184 S.W.2d 428 | Mo. | 1944
Lead Opinion
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 *761
court has heretofore reviewed a case based upon the same cause of action. See Trower v. Missouri-Kansas-Texas R. Co.,
[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 [430] were again made. Defendant strenuously objected to the trial court's procedure, stating as specific grounds for his objection, and for a motion to declare a mistrial, "said jury was not selected from a panel as required by the Statutes of the State of Missouri and is not a jury selected from a panel of veniremen as is required under the laws of the State of Missouri, and further that it deprives the defendant of trial by a jury as is" guaranteed by constitutional provisions.
Defendant did not object to the trial court's declaration that the juror, Estes, would not further appear, and did not contend the three additional petit jurors, including the juror Boresow, were not qualified; nor was any contention or showing made that the jurors, or any of them, who finally constituted the trial jury were prejudiced. The verdict for plaintiff was a majority verdict, nine jurors, including the juror Boresow, concurring.
It is the position of defendant that, inasmuch as there is no statute of our state governing procedure when a sworn juror becomes incapacitated, the common law applies, and the only course open to the trial court was to declare a mistrial, discharge the remaining jurors and impanel a new panel of eighteen qualified veniremen and preserve the right of the parties to make peremptory challenges, first the plaintiff, then the defendant. Plaintiff asserts there was no violation of any constitutional or statutory provision; there was no error, or no prejudicial error, in substituting the juror Boresow; and defendant did not sufficiently preserve the question for review.
In view of our ruling, infra, on the assignment of error (3), it is not necessary to consider the contentions of the parties upon the instant question, other than to say that the right to trial by a jury (twelve in number), which has been preserved by constitutional provision, *762
has and should always be protected by the courts. In a civil action where there has been a departure from the established practice of selecting a trial jury from a panel of eighteen qualified petit jurors, which departure has resulted in injury or injustice to a party, the appellate court will not hesitate to award a new trial. Kidd v. Chicago, R.I. P. Ry. Co.,
[2] (2) As we have said, a former case was based upon the same cause of action as the instant action. After the trial of the former action in the circuit court of St. Louis, a jury returned a verdict for defendant, and defendant appealed from an order granting plaintiff a new trial. This court affirmed the trial court's order and remanded the cause. Trower v. Missouri-Kansas-Texas R. Co., supra. Thereafter a voluntary nonsuit was entered in that case, and the instant action instituted in the circuit court of Jackson County. We believe the import of the opinion in the review of the other case, as it bears upon the law of the case at bar, is not affected by the nonsuit and the institution of this (another) action. "It suffices to say that such opinion is the law of the case, unless the pleadings have been (changed) amended so as to introduce new issues, or the evidence on the retrial is substantially different, from the evidence considered upon the vital questions at the former hearing here. It should be further stated, however, that even if there is no substantial difference in pleadings and proof upon the retrial, yet if this court upon second appeal finds that it was in error upon the first hearing, it not only has the power and right to correct such error, but it would be the duty of the court so to do, in the interest of justice. This is true whether we erred in the principles of law declared, or erred in the determination of what were the real facts of the case." Davidson v. St. Louis-San Francisco R. Co.,
[3] In the former case, in addition to negligence of defendant under the last clear chance doctrine of Kansas, primary negligence of defendant was specifically alleged by plaintiff and submitted by the trial court to the jury; but in the review of the former case (as herein), in ruling upon the question of whether the plaintiff made a case, this court considered solely the theory of liability under the last clear chance doctrine[431] of Kansas (347 Mo. at page 911). *763
Contentions of defendant (appellant) in the review of the former case necessitated examination of authorities upon the question of whether the last clear chance doctrine of Kansas applied in a case of "discoverable peril" (the defendant having a duty to be vigilant). This court ruled that (under the circumstances of the case) the last clear chance doctrine of Kansas was not limited to "discovered peril." On the question of the submissibility of plaintiff's case the court said, "We think there was evidence from which the jury could find that plaintiff by his negligence had placed himself in a position of danger; that his negligence had ceased; that defendant saw plaintiff in a position of helpless peril and danger or by the exercise of ordinary care should have seen him in such position; that it was the engineer's duty to keep a lookout ahead; that by the exercise of ordinary care in applying the brakes the engineer had a last clear chance to avoid injuring plaintiff; that he failed to exercise such due care; and that as a result of such failure the plaintiff was injured." (347 Mo. at pages 912-3.) We have examined the statement of facts as made in the opinion. We have found no substantial difference in the evidence introduced in the two trials of the cause, in so far as such difference would affect a vital issue.
[4] It can be ascertained from the evidence introduced in the trial of both cases that, had the automobile (200 feet north of the crossing) continued on at the rate of fifty or fifty-five miles per hour from the time plaintiff first saw the train (250 feet east of the crossing), or even at the rate of thirty miles per hour, the automobile would have passed safely over the crossing, although the speed of the train were not decelerated from its estimated rate of thirty to thirty-two miles per hour. It is contended by defendant that plaintiff was negligent in failing to utilize an opportunity to cause the driver to continue on across the crossing to safety; further, that the act of the driver in applying the brakes and slowing the speed of the automobile was negligent (see Goodman v. Kansas City, Merriam
Shawnee R. Co.,
Plaintiff should not be held to have been negligent, under the circumstances, in warning the driver of the approach of the train; and, we believe, the words "Look out (Russell), there's a train" did not *764
express a suggestion that the brakes should be applied and the speed of the automobile slackened. Now, it is clear from the evidence that plaintiff felt and saw that the brakes were applied and the speed of the automobile reduced, but it should not be said as a matter of law that plaintiff, under the circumstances, was negligent in failing to direct the release of the brakes. In weighing the question of whether plaintiff was negligent in failing to direct the driver to release the brakes and to speed on over the crossing in such an emergency, regard must be had to the possibility that by interfering the plaintiff would have increased rather than diminished the danger. Comment on Clause (d), sec. 495, Restatement of the Law of Torts. Nor should it be held that plaintiff's failure to direct the driver to speed on over the crossing was the manifestation of such a sanction of the act of the driver in applying the brakes as would make his act the act of plaintiff. Smith v. St. Louis-San Francisco R. Co.,
Defendant has cited the case of Buchhein v. Atchison, Topeka
Santa Fe Ry. Co.,
In our case, the plaintiff's negligence came to an end upon his warning to the driver of the approach of the train. Plaintiff's position in the emergency created was not due to his own (negligence) application of the brakes, nor to an express sanction of the driver's act in the application of them. We reassert the ruling (347 Mo. at page 912) as made in the review of the former case, "after he (plaintiff) warned the driver of the presence of the train, it could not be said that he was thereafter guilty, as a matter of law, of any contributory negligence which continued up to the moment of his injury." It does not appear to us that the court in reviewing the former case erred in applying a principle of law, or erred in the determination of the real facts, in reviewing the question of the submissibility of plaintiff's case, and the former opinion is the law of the case upon the question. Morris v. E.I. Du Pont de Nemours Co.,
[5] (3) Instruction Number 1, the main instruction given at the instance of plaintiff, is quite long; its printing required a little more than four pages of the abstract of the record. The instruction is divided into eight numbered paragraphs, and the jury is referred to various of the numbered paragraphs "below" or "above" in order to ascertain the law of the case as it should apply to the facts hypothesized. The instruction is complex, argumentative and repetitious. Instructions should state the issues as briefly and definitely as may be, and should not be argumentative. We are constrained to believe the jury might reasonably have thought, after a reading of Instruction Number 1, that, in the opinion of the trial judge, the verdict should be for plaintiff.
Special and unnecessary emphasis is placed upon defendant's duty "under the law . . . to maintain a reasonable lookout . . . for anyone on the highway in peril from the train, as herein explained, and to exercise ordinary care in doing so for the purpose hereafter explained." And the court continued paragraph (2) of the instruction, "If you find that Mr. and Mrs. Trower were in inescapable peril, as explained in paragraphs numbered 3 and 4 hereof, and the danger of the collision existed as explained below, and if the operator of the train did not discover such peril until too late to avoid the collision by the care required, but find from the evidence that by the kind of lookout above explained, the operator of the train could or should have discovered such danger in time to have thereafter slowed or stopped the train and prevented the collision by the care and means *766 explained below, then the company would be just as negligent as if the operator had actually seen and discovered and realized such peril in time to have thereafter so slowed down or stopped and avoided the collision as explained below in this instruction.
"(3) Now on the issue of what would be inescapable peril as to Mr. and Mrs. Trower, or peril which they could not get out of[433] by ordinary care, and when and how it could legally arise and exist, if you believe from the evidence that when the automobile in which Mr. and Mrs. Trower were riding was about 200 feet north of the crossing Mr. Trower discovered the approach of the train and thereupon warned Mr. Riggins thereof and that Mr. Riggins applied the brakes and used the brakes in an effort to prevent a collision and injury, and if you find from the evidence that when Mr. Riggins so applied the brakes and was so using them, there arose and existed a situation of dangerous peril of injury to Mr. and Mrs. Trower and they were in an emergency and the actions, appearances and speed of the automobile and train and the surrounding conditions and circumstances in evidence were such as to make it reasonably apparent that a collision mostlikely (our italics) would take place at the crossing and they would be injured unless the train was thereafter slowed or stopped, as hereafter explained.
"(4) And if you so find from the evidence the foregoing in paragraph 3 and find from the evidence that after such conditions and situation arose and existed there was nothing further Mr. and Mrs. Trower by reasonable care could have done towards escaping peril of injury, then you are instructed that such peril was in law inescapable peril, or peril Mr. and Mrs. Trower could not escape from or get out of, and any prior negligence of Mr. or Mrs. Trower would cease as explained in paragraph (5)."
Of the duty of defendant, the jury was further instructed in paragraphs (6) and (7) of the instruction,
"(6) And if you find from the evidence the facts to be as set forth in the above paragraphs numbered 3 and 4, and believe and find from the evidence that by using ordinary care in the keeping and maintaining of the kind of lookout required of the railroad, as explained in paragraph (2), above, the operator of the motor train could or should have seen the automobile, and by such care in such lookout could or should have seen and realized from such actions, appearances and speed of the automobile and all the facts and circumstances in evidence and the surrounding conditions that such peril existed and that a collision wouldmost likely (our italics) take place . . . if the train continued on at the speed it was traveling; and if you so find the foregoing from the evidence.
"(7) And if you further find from the evidence that by exercising such ordinary care in the maintaining of such lookout as explained above the operator of the train could or should have so discovered or *767 realized such peril and danger of a collision, as above explained, in time, by the use of ordinary care by him in the use of the braking appliances of the motor train, and with reasonable safety to the train and all persons on the train, for him to have thereafter slackened the speed of the train enough to have avoided the collision, or to have thereafter stopped the train in time to have avoided the collision, and that he thereafter failed to use such ordinary care so to do, and you are instructed that under the law the railroad company was negligent as to Mr. and Mrs. Trower."
In our examination of defendant's contention (2) we have reasserted the ruling that, after plaintiff warned the driver of the presence of the train, it could be reasonably found that plaintiff was in helpless peril. But in the examination of the instant (3) assignment of error we must make a reapproach, having in mind the duty of defendant. Of course, it was proper to advise the jury of the engineer's duty to keep a lookout and that the engineer had the duty to act when he saw or should have seen plaintiff in helpless peril. But negligent failure "to maintain a reasonable lookout" (primary negligence) was not the basis of plaintiff's cause of action. A decisive question was — when would an engineer in the exercise of vigilance discover plaintiff's position of helpless peril. Leinbach v. Pickwick-Greyhound Lines,
Considering the length of Instruction Number 1; its argumentative character; the unnecessary emphasis and repetition of its language relating to defendant's duty to maintain a lookout; and the use of the modifying words, "most likely," which we have italicized, it seems clear to us that (laymen) the jury could reasonably have understood that the instruction authorized them to make a finding for plaintiff upon the evidence tending to show that defendant's engineer failed to maintain a lookout antecedent to the time when, under the evidence, an engineer in the exercise of vigilance would have discovered plaintiff's helpless peril. The contention of plaintiff that, *769 by tendering Instruction 8-A, defendant adopted the theory of Instruction Number 1 is without merit in respect to the faults of Instruction Number 1 which, we hold, made it prejudicially erroneous.
It is not necessary to consider the remaining contentions of defendant. The cause should be reversed and remanded.
It is so ordered. Bradley and Dalton, CC., concur.
Addendum
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.