Opinion
No. 39829.
November 11, 1946. Rehearing Denied, December 9, 1946.
1. PLEADING: Trial: Amending Answer at Trial: No Error Shown. It does not appear that plaintiff was harmed by an amended answer setting up contributory negligence made at the close of the evidence even though there was no evidence to support it.
2. NEGLIGENCE: Trial: Res Ipsa Loquitur: Burden of Proof Instruction Upheld: Insufficient Objections. The burden of proof remains with plaintiff even in a res ipsa loquitur case. Defendants burden of proof instruction did not constitute reversible error when read with other instructions. It would not mislead the jury to believe that a finding of specific negligence was required. Nor was it too argumentative. And the latter issue was not raised in the objections made when the instruction was given.
Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.
AFFIRMED.
Everett Hullverson for appellant; Orville Richardson of counsel.
(1) The court erred in giving and reading to the jury defendant's Instruction 4 on the burden of proof and defining "preponderance or greater weight of the credible evidence." The third paragraph of this instruction telling the jury that it did not devolve upon the defendant to disprove "said charge" of negligence, and that the burden of proving "said charge" rested upon plaintiff, and that "said charge" must be sustained by the preponderance of the credible evidence was erroneous, because: It relieved the defendant of its "burden of evidence," the duty of coming forward with evidence, which had shifted to it after plaintiff had made a prima facie case under the res ipsa doctrine. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; State ex rel. Stein v. Becker, 334 Mo. 749, 67 S.W.2d 755; Hartnett v. May Department Stores Co., 85 S.W.2d 644. (2) It by implication cast a burden of proving specific negligence upon the plaintiff, thus depriving her of legitimate inferences arising from the circumstantial evidence from which the res ipsa doctrine stems. Three times in this paragraph and four times more in other parts of the instruction a burden of proving a "charge" of negligence was erroneously thrust upon plaintiff. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001. (3) The first paragraph of this instruction erroneously told the jury that the "charge" laid by the plaintiff was one of negligence. As indicated, supra, this was erroneous, confusing and misleading. (4) The second paragraph of this instruction defined the term "preponderance or greater weight of the credible evidence" as "evidence which is more convincing to you as worthy of belief than that which is offered in opposition thereto by the defendant." Other parts of the instruction placed the burden upon the plaintiff of proving her case by a preponderance of the credible evidence. This was erroneous, because: It deprived plaintiff of the benefit of the presumption of law and fact arising from her prima facie case under the res ipsa doctrine, and required plaintiff to prove her case by direct "credible" evidence of witnesses to the fact of negligence. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001. (5) It required plaintiff to prove her case by direct evidence of specific negligence. (6) It limited plaintiff to proving her "charge" of negligence by her own evidence and witnesses, and thus deprived her of the benefit of defendant's evidence not in conflict with her theory of recovery. However correct such an instruction may be in a specific negligence case where the evidence of both parties is direct and contradictory, such an instruction is erroneous in a res ipsa case where there is no "charge" of specific negligence and where plaintiff's proof is circumstantial. Barr v. Mo. Pac. R. Co., 37 S.W.2d 927; Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174; Bradley v. Becker, 296 Mo. 548, 246 S.W. 561; Trower v. M.-K.-T.R. Co., 347 Mo. 900, 149 S.W.2d 792. (7) The whole instruction was argumentative, unduly repetitious of plaintiff's burden to prove a "charge" of negligence by credible evidence, confusing, misleading and calculated to impress upon the jury that plaintiff was not entitled to the benefit of any circumstantial evidence or any of defendant's evidence or any inference or presumption of negligence raised by law from the res ipsa fact situation. It was not a clear, concise correct instruction open to only one construction and was erroneously given. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593; Schipper v. Brashear Truck Co. 132 S.W.2d 993; Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30. (8) The court erred in allowing defendant to amend its answer over plaintiff's objection at the end of the trial to set up a plea of contributory negligence. There was no evidence to support the charge that she negligently failed to hold on to supports in the car. The car was stopped and was discharging passengers with the doors open. Plaintiff had just arisen from her seat to permit another passenger to leave when this stopped car was struck from behind. Winters v. Hannibal St. J.R. Co., 39 Mo. 468; Coudy v. St. L., I.M. S. Ry. Co., 85 Mo. 79, 83, affirming 13 Mo. App. 588; Payne v. Stott, 181 S.W.2d 161. (9) The court erred in giving Instruction 3 which was more than a mere definition of ordinary care, but in general and without limitation imposed the duty upon plaintiff of exercising ordinary care for her own safety. It was unsupported by the evidence, since there was no evidence that plaintiff failed to exercise due care for her own safety. (10) It was not only general and abstract in nature, but gave the jury an unwarranted, roving commission unconfined to the pleadings and evidence. Carson v. Evans, 351 Mo. 1156, 173 S.W.2d 30; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; Reiling v. Russell, 348 Mo. 279, 153 S.W.2d 6; White v. K.C. Pub. Serv. Co., 347 Mo. 895, 149 S.W.2d 375; Copeland v. Terminal R. Assn., 353 Mo. 433, 182 S.W.2d 600; Burgher v. Niedorp, 50 S.W.2d 174, certiorari quashed in State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422. (11) Although plaintiff's counsel stated that he had no objection to this instruction, he did object to the amendment of the answer on the grounds now raised, and it would have been a mere formality to object again. Moreover, the error is plain, affected substantial rights and resulted in manifest injustice. Therefore, it may be raised on this appeal. Supreme Court Rule 3.27.
Mattingly, Berthold, Jones Richards and Lloyd E. Boas for respondent.
(1) Appellant's present contention that Instruction 4 "inferentially required plaintiff to prove specific negligence, is argumentative, confusing and misleading," was not presented to or ruled upon by the trial court and therefore not properly presented for review by this court. Appellant is limited to the error pointed out and objected to in the trial court. R.S. 1939, sec. 847; Stokes v. Godefroy Mfg. Co., 85 S.W.2d 434; Spotts v. Spotts, 331 Mo. 942, 55 S.W.2d 977; Rutledge v. Weisenborn, 142 S.W.2d 884; Banty v. City of Sedalia, 120 S.W.2d 59. (2) Instruction 4 properly placed the burden of proof on the plaintiff. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Harke v. Haase, 75 S.W.2d 1001; Hartnett v. May Department Stores, 231 Mo. App. 1116, 85 S.W.2d 644; State v. Davis, 342 Mo. 594, 116 S.W.2d 110; Campbell v. Terminal Railroad Co., 235 Mo. App. 56, 126 S.W.2d 915. (3) Appellant is in no position to complain about the court's action in permitting an amendment pleading contributory negligence for the reason that her objection to an instruction submitting that issue was sustained and the instruction refused. Clift v. St. Louis-S.F.R. Co., 9 S.W.2d 972. (4) Appellant specifically advised the trial court that he had no objection to Instruction 3 and thereby waived any right to object to said instruction for the first time in this court. Code Civil Procedure 105 (a), 122, 140 (a); Supreme Code, Rule 3.21; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950. (5) Instructions 1 and 4, when construed together, properly declared the law of the case. Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384; Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467.
Plaintiff's petition prayed damages in the sum of $15,000.00 alleged to be due to defendant's negligence. Verdict and judgment were for defendant and plaintiff has appealed.
Plaintiff's evidence was to the effect that defendant is an operator of a street railway system as a common carrier of passengers for hire. That, on the date of the alleged injury, plaintiff was a passenger on one of defendant's cars which had stopped at a street intersection to receive and discharge passengers. That it was necessary for plaintiff to arise and stand in the aisle to permit another passenger to get out from the inside of the seat where she had been sitting. That another car of defendant suddenly collided with the rear end of the car in which she was standing, throwing her down and injuring her.
Defendant's evidence tended to show that the collision caused only a slight jar to the car on which plaintiff was and neither car was damaged. The operator of the car did not see or hear of any one being thrown to the floor and after inquiry received no complaint of injury to any passenger. Defendant also offered medical testimony tending to show that plaintiff's condition was not due to injuries, but to a pre-existing cause.
After the close of the evidence the court permitted defendant, over the objection of plaintiff, to amend the answer to charge plaintiff with contributory negligence.
[965] At plaintiff's request the court gave instructions as follows: No. 1 to the effect that defendant, as a common carrier of passengers for hire, was under the duty to exercise the highest degree of care and a failure to do so would constitute negligence as used in the instructions; that if they found from the evidence that there was a collision and plaintiff was injured thereby that such facts are sufficient circumstantial evidence to warrant a finding that defendant was negligent, etc. No. 5 on the measure of damages.
For defendant, the court gave instructions: No. 2 on the credibility of witnesses; No. 3 that it was the duty of plaintiff to exercise ordinary care for her own safety, and No. 4 which we set out in full as follows:
"The Court instructs the jury that the charge laid by the plaintiff against the defendant in this case is one of negligence. Recovery may not be had on a charge of negligence except when such charge is sustained by the preponderance, that is, the greater weight of the credible evidence. By the term `preponderance or greater weight of the credible evidence' as used in this instruction is meant evidence which is more convincing to you as worthy of belief than that which is offered in opposition thereto by the defendant. It does not devolve upon the defendant to disprove said charge, but rather the law casts the burden of proof in reference to said charge upon the plaintiff, and said charge of negligence must be sustained by the preponderance, that is, the greater weight of the credible evidence.
If, therefore, you find the evidence touching the charge of negligence against the defendant does not preponderate in favor of the plaintiff, or is evenly balanced, then and in that case plaintiff is not entitled to recover against the defendant and you will find your verdict for the defendant."
Before the instructions were read to the jury, plaintiff's counsel made the following statement to the trial court:
"MR. HULLVERSON: I object to that (Instruction No. 4), in the first place, because it is an instruction which is unduly favorable to the defendant in this case. It is not the law of this case. The burden is upon the defendant, under an instruction which has been approved by the court, Plaintiff's No. 1, to bring forward evidence to rebut a presumption or an inference of negligence, due to the setting up of circumstantial evidence which has been set up in this case. If, under Instruction No. 1, the facts which have been set up in that instruction are sufficient to warrant an inference that the defendant is guilty of negligence, then this instruction is wrong, because it throws the burden of proof on the plaintiff. The burden of going forward on the evidence after a prima facie case has been made shifts to the defendant, and this instruction permits the defendant to escape such duty.
I have no objection to Instruction No. 2 or Instruction No. 3."
In this court, appellant's counsel fires his heaviest salvo at respondent's instruction No. 4, but directs a desultory small arms fire at the amendment of the answer and respondent's instruction No. 3.
Appellant objects to the amendment of respondent's answer, setting up contributory negligence, on the ground that there was no evidence to support it. Appellant says: "such an amendment, if allowed, as here, then becomes the basis for attacking and giving instructions, moving for a directed verdict and argument to the jury." But the record does not show that the amended answer was read to the jury or that the issue of contributory negligence was argued by respondent's counsel. The court refused to give an instruction requested by respondent which would have submitted that question to the jury. True, the court did give respondent's instruction No. 3 which stated that appellant was under the duty to exercise ordinary care for her own safety, but appellant's counsel told the court he had no objection to that instruction. So far we find no reversible error.
Now, as to respondent's instruction No. 4. Appellant concedes that, since McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, this court is committed to the view that the burden of proof never shifts, even in a res ipsa loquitur case [966] such as this, but appellant says the McCloskey case holds that "the burden of coming forward with the evidence of non-negligence does shift to the defendant after plaintiff has made a prima facie case by the bare proof of facts from which negligence is inferred" and that it is proper to so instruct the jury, citing: the McCloskey case; State ex rel. Stein v. Becker, 334 Mo. 749, 67 S.W.2d 755; Hartnett v. May Dept. Stores (Mo. App.), 85 S.W.2d 644.
The opinion of the court of appeals in Hartnett v. May Dept. Stores affords some support for appellant's contention, as it seems to hold that when a plaintiff offers some evidence to place himself within the res ipsa doctrine, the jury not merely may, but must, find the defendant guilty of negligence unless the latter offers evidence to disprove negligence. That ruling has not been followed by later decisions of the same court [Campbell v. R.R. Co., 235 Mo. App. 56, 126 S.W.2d 915] and is not supported by the McCloskey case or later decisions of this court.
In State ex rel. Stein v. Becker we held that the approval by a court of appeals of an instruction in a res ipsa case did not conflict with our decisions, but the instruction there was not challenged as a violation of the burden of proof rule and neither the court of appeals nor this court passed upon that question.
The majority opinion in the McCloskey case pointed out the distinction between "burden of proof" and "burden of evidence." It distinctly holds that the "burden of proof," even in a res ipsa case, never shifts. In substance, it does say that where the plaintiff has offered evidence to make a prima facie case, the "burden" is on the defendant "to produce, if he desires, competent controverting evidence," but it does not say or intimate that the inference as to defendant's negligence, which the jury are authorized to indulge on plaintiff's evidence, becomes conclusive if defendant fails to produce controverting evidence. The concurring opinion of Judge Ragland in the McCloskey case quotes from Sweeney v. Erving, 228 U.S. 233, as follows:
"Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict."
The concurring opinion of Judge Ragland did not receive a majority vote in the McCloskey case, but the language above quoted from the Ragland opinion received the approval of a majority of this court in Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001.
In the instant case appellant's counsel does not object to the view approved in Harke v. Haase, for he says: "Strictly speaking, of course, the defendant need not introduce any evidence in this class of cases, and its failure to do so does not authorize a directed verdict for plaintiff under familiar rules dividing the provinces of court and jury. On the other hand, since the plaintiff is entitled to an inference of negligence from circumstantial evidence without carrying the burden of proving any specific `charge' of negligence, a direction relieving the defendant of a duty of disproof might well be understood to throw a duty of proving specific negligence upon the plaintiff. Such a result would deprive the plaintiff of legitimate inferences to which he or she might be entitled, and thus result in positive error and misdirection."
Appellant strongly relies upon Harke v. Haase. That case we reversed and remanded for error in an instruction given at request of respondent (plaintiff) which cast upon defendant the burden of proof to overcome the presumption (inference) arising in plaintiff's favor in a res ipsa case. We also criticised an instruction given at request of appellant which referred to a "charge" of negligence made by the plaintiff and stated that "the jury have no right to presume negligence." We said the reference to a "charge" of negligence is confusing and misleading, "in a [967] res ipsa case, because there is technically no specific charge of negligence made by the plaintiff. Since the petition alleges only general negligence this would tend to mislead." We further said the latter part of the instruction, stating that the jury had no right to presume negligence, "could not help but mislead and confuse the jury, in a res ipsa case, because they did have the right to presume (infer) negligence from the facts shown in evidence.
Respondent's instruction No. 4 in the instant case does not contain the most serious defect present in appellant's instruction in Harke v. Haase. That is, instruction No. 4 does not preclude the jury from indulging an inference of respondent's negligence upon evidence by appellant of the situation mentioned in her instruction No. 1. Respondent's instruction No. 4 does contain references to a "charge" of negligence, similar to the one criticised in Harke v. Haase, but, reading all the instructions together, we do not believe they would tend to mislead or confuse the jury. Instruction No. 1 clearly and correctly told the jury that, if they believed and found certain facts, they were authorized to find defendant negligent and return a verdict for plaintiff. Instruction No. 4, not inconsistent with No. 1, placed the burden on plaintiff to prove the "charge" of negligence. The only charge was general negligence and, reading the two instructions together, we cannot hold that the effect would be to mislead the jury to believe they were required to find defendant guilty of specific negligence. We do not wholeheartedly approve instruction No. 4. It is unnecessarily lengthy and repetitious, but we cannot hold it to be reversible error.
Appellant further complains of instruction No. 4 as being "argumentative" and, that by defining preponderance of evidence as such "which is more convincing to you as worthy of belief than that which is offered in opposition by the defendant," appellant was deprived of the benefit of any testimony offered by respondent which would help appellant's case. Reading all the instructions together we do not think this criticism is valid. Besides, appellant's counsel made no such objection either before the instructions were given or in the motion for new trial. The objection to instruction No. 4, heretofore quoted, was repeated verbatim in appellant's motion for new trial and was to the effect that the instruction was unduly favorable to defendant, was not the law and relieved defendant from the necessity of producing evidence after plaintiff had made a prima facie case.
After examination of all the cases cited, we find no reversible error. Accordingly, the judgment is affirmed. All concur.