
    THE STATE ex rel. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Petitioner, v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    February 9, 1915.
    1. CERTIORARI: To Court of Appeals: Conflict in Decisions. A decision of a Court of Appeals will not, upon certiorari, be quashed on the theory that it is in conflict with the law as established by the last previous decision of the Supreme Court, if there is no such conflict.
    2. -: -: -: Acceptance of Statement of Court of Appeals as True. In determining upon certiorari, whether or there is conflict between a decision of a. Court of Appeals and the last previous decision of the Supreme Court, statements of facts, evidence or pleading contained in the opinion of the Court of Appeals will be accepted by the Supreme Court, which . will not look beyond such recitals for any other ground for quashing its judgment.
    3.--: -: -: Negligence: Waiting on Passenger Platform: Leaning Against Truck. A fourteen-year-old boy was waiting on a railroad platform for the arrival of a train. On the platform was a truck upon which flour had been piled; one leg of the truck was broken, and as the boy leaned against the truck, his weight caused it to fall, because it had no sufficient support, and in falling it struck and broke the boy’s leg, and the Kansas City Court of Appeals held that he was using the platform for the very purpose for which it was intended, that he had a right to assume that a truck loaded with freight was not a trap loaded with concealed danger, and that such holding was not in conflict with Kelley v. Lawrence, 195 Mo. 75, wherein it was held that an employee who in passing through a dark viaduct of a buggy warehouse attempted to sit down on a railing or banister, with which he was familiar and which he knew was not intended to be used as a seat, was guilty of contributory negligence. Held- that there is no conflict; and, hence, the decision of the Court of Appeals affirming a judgment for one thousand dollars for the boy, will not be quashed.
    
      Certiorari.
    
    Writ quashei>.
    
      John E. Dolman and O. E. Shultz for petitioner.
    Respondents herein exceeded their jurisdiction in their acts and proceedings in the case of Stark v. Railroad for the following reasons: (1) Their ruling and decision that a loaded truck on a depot platform should be loaded in such a manner as to be safe to “lean or lounge” against b> those waiting for a train on such platform, is in conflict with the decisions of this court. Kelley v. Lawrence, 195 Mo. 75. (2) It is not controverted that the truck was loaded and placed on the platform voluntarily by a third person without the knowledge of the railroad company or its agents and in less than an hour of the time of the injury complained of; however, respondents held as a matter of law that the railroad company knew that the truck was loaded and loaded in a dangerous manner, and that the question of notice of the defect by the company was not one to be submitted to the jury. This was in direct conflict with the decisions of this court. Crawford v. Stock Yards Co., 215 Mo. 414; Langan v. Railroad, 72 Mo. 398; Badgley v. St. Louis, 149 Mo. 134; Yonkey v. St. Louis, 219 Mo. 37; Goodrich v. Railroad, 152 Mo. 233.
    
      Kendall B. Randolph, Edward G. Robinson, W. M. Williams, R. A. Mooneyham, Fra/nk L. Forloio, E. P. Garnett, Atwood & Hill, and Park & Brown for respondents.
    The Constitution of 1875 and the Amendment of 1884 repose in the Courts of Appeals final appellate jurisdiction. This court had no appellate jurisdiction over them. The remedial writs were provided to keep those courts within their proper jurisdiction, but not to correct their errors. Constitution, art.' 6, secs. 2, 3, 12; R. S. 1909, pp. 88, 93, 94. The St. Louis Court of Appeals in those cases originating within its territorial jurisdiction in which the amount in dispute did not exceed two thousand five hundred dollars, not involving constitutional or federal questions, nor the revenue jaws, nor the title to real estate, nor the title to any office under the State, and wherein a county or other political subdivision of the State or a State officer was not a party, and not cases of felony, had, confessedly, final, exclusive jurisdiction. There was no provision for certifying cases. Its errors, if any, in the cases above mentioned were incurable. So long as it proceeded within the bounds of its constitutional jurisdiction in those cases it was subject to review by no earthly power. This was the view taken of the powers and jurisdiction of the St. Louis Court of Appeals in 1876 when the purposes of the Convention and of the people were fresh in the minds of the citizens and the judiciary. Britton v. Steber, 62 Mo. 370; In re Garesche, 85 Mo. 469; State ex rel. v. Philips, 96 Mo. 570; State ex rel. v. Court of Appeals, 99 Mo. 216; State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Smith, 104 Mo. 419; State ex rel. v. Smith, 105 Mo. 6 ; State ex rel. v. Smith, 107 Mo. 527; State ex rel v. Rombaner, 125 Mo. 632; State ex rel. v. Smith, 129 Mo. 585; State ex rel. v. Rombauer, 140 Mo. 121; Smith v. Railroad, 143 Mo. 33; Schaffer v. Railroad, 144 Mo. 170; Morris v. Railroad, 58 Mo. 78; Hess v. Ganz, 145 Mo. 54; Railroad v. Smith, 154 Mo. 300; Bradley v. Ins. Co., 163 Mo. 553; State ex rel. v. Smith, 176 Mo.'90; State ex rel. v. Smith, 173 Mo'. 399; Wilden v. McAllister, 178 Mo. 732; Clark v. Railroad, 179 Mo. 66; State ex rel. v. Smith, 188 Mo. 167; Sublette v. Railroad, 198 Mo. 190; State ex rel. v. Broaddus, 207 Mo. 107; Houck v. Waterworks & E. L. Co., 215 Mo. 475. The writ of certiorari has never been used in this State as a substitute for a writ of error or an appeal and never as a medium of acquiring jurisdiction to determine the merits or details of a controversy. In re Breck, 252 Mo. 323; State ex rel. v. D'obson, 135 Mo. 1; State ex rel. v. Wells, 210 Mo. 621; Ward v. Board of Equalization, 135 Mo. 309; State ex rel. v. Broaddus, 245 Mo. 136.
   STATEMENT.

This is a proceeding by certiorari to review and quash the judgment and decision of the Kansas City Court of Appeals, in reviewing the case of Andrew J. Stark, Jr., by Guardian, v. Chicago, R. I. & Pac. Ry. Co., wherein the plaintiff recovered a judgment in the trial court for one thousand dollars for injuries caused by the fall of a loaded truck, standing on the platform of the railroad station, against which plaintiff leaned, causing it to fall over and catch and break his leg, and inflicting other injuries. The truck fell because it had no proper support at one end — a leg intended to support that end was partly broken, and when the weight of plaintiff, a boy of fourteen, was applied to that end of the truck, it tipped and caused the injury. The truck had been loaded with sacks of flour by a shipper shortly before the accident. The boy was on the platform to meet his father expected to arrive on an incoming train. The Kansas City Court of Appeals, over the. dissent of one of its members, affirmed the judgment of the trial court. The proceeding by certiorari was begun here, upon the allegation in the petition therefor, that the opinion of the Kansas City Court of Appeals affirming the right of plaintiff to have a jury was in conflict with the ruling and decision of this court in Kelley v. Lawrence, 195 Mo. 75. The above facts are stated in the opinion of the majority of the Kansas City Court of Appeals, which opinion also expressly cited the decision of this court in Kelley v. Lawrence, supra, conceding its authority, but stating that it and other cases relied on by defendant below “are not in point. As was said in Winscott v. Railroad, 151 Mo. App. 378, we are not dealing with a case where the plaintiff, traveling on a way prepared only for travel and intended to be used for no other purpose, is injured on account of another use he makes of the place, but with an instance where the plaintiff is injured while using the place for the very purpose for which it was intended and prepared. Plaintiff’s business was that of waiting, in a place provided by defendant for that particular use, and it was not to be expected that he would stand in one particular spot for fear of moving, or that he would regard every object on the platform that offered some means of rest or relaxation as being loaded with concealed danger. Pie had a right to assume that a truck loaded with freight was not a hair-trigger trap that would go off and kill or maim him if he but casually touched or leaned against it. The evidence of plaintiff tends to show that a negligent breach by defendant of its duty to exercise proper care to maintain the station platform in a reasonably safe condition was tbe proximate canse of bis injury. Tbe demurrer to tbe evidence was properly overruled.”

OPINION.

BOND, J.

(After stating tbe facts as above) — In tbe case of State ex rel. v. Reynolds, 257 Mo. 19, it was ruled by tbe majority of tbis court that certiorari would lie to tbe Court of Appeals, for tbe purpose of quashing its judgment if based upon a decision in conflict witb tbe last previous ruling of tbis court. To that doctrine I was unable to agree. But in tbe case cited, it is beld that in exercising its power of supervision by certiorari tbis court would consider only tbe statements contained in tbe opinion of tbe Court of Appeals as to evidence, facts or pleading in tbe cause, and would not look beyond sucb recitals for any other grounds to quash tbe judgment of that court. [State ex rel. v. Reynolds, supra.]

Applying tbis rule to tbe matter in band, we are unable to find in any part of tbe decision of tbe Court of-Appeals certified to us, the announcement of any principle of law repugnant to tbe ruling made by tbis court in. tbe case of Kelley v. Lawrence. . That case is directly referred to by tbe Court of Appeals, its authority is not questioned by them, and they distinctly put their ruling upon tbe ground that tbe facts in tbe case before them were essentially different from those in tbe case of Kelley v. Lawrence. In tbe latter case an employee of tbe defendants passed through a viaduct from tbe main store to another building where bis employer stored buggies for sale, for tbe purpose of making a trade witb a prospective purchaser. Upon tbe return of tbe employee, plaintiff, and tbe purchaser, they stopped in tbe viaduct for tbe purpose of discussing the deal, and tbe plaintiff sat down, or started to sit down, upon the railing on the south side. It gave way with his weight, causing him to fall, and suffer the injuries sued for. Plaintiff testified that he knew the railing was not put there for a seat; that he did not think about it; that he simply backed-up against the rail and sat down, while discussing the deal with his prospective purchaser. The court put its decision upon the following ground:

“The plaintiff in this cause, as disclosed by the evidence preserved in the record, was entirely familiar with the use of this viaduct; he used it frequently for a considerable length of time; he concedes that he knew that this railing or banister was not placed on the sides of the viaduct to be used as a seat or a resting place, and that it was not intended or designed for that purpose; hence the use of it by him in the manner disclosed by the evidence, which resulted in the injuries complained of, must be attributed to his own carelessness and negligence, and this being so, the defendants should not be held liable for such injuries, and the.court properly sustained the demurrer to the evidence interposed by defendants at the close of the plaintiff’s case.”

We fail to see anything in the judgment of the Court of Appeals in the case in hand repugnant to the above ruling of this court, for there was nothing in the evidence recited in the opinion of the Court of Appeals, which shows that the boy injured in this case was guilty of contributory negligence as a matter of law. He was rightfully on the platform of the defendant railroad, and the evidence does not demonstrate that he was aware of the defective and dangerous condition of the broken truck permitted by defendant to remain standing on the platform. The matter in hand, therefore, does not fall within the ruling of the court in the case cited (to which I dissent) that the decision of any Court of Appeals, and its judgment thereon, will be quashed when in conflict with the law as established in this State by the last previous ruling of this court.

It follows that the writ of certiorari in this case was improvidently awarded and should be quashed. It is so ordered.

PER CURIAM.

The foregoing opinion of Bond, J., rendered in Division One is adopted as the opinion of the Court in Banc.

Brown, Bond and Walker, JJ., concur; Blair, J., concurs in result; Graves and Faris, JJ., dissent; Woodson, G. J., not sitting.  