State Ex Rel. Vogt v. Reynolds ( 1922 )

I cannot concur in the majority opinion. While I agree with the cogent reasoning of my learned brother in his analysis of some few of the cases with which the opinion of the Court of Appeals is alleged to conflict, nevertheless, with the conclusion reached as to others I find myself at variance. Holding as he does that the opinion of respondents is in conflict with the Cytron Case and other cases cited by relator, I feel constrained to dissent.

I. Relator contends that the majority opinion of the Court of Appeals and the separate concurring opinion of ALLEN, J., "to the extent that they hold that the case of Sluder v. Transit Co.,189 Mo. 107, declares the Vigilant-Watch Ordinance but declaratory of the humanitarian doctrine, are not in harmony with that case."

In the Sluder Case this court in banc announced the doctrine, l.c. 137, that the Vigilant-Watch Ordinance "exacts no more thanordinary care, when the conditions and circumstances to which it is applicable are considered." (Italics ours). By referring to the opinion of the Court of Appeals it becomes clearly apparent that that court intended to follow and did follow the Sluder Case for, in the fourth paragraph of the majority opinion of said court, it is stated: "It has been ruled that under the Vigilant-Watch Ordinance the defendant is only responsible for the failure of its motorman to exercise ordinary care to stop the car." (Italics ours). Again, in discussing the opinion in the Gubernick Case, the opinion of the Court of Appeals states: "Certainly, nowhere in the opinion is there a direct ruling that the Vigilant-Watch Ordinance requires more than ordinary care on the part of him who is in charge of the car." (Italics ours). Also, in the same paragraph, continuing to speak of the Gubernick Case, the opinion states: "The Gubernick Case being an opinion in division would not be controlling in light of Sluder v. St. Louis Transit Company, 189 Mo. 107." The opinion then proceeds to quote extensively from the Sluder Case. And further, in the separate concurring opinion of Judge ALLEN he expressly states: "I concur in the result reached in the majority opinion for the reason that I consider it our duty to follow the Sluder Case." And nowhere in either opinion is the Sluder Case held to be declaratory of the humanitarian doctrine. What the Sluder Case holds is that the Vigilant-Watch Ordinance only calls for the exercise of ordinary care. And it is for the reason that the instruction criticised by the Court of Appeals required more than ordinary care that said court condemned the same. While the Sluder Case may be erroneous in holding that the ordinance does not exact a higher degree of diligence than the common-law rule of ordinary care, nevertheless, for the purposes of this inquiry it is the final word of this court in banc on the subject and is controlling.

Furthermore, granting for the sake of argument that the Court of Appeals may have misconceived the Sluder Case, which we do not concede, nevertheless, under our most recent ruling, oncertiorari it is not for us to determine whether the Court of Appeals erred in its application of rules of law to the facts stated in its opinion, but only whether upon those facts it announced some conclusion of law contrary to the last previous ruling of this court upon the same or a similar state of facts. [State ex rel. Calhoun v. Reynolds, 233 S.W. 483.] And moreover, if the Court of Appeals erred as a matter of opinion, oncertiorari we have no authority to quash its judgment on that ground. [State ex rel. Calhoun v. Reynolds, 233 S.W. l.c. 485; State ex rel. American Packing Co. v. Reynolds, 230 S.W. l.c. 644; State ex rel. Wahl v. Reynolds, 272 Mo. l.c. 596.]

II. Relator next urges that the opinion of the Court of Appeals is not in harmony with the case of Gubernick v. United Railways Co., 217 S.W. 33, a decision by Division One of this court, because: First, The opinion holds that "the Vigilant-Watch Ordinance is the same as the humanitarian doctrine," while the Gubernick Case holds that "it may be true that the Vigilant-Watch Ordinance in a way covers some ground involved in our `last-chance rule' or `humanitarian doctrine,' but it is not the `last-chance rule;'" second, The opinion holds that under the Vigilant-Watch Ordinance "defendant is only responsible for the failure of its motorman to exercise ordinary care to stop the car by the use of the appliances at hand with safety to the passengers," while the Gubernick Case holds that "the ordinance requires not only a vigilant watch but prompt action in stopping the car."

By attempting to draw the foregoing distinctions, relator is in fact insisting that the Vigilant-Watch Ordinance requires something more than ordinary care. However, the question as to whether or not the ordinance exacts more than ordinary care was neither presented nor decided in the Gubernick Case. What that case decided was that contributory negligence is a defense to negligence which is a violation of the Vigilant-Watch Ordinance. Moreover, there is nothing in the Gubernick Case which is contradictory of the principle enunciated in the Sluder Case. This relator admits, for in his reply brief he says:

"There is nothing in the Gubernick Case which militates against the Sluder Case; in fact, we have been unable to find a case which holds that the Vigilant-Watch Ordinance exacts anything more than the common-law duty of ordinary care in the circumstances to which the ordinance applies."

Having ruled, supra, that the Court of Appeals followed the Sluder Case, which case, as has just been said, is in harmony with the Gubernick Case, by logical sequence it ensues that the opinion of that court is not in conflict with the Gubernick Case. But, even if a conflict did exist, the Gubernick Case being a divisional opinion it would have been the duty of the Court of Appeals to follow the Sluder Case, which is the last previous decision of this Court in Banc upon the degree of care required under the Vigilant-Watch Ordinance. [State ex rel. United Railways Co. v. Reynolds, 278 Mo. 554.]

III. Relator further insists that the ruling of the Court of Appeals is in conflict with the following decisions of this court, viz: Esstman v. United Railways Co., 216 S.W. l.c. 528; Spencer v. Transit Co., 222 Mo. l.c. 323-4; White v. Railroad, 202 Mo. l.c. 555, 564; Eckhard v. Transit Co., 190 Mo. l.c. 605-621; Riska v. Railroad, 180 Mo. 168; and Hovarka v. Transit Co., 191 Mo. l.c. 454-5. We shall consider these casesseriatim.

In Esstman v. United Railways Co., supra, the judgment below was reversed and the cause remanded by Division One of this court on account of an erroneous instruction given for defendant. The said instruction was in no way declarative of the Vigilant-Watch Ordinance, but told the jury that if they believed from the evidence that the plaintiff "ran from the east side of High Street into the car at or near the rear trucks thereof, while the same was in motion, and thereby received his injuries, your verdict must be for defendant." It was only incidentally, in discussing a possible basis for the giving of the instruction, that the measure of the duty of defendant's motorman was touched upon, and then nothing was said which is violative of either the ruling of the Court of Appeals or our enunciation in the Sluder Case. The question here present was not involved, and the case cannot in any sense be said to be controlling.

In Spencer v. Transit Co., supra, decided by Division One, relator contends that an instruction similar to that in the case at bar was approved. The instruction in the Spencer Case merely recites the duty of defendant under the Vigilant-Watch Ordinance, then declares that any failure to perform such duty was negligence, and closes with the charge that if the deceased's death was the result of such negligence plaintiffs were entitled to recover unless plaintiffs or the deceased were guilty of contributory negligence. The said instruction is entirely dissimilar to relator's instruction one, and does not contain the elements criticised by the Court of Appeals. Furthermore, the error urged in Division One against the instruction in the Spencer Case was that "it submits a question of law to the jury and is misleading." It was counter to this contention that the instruction was approved, and the question now receiving our attention was not then present or considered. Under such circumstances the approval of the instruction cannot in this proceeding give it the force of a judicial decision.

In White v. Railroad, supra, also decided by Division One, relator urges that an instruction similar to his Instruction One was approved. An examination of the instruction in that case will show that it was predicated upon the premise that the plaintiff could recover if the jury found that the motorman "saw" the plaintiff upon the track or so near the same as to be in danger of injury, and that he thereafter "could have stopped said car" without injury thereto or to the passengers, and by so stopping the car could have averted the injury, but neglected to do so, while the instant instruction charges that plaintiff can recover if the jury found that by keeping a vigilant watch the motorman"would and could have seen" the truck upon which relator was riding, and that thereafter "by stopping said car" would and could have avoided the injury, but neglected to do so. (Italics ours). The dissimilarity of the two instructions is manifest. But, regardless of any dissimilarity, the instruction in the White Case, is in harmony with the Sluder Case and therefore in harmony with the ruling of the Court of Appeals, which followed the Sluder Case, by reason of the fact that in the White Case Division One cited the Sluder Case as authority for sustaining the instruction. Consequently there is no conflict between the White Case and the opinion of the Court of Appeals, as contended.

In Eckhard v. Transit Co., and Riska v. Railroad, supra, both opinions by Division Two, relator also claims that instructions similar to his instruction were approved. In the Riska Case we are not directed to the particular instruction meant, but assume it is that appearing at page 183. An examination of these instructions discloses that they do largely resemble relator's Instruction One. In neither case, however, was any particular objection urged against the instruction and consequently the approval thereof cannot be said to be decisive of a question not raised. The judgment of the court was not called for on any phase of the Vigilant-Watch Ordinance, and it is therefore patent that in those cases there can be no conflict with the opinion of the Court of Appeals bearing upon that subject. And this is equally true of all the other instructions cited by relator and reviewed by us as above.

As to the remaining case of Hovarka v. Transit Co., supra, a decision by Division One, relator asserts that the opinion of the Court of Appeals is in conflict therewith for the reason that "the opinion holds or seems to hold that any statement in an instruction, defining a motorman's duties under a Vigilant-Watch Ordinance, should be qualified by the use of the expression `by the use of ordinary care,'" while the Hovarka Case holds "that a court would be justified in refusing an instruction asked, defining the motorman's duty not more explicitly than by the words `ordinary care.'" The question made in the Hovarka Case, as suggested by counsel for respondents herein, related alone to the action of the trial court in striking out of two instructions the words "ordinary care" and inserting in lieu thereof the words "proper care." The entire discussion of VALLIANT, J., speaking for the court, revolved around this substitution, and his final determination was that "there was no error affecting the merits of the case to the injury of defendant in the modification in these instructions." Furthermore, under the particular facts in the Hovarka Case, it was expressly said that "there was no roomin the testimony of either the plaintiff or the defendant for aquestion of degree of care the motorman ought to have exercised. . . . Between these two conflicting and utterly irreconcilable alleged conditions, what possible effect could it have on the verdict of the jury to instruct them on the degree of care the law required of the motorman?" (Italics ours). It is evident therefore that the question before us was not there considered. The Hovarka Case is accordingly nowise in point.

IV. I am unable to agree with the majority opinion where it holds that the opinion of the Court of Appeals contravenes the case of Cytron v. Transit Co., 205 Mo. 692. This for two reasons, First, The Cytron Case does not pretend to discuss the degree of care required by the Vigilant-Watch Ordinance. This court there contented itself with merely approving an instruction attacked upon the ground that it submitted to the jury the proposition as to whether the motorman, by keeping a vigilant watch, could have seen the deceased and stopped the car and averted the collision, when there was no evidence, except that of the motorman himself, as to his ability to stop. The objection urged was not the degree of care required by the ordinance, but the insufficiency of the evidence as a predicate for the instruction (pages 695, 716). Second, The majority opinion seems to entirely overlook the fact that the instruction approved in the Cytron Case embodied the words "bythe exercise of ordinary care" (page 716). Manifestly, therefore, the instruction is in harmony with the Sluder Case. This being true, and the Court of Appeals having followed the Sluder Case, the opinion of the Court of Appeals cannot be held to be out of harmony with the Cytron Case.

V. By the foregoing we have endeavored to demonstrate the lack of conflict between the cases cited and the opinion of the Court of Appeals. However, irrespective of the question of conflict, there remain the following insuperable barriers which militate against our sustaining relator's contentions, to-wit: That the Sluder Case is the last decision of this court in banc upon the degree of care required by the Vigilant-Watch Ordinance; that all of the foregoing decisions cited by relator, except the Sluder Case and the Cytron Case, are divisional opinions; and that under our ruling it became the duty of the Court of Appeals to follow the Sluder Case, which in our judgment it has done.

It follows that the writ herein was improvidently granted and should be quashed.

Accordingly, I very respectfully dissent from the majority opinion holding to the contrary.