evidenced a former law.as. ruling subject, same ‘where said or decision was correct аccording gen when made’ In overruled ease. matters such law, ruling eral former cases are because the therein overruled never was the law and case in hand is over the. decided the same as such ; Such, never has ruled case had been written. our constant been *10 the; refer, practice, published, show, merely we reports as and City, 125, (2d) 28 illustration, Scanlon 325 Mo. S. W. to v. Kansas (2d) 557, 84; McCloskey Koplar, 527, S. Mo. W. 46 92 329 26 641; Lamar, 188, A. Lamar W. & E. L.Co. v. 128 Mo. L. R. Bollinger v. St. Louis- 756, 157, 32 L. and 1025, W. S. W. R. A. 985.” (2d) 67 S. Ry. Co., 720, [See, W. San Mo. Francisco 1001, (2d) 75 S. also, 1112, Hasse, 1104, Harke v. Mo. 1004.] since against respondent and hold We rule contentiоn the required plaintiff degree proof as the rule the burden and to cleárly prejudicial law matter instruction is a of substantive the n reversible error. the thereof constituted (cid:127) following instruc gave-the request At defendant’s the : tion duty considering you your “The Court instructs that it is in ease,
evidence, deliberating upon determining facts in this question first upon' to decide of whether all the facts under not'any negligence Upon circumstances there or is of de- you question fendant- defined to other instructions. Until this negligence you right been you, has have determined no take alleged into nature, consideration the' character extent of the injuries yon determining plaintiff, except in whether an aid to not n any,' if negligent, amount, :or injuries. plaintiff is entitled to recover because such If is, it not shown to recover, not entitled to your- greater weight satisfaction of the credible reasonable negligence testimony upon question should recover he your you your and must not in delibera- hands, injured. any, he been extent, all what has tions' at consider to you influence sympathy should prejudice “Neither nor: passion,’ duty deciding case; your it is sworn in manner аccording the evidence and instruc- try this casé and decide -’ - referred-to.) (Italics and hereafter tions.” ours Appellant claims error in the instruction. "With’the clause which we italicized omitted this instruction was criticized and held Stolovey 832, erroneous in Fleming, Mo. (2d) Ryan v. Burrow, 33 S. W. pointed 928. It was out those cases concerning that under facts' in evidence injuries “náture, sustained' character and extent” of in juries might' were circuinstances which jury be considered along determining with all the other facts and circumstances in negligence issue of but that' the instruction excluded such facts from determining consideration of the issue. To meet objection italicized inserted with that clause was revision again came court in Wolf son v. instruction before this Cohen Stolovey (2d) 677, referring (Mo.), 55 S. W. 681. After to the however, this':case, Ryan cases, supra, We said: “The evidently point error exception intended to obviate the contained an Ryan Stolovey cases. The ed out consideration; until therefore, told' take into jury were, not to *11 question negligence of determined, has been the nature, character, or alleged injuries extent the ‘exceрt of to plaintiff as yon an aid to in determining whether or not negligentThis excep- was defendant tion meaning clarified the instruction, prevented it from declaring an Moreover, erroneous rule. dispute there was no in this ease about how plaintiff injured, was where by she struck was the automobile, driving that was a speed at sufficient to injuries plaintiff cause the claimed to have sustained.” Several might of evidence matters were then noted which have con- been warranting the cautionary sidered trial as instruction giving and we held the of the amended instruction in that cаse was error. seemingly not "While in the Wolfson we approved case the in present form giving its thereof a proper stating proposition we now that after the saving note with the clause, approved in the Wolfson case, inserted instruction then Substantially repetition way of restates matter in same is, “If the is not way: recover, entitled to that it is not your greater weight to reasonable shown satisfaction of testimony upon question negligence that he credible should your you hands, your recover at should and must not in extent, any, he has in- all consider to what been deliberations jury might “greater weight jured.” well that the The conclude question negligence” testimony upon meant, the credible touching nature, to, testimony than be confined other injuries. Chicago, I. & and extent of R. character [Orris If 1, character of in Ry. Co., Mo. Pac. 124.] present plaintiff in case had been such juries sustained tending chain to “a the. of. as constitute link to circumstances Ry. Co., supra), (Orris Chicago, R. I. & negligence” P. show ¡sub negligence, tending to show the instruction is a circumstance confusing misleading. Assuming it is ject criticism to the wording calculated cause instruction wаs the confused determining the issue of defendant’s jury to understand in nature or character to consider the were not negligence rea hardly prejudicial been for that could juries sustained ,not-appear-that ease, as it does plaintiff in this son injuries plaintiff’s' concerning and character the nature that., throw, upon issue, any light de show, or to way tends bicycle. disapproved instruction was The struck truck fendant’s 83, being (Mo.), as v. Wells in Unterlachner generally duty jury to the as to de a lecture nature much “too case,” but not'fur duty their not to fendant whole because judgmеnt in that case reversed ther discussed to-plaintiff” highly prejudicial whole were a “the particulars pointed "erroneous clear that out” it is not giving regarded of this instruction there as reversible error. Appellant generally complains of instructions numbered given only specific at the instance of defendant but the ob jection 9 telling made to the of Instruction *12 assessing in favor "then in find verdict you any him plaintiff’s damages, any, shall not allow amount of thing expense.” medical hospital for medical or Reimbursement offered, hospital expense sought, was not no evidence thereof was damages such did not submit plaintiff’s instructions on the measure directly in attempt therefor, nor made to recover items give there was no occasion to in this action. Therefore directly, instruction, place no in the instructions and should it had given. been judgment the circuit court reversed stated For the reasons Hyde Bradley, OG., concur. remanded. the cause adopt- C., foregoing opinion Ferguson,
PER CURIAM: —The judges concur. the court. All the opinion ed as Eugene Attorney County, Prosecuting Jackson W.W. Graves, Hostetter, Members J. W. McCardle Battle Purcell, I. County, County Appellants. Jackson Court of (2d) 543. Banc, July 30, en 1935. Court