Summary
In Burlingame v. Landis, Mo.App., 234 S.W.2d 808, 812, the Kansas City Court of Appeals, after quoting the statute that drivers of motor vehicles must exercise the highest degree of care, stated the law thus: "* * * The courts have uniformly held that this section requires the operator of a motor vehicle to use the `highest degree of care' and have defined that phrase to mean such care as `a very careful and prudent person would ordinarily exercise under the same or similar circumstances.
Summary of this case from Young v. AnthonyOpinion
No. 21497.
December 4, 1950.
APPEAL FROM THE PETTIS COUNTY CIRCUIT COURT, W. M. DINWIDDIE, SPECIAL JUDGE.
Fred F. Wesner, Sedalia, for appellant.
Bogutski Bamburg, Sedalia, for respondent.
This is an action to recover damages alleged to have resulted from the collision of plaintiff's truck with defendant's automobile. Trial resulted in a verdict and judgment for plaintiff in the sum of $2,000, from which the defendant has appealed.
Plaintiff's petition alleges that about noon on November 14, 1949, he was operating his motor truck in a westerly direction on East Third Street in the City of Sedalia, and that at said time and place an automobile belonging to the defendant was negligently and carelessly parked unattended about four feet from the north side of Third Street facing west. The specific charges of negligence are: (1) That defendant, in parking and leaving his automobile at a distance of about four feet from the righthand side of the street violated the rules of the road as expressed in Sec. 8385, R.S. 1939, Mo.R.S.A., to the effect that all vehicles not in motion shall be placed with their right sides as near the right-hand side of the highway as practicable; (2) that the parking of defendant's automobile in the manner alleged was likewise in violation of certain ordinances of the City of Sedalia.
Defendant's answer denies the negligence charged and pleads contributory negligence in the following respects: (a) That plaintiff negligently and carelessly failed to exercise the highest degree of care in the management, control and operation of his motor truck while driving it in a westerly direction on East Third Street, and negligently and carelessly turned and drove the same into the rear part of defendant's motor car at a time and under circumstances such that had he proceeded directly on in his westerly course he would not have collided with defendant's car; (b) that plaintiff negligently and carelessly drove his motor truck at a high and dangerous rate of speed; (c) that after plaintiff saw and knew defendant's motor car was stopped and parked in a position on the north side of Third Street, and knew and saw that there was traffic approaching on Third Street from the west, traveling east, the plaintiff thereafter negligently and carelessly failed to exercise the highest degree of care to keep his motor truck under such control so as to be able to reduce the speed thereof and stop the same before coming into collision with the rear of defendant's car.
Plaintiff's main instruction submitted to the jury the question of defendant's negligence in failing to park his car as near to the right-hand side of the street as practicable. There is no criticism of that instruction; neither is there any contention that plaintiff's evidence failed to make a submissible case. Defendant's principal instruction submitted the issue of contributory negligence on all grounds alleged in his answer.
The only alleged errors preserved are the giving of plaintiff's instructions 2 and 3, which will be considered later.
The evidence discloses that Third Street, in the City of Sedalia, is an east and west thoroughfare, and is 40 feet, 8 inches wide from curb to curb; that Engineer and Hancock Streets run north and south and intersect Third Street.
Plaintiff testified that he was 30 years old and was engaged in the huckstering business and at times also dressed poultry for hire; that he had been doing that type work for several years and had driven a car or truck for approximately 14 years. Concerning the cause of the collision, he testified: "I was at Third and Engineer and had started to Waverly to get a load of apples and I was going west on Third Street just west of Hancock. I saw a car parked out from the curb approximately four feet, three foot and ten inches to be exact, and I started to go by the car and I saw a truck ahead of me approximately fifty or fifty-five feet. As I started to pass the car I glanced through the side mirror of the truck and saw a panel truck coming at a good speed, pretty fast and I knew that the truck coming from the west was coming, I would say approximately 25 or 30 miles an hour and when I glanced up and saw this panel truck coming from behind I didn't think I could make it through so I hit the break and clutch on the truck and got into the right behind Landis' car and I couldn't get completely stopped and I hit the car and we — I got out of the truck as soon as I could, * * *. When I got out and got around there the panel truck had gone out of sight and I couldn't get out in time to flag the truck down, so I went around and talked to Mr. and Mrs. Landis and found out she wasn't hurt and we talked there for quite sometime."
On cross-examination he testified that the collision occurred about noon on a clear, dry day; that he saw defendant's car parked when he was about 75 or 80 feet from it; that he was traveling about 25 miles an hour and did not slacken his speed until he saw the "panel truck" attempting to pass him; that there were no other vehicles on the street except two cars parked parallel with the curb on the south side of Third Street and to the west of the Landis car, which was on the north side of the street; that about the time he undertook to pass the Landis car the "panel truck" undertook to pass him on his left, and it appeared to him that there would be a collision of the three trucks if he continued straight ahead so he turned to the right and applied the brakes, but was unable to stop before colliding with defendant's car.
There is some conflict in the evidence as to the exact location of defendant's car and the three trucks at different times during the development of the situation which caused the collision; but because of the errors assigned, and the verdict of the jury having resolved such disputed evidence in plaintiff's favor, we need not go into greater detail.
Because of the charge that plaintiff's instruction No. 2 is erroneous in several particulars, we set it out in full. "The court instructs the jury that if you find and believe from the evidence that the plaintiff was operating his motor vehicle in a westerly direction on East Third Street in a careful and prudent manner, and if you further find that an oncoming truck was approaching on Third Street from the west, and if you further find that a panel truck was approaching and overtaking plaintiff's truck from the rear, and if you further find that it reasonably appeared to plaintiff that the plaintiff's truck, the oncoming truck and the panel truck would meet at the same or about the same time at the place where defendant's automobile was stopped, and if you further find that a reasonable and prudent person in plaintiff's situation exercising the highest degree of care would apprehend that sudden danger of a collision existed and that there was no time for cool deliberation before acting, and if you further find that plaintiff turned his vehicle to the right and applied his brakes, and if you find and believe from the evidence that this action, if you so find, was what an ordinary prudent man might do under the same circumstances, then you are instructed that plaintiff was not guilty of any negligence contributing to his own injury or damage, if any."
Defendant's first contention is that the evidence does not entitle plaintiff to an instruction based on the emergency doctrine. He cites certain cases which announce the general rule that where the acts of a person create the emergency, then he cannot set up the emergency as a defense or as an excuse for his own action. Shaw v. Fulkerson, 339 Mo. 310, 96 S.W.2d 495, 498; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541, 547; Hall v. St. Louis-San Francisco Rwy. Co., Mo.Sup., 240 S.W. 175. There can be no doubt about that being the general rule.
With this general principle as a basis, defendant argues that the plaintiff created the emergency because he saw defendant's car parked about four feet from the north curb when he was 75 or 80 feet away, and that at that time he saw the "stake bed truck" approaching from the west, and that it became his duty to stop or reduce the speed of his truck, which he failed to do. The weakness of this argument is that the evidence would justify the jury in finding that it was not negligence for the plaintiff to fail to stop or reduce the speed of his truck when he was 75 or 80 feet from defendant's car, because the evidence is that Third Street is 40 feet, 8 inches wide, and that the approaching truck from the west was as near its righthand side as practicable and that there was ample space for plaintiff's truck and the east bound truck to meet and pass at or near defendant's car; that no emergency arose until the "panel truck" undertook to pass plaintiff at a time when he was within a few feet of the defendant's car. We think it was clearly a jury question whether the plaintiff should have stopped or reduced his speed at the time he first saw defendant's car.
It is also contended that the instruction is erroneous because it improperly defines the standard of care required of plaintiff as he drove his truck along Third Street approaching the place of emergency. The instruction required the jury to find that plaintiff was operating his truck "in a careful and prudent manner"; instead of requiring him to operate the same with "the highest degree of care." Plaintiff contends that the two quoted clauses mean the same and, in support of that contention, cites Windsor v. McKee, Mo.App., 22 S.W.2d 65, 66. That case lends support to plaintiff's contention, but we shall pursue the question further.
Sec. 8383 provides that: "Every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, and at a rate of speed so as not to endanger the property of another or the life or limb of any person, * * *." The courts have uniformly held that this section requires the operator of a motor vehicle to use the "highest degree of care" and have defined that phrase to mean such care as "a very careful and prudent person would ordinarily exercise under the same or similar circumstances." Jungeblut v. Maris, 351 Mo. 301, 172 S.W.2d 861, 863; Woods v. Chinn, Mo.App., 224 S.W.2d 583, 587. Both statutory phrases have a technical meaning and should be properly defined. State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667, 670. The words defining the degree of care required of a motor vehicle operator have been carefully chosen by the courts to distinguish it from ordinary care. Thus an instruction which uses the statutory phrase, "in a careful and prudent manner," must define that phrase to mean the same care as "a very careful and prudent person would ordinarily use under the same or similar circumstances." If so defined, it would not be inconsistent with the phrase, "highest degree of care." King v. Friederich, Mo.App., 43 S.W.2d 843, 844. However, we do not have any instruction in this case defining the clause, "in a careful and prudent manner." On the contrary, defendant's instruction submitting contributory negligence required the plaintiff to use the "highest degree of care" as he drove along Third Street, and then proceeded to define that clause in the usual and proper language.
Thus we have this situation: Defendant's instruction, submitting contributory negligence, required the jury to find that plaintiff was exercising the "highest degree of care" and properly defined that phrase; while plaintiff's converse instruction, on contributory negligence, required the jury to find that he was operating his motor vehicle "in a careful and prudent manner" without defining that phrase. Under such circumstances, can it be said that the two phrases mean the same thing? We think not.
It is true that plaintiff's instruction required him to use the "highest degree of care" after the emergency arose, but that does not cure the defect in his failure, if any, to use the "highest degree of care" prior to the time of the emergency. It is doubtful that the law required plaintiff to use the "highest degree of care" after the emergency arose, but we are not concerned with that question. See Mayne v. May Stern Furn. Co., Mo.App., 21 S.W.2d 211, 213.
We return to a consideration of the opinion in Windsor v. McKee, supra.
In that case Windsor had sued McKee for damages resulting from an automobile collision, and McKee filed a counterclaim seeking damages for plaintiff's alleged negligence. In submitting his cause of action on his counterclaim, McKee's instruction "A" authorized a verdict for him upon a finding by the jury that he was operating his automobile "in a careful and prudent manner," and a finding of other facts hypothesized. Plaintiff contended that the clause, "in a careful and prudent manner," meant the same as to say that defendant was operating his car in an "ordinarily prudent manner," and not that he was using the "highest degree of care." The court said, 22 S.W.2d 66: "If McKee was not exercising the highest degree of care in the operation of his automobile, he was not operating it `in a careful and prudent manner.' If plaintiff had requested an instruction advising the jury that, if McKee failed to exercise the highest degree of care in the operation of his automobile, and such failure directly contributed to his injury, he was guilty of contributory negligence, and could not recover, there would have been no conflict whatever between such instruction and the defendants' instruction, but the two would have been perfectly harmonious." (Italics ours.)
This case seems to hold that the phrase, "in a careful and prudent manner," without the proper definition, means the same as "highest degree of care" properly defined. We are unwilling to agree that this is a proper construction of the two phrases. There are many cases discussing instructions which include both phrases, but in such cases there is a proper definition of the care required. Jungeblut v. Maris, supra.
It seems to us that the quoted phrase in plaintiff's instruction, being undefined, is inconsistent with defendant's instruction properly defining "highest degree of care." This inconsistency would tend to mystify rather than aid the jury in reaching a correct conclusion. Plaintiff's instruction was a misdirection upon a vital issue in the case and constitutes prejudicial error which will cause a reversal of the judgment and a remanding of the cause. It is so ordered. But considering our opinion to be in conflict with the opinion of the St. Louis Court of Appeals in Windsor v. McKee et al., supra, we transfer this cause to the Supreme Court. Sec. 10, Art. 5, Const. Mo.R.S.A. It is so ordered.
All concur.