Opinion
No. 28010.
March 20, 1951.
APPEAL FROM THE CAPE GIRARDEAU COURT OF COMMON PLEAS, J. HENRY CARUTHERS, J.
J. Grant Frye, Cape Girardeau, for appellants.
Harry C. Blanton, David E. Blanton, Sikeston, for respondent.
This is a negligence action brought by plaintiffs, Maggie Crites and Ola Arnell
Crites, against defendant, Ora Bollinger. The petition was in three counts. By count one of the petition plaintiff Maggie Crites sought damages for personal injuries received by her as the result of a collision on June 26, 1949, between a car belonging to and operated by her son, Ola Arnell Crites in which car she was a passenger, and an automobile owned and operated at said time by defendant. By count two of said petition plaintiff Ola Arnell Crites sought recovery of damages for personal injuries alleged to have been sustained by him at said time. By count three of the petition plaintiff Ola Arnell Crites sought damages to his automobile. Defendant, Ora Bollinger, filed a counterclaim for property damage to his automobile. The jury returned a verdict against the plaintiffs and in favor of defendant on all counts of the petition, and in favor of defendant for $100 on his counterclaim. From the judgment on these verdicts, plaintiffs have appealed.
The collision occurred on U.S. Highway 61 in Cape Girardeau County, a short distance east of the intersection of said highway with Missouri State Highway 25. Highway 61, at the place in question, runs east and west. Highway 25 runs north and south. Both highways are paved, and are level and straight at the place in question. The concrete pavement on Highway 61 is eighteen or twenty feet wide. At the point of collision there was a solid shoulder about eight feet wide south of the paved portion of the highway. The accident occurred, according to plaintiffs' evidence, about 400 feet east of the intersection and, according to defendant's evidence, approximately one-third of a mile from said intersection. The time of day was about 2:00 p. m. At the time, both cars were proceeding eastwardly on Highway 61. Defendant's car was struck in the rear, while stopped on the highway, by the cooperated by plaintiff Ola Crites. The passengers in the Crites car were plaintiff Ola Crites, his mother (Maggie Crites), and his father (G. E. Crites).
The Crites family had been at Fenton, St. Louis County, Missouri, on a visit and were returning to their home in Cape Girardeau at the time of the collision. The defendant, accompanied by his wife, two daughters, and a young man named George Webb, had been visiting in Bollinger County and were on their way to inspect a body shop owned by defendant's nephew, which shop was located on the north side of Highway 61, opposite the place where the collision occurred.
At the time of the collision it was raining. Ola Crites testified: "it was raining terribly hard at that time, it was dark and cloudy." On cross-examination he testified his view was obstructed by the heavy rain at the time. Maggie Crites testified that as they approached defendant's car, "I noticed the car and I could see the car, you know, dimly, you know how rain between you and a car would dim the vision." She further stated that on account of the rain she could not actually tell how far ahead defendant's car was at the time, and that they were probably twenty or twenty-one feet from the defendant's car when she realized that it had stopped. She said: "Oh, it was raining, it was raining hard. * * * Very hard rain," at the time of the collision.
Shortly before the collision Ola Crites, who had been proceeding south on Highway 25, brought his car to a stop at the above mentioned intersection. About that time defendant's car, coming from the west on Highway 61, passed through the intersection in front of the Crites car. Ola Crites then turned left onto Highway 61, and drove east behind defendant's car. The events which thereafter transpired were testified to by Ola Crites, as follows: "* * * it was raining terribly hard at that time, it was dark and cloudy, I hadn't driven very far. I was going at a speed of about thirty miles an hour when I was traveling about fifty foot behind Mr. Bollinger, when I was in about twenty-five foot of him I realized he was at a dead stop. I immediately applied my brakes, due to the wet pavement, their application didn't take exact hold right immediately, before my car came to a stop I was into the rear of Mr. Bollinger's car."
The witness further testified that defendant did not give any signal or warning of his intention to stop.
At the time of the collision both cars were in the south lane of the concrete highway. Defendant was stopped just west of the driveway which led into the premises of the body shop and filling station which were north of the highway.
On cross-examination, plaintiff Ola Crites testified as follows:
"Q. Your view of the Bollinger car over that straight level highway was unobstructed from the time you pulled in behind it until you ran into the rear end of it? A. No, sir.
"Q. What obstructed your view? A. Heavy rain. I wasn't very close to him there for a while at the beginning when I first pulled on."
The witness further testified that he had been driving forty miles per hour but slowed down to thirty miles per hour when his vision became impaired by the rain. He further testified: "There was no hand signal and no lights, but I was in about twenty feet of his car when I realized he had come to a stop; in doing so, I applied my brakes immediately, due to the wet pavement condition, I was right on him." When asked why he did not pull onto the shoulder, which he had stated was in good condition, the witness replied: "My eyes were on the road, it was raining hard, I wasn't worried about the shoulder at that time, I was keeping my eyes on the road, I don't drive along looking at the shoulder." He further testified that at that time he saw another car coming from the east and stated: "I wouldn't pass no car when another car is coming down the other lane. * * * I put my brakes on immediately. By the time the brakes taken hold, I was in the rear end of his car. * * * I put them on when I was coming thirty miles an hour trying to stop. I didn't hit him with thirty miles an hour speed. * * * I didn't look at the speedometer, I didn't have time. I estimate it was ten miles an hour, but maybe less." The witness stated that after the collision he asked defendant: "Did you put out your hand?" The witness stated defendant replied: "No, it was raining too hard at that time."
Defendant testified that as he approached the driveway which led into his nephew's shop — "I slowed down gradually when I was going to stop, seen this other car coming over the hill, I had my foot on the brake and my hand out, not very far, it was raining so hard. * * * I stuck my hand out, I thought he could see it plain enough.
"Q. You also put your foot on the brake? A. That's right.
"Q. Did you put your foot on the brake from the time you first started to slow down? A. Just a little bit, I didn't want to stop too quick.
"Q. You slowed down gradually? A. Yes, sir.
"Q. And kept your foot on the brake? A. Yes, sir.
"Q. Did you still have your foot on the brake at the time of the crash? A. Yes, sir."
When asked if his car was knocked forward or to one side, defendant answered: "No, it didn't knock it to one side, it was squarely in the rear end, about half the distance of a car, it couldn't roll much, the impact of the car hit it about half the length of a car."
Defendant further testified that after he had brought his car to a stop he looked into the rear vision mirror and saw the Crites car approaching about seventy-five or one hundred feet away. He stated that there was another car coming from the east and that "when I first seen the car coming it was about seventy-five feet, sixty or seventy-five, it was coming pretty fast." When asked if this car had passed at the time of the collision, the witness replied: "As far as I could tell, almost everything happened right at once, as far as I could tell."
George Webb, who was seated in the rear seat of defendant's car, stated that after defendant's car passed the intersection —
"Mr. Bollinger gradually slowed down in his car with his foot on the brake, had his hand out for a signal, came to a stop slowly. * * * I had my left hand up on the back of the seat, glancing at this rear window, looking at the building, I saw the Crites car approximately six foot behind, I knew it was going to hit us, but I didn't say anything because there wasn't time.
"Q. That is while the Bollinger car was stopped? A. Yes, while it was stopped on the right side of the highway."
Mr. Webb further stated that he observed the car approaching from the east and that: "it was very close at the time of the accident." On cross-examination, he stated that the west bound car was about seventy-five feet away at the time defendant stopped his car.
Defendant's daughter Marilyn Bollinger was seated in the middle of the rear seat of defendant's car. She stated that when defendant's car stopped, her father "had his arm stuck out the window signaling * * * not quite as long as we had stopped there, I don't think," but that, "he had it out for some appreciable time." She stated that her father "gradually slowed down." On cross-examination, this witness testified that she saw the car approaching from the east and that it was quite a distance away, but "he (defendant) couldn't turn quick enough to keep from being hit by this other car coming," and that the car from the east had passed at the time of the collision.
Mrs. Frieda Bollinger, defendant's wife, testified that the car coming from Cape Girardeau passed while defendant was stopped, waiting to make the turn.
Mozelle Bollinger, also a daughter of defendant, testified that her father slowed down his car gradually and that, "he stuck his hand out the window."
Mrs. Frieda Bollinger further testified:
"Q. I will ask you whether or not that car was equipped with a good tail light? A. Yes, sir.
"Q. Did the tail light on your car work? A. Yes, sir."
When asked what her husband did as he approached the drive leading to the body shop, the witness answered: "He held out his left hand and had his foot on the brake. * * * Well, I should judge, around half a minute or a few seconds." She said the speed of defendant's car as he approached the place of the collision was, "Well, I guess around 20, 25, or 30, somewhere in there." She stated that defendant's car had been stopped just a few seconds when the collision occurred; that as he approached the point where he stopped, he decreased the speed of his car gradually; that he put his foot on the brake and held out his hand and stopped on the right hand side of the highway just west of the driveway that leads into the body shop. She also stated that the impact drove defendant's car forward six or eight feet.
Appellants assign as error the giving of defendant's Instructions 7, 8, 9, and 16. Instructions 7 and 8 submitted, respectively, contributory and concurrent negligence of Ola Crites as a defense to counts two and three of plaintiffs' petition. Instruction No. 9 submitted contributory negligence of plaintiff Maggie Crites as a defense to count one of the petition. Instruction No. 16 submitted defendant's counterclaim. In support of said assignment, appellants contend that each of the foregoing instructions is erroneous for the reason that in each the issues of "excessive speed" and "failure to keep his (plaintiff Ola Crites') car under control," which were pleaded in defense to plaintiffs' causes of action and as the basis of the cause stated in defendant's counterclaim, were submitted without hypothesizing the facts in evidence relevant to said issues, thereby giving the jury a roving commission to speculate and make their own determination as to what conduct constituted negligence without any guide to aid them in making such determination.
Instruction No. 16 charged that if the jury found that at the time in question defendant was driving his automobile on Highway 61 near its intersection with Highway 25, toward the City of Cape Girardeau; that plaintiff Ola Crites was also operating his automobile over said highway and traveling in the same direction, immediately following defendant's automobile; that at said time and place the defendant signaled that the car he was driving was going to slow down or stop, and that at said time and place the plaintiff, Ola Crites, failed to exercise the highest degree of care by:
"(a) Driving his automobile at a high, excessive and dangerous rate of speed at the time, place and circumstances considered; or
* * * * * *
"(d) That the plaintiff, Ola Crites, failed to have his automobile under such control as to be able to stop the same upon the appearance of danger;
"and as a result of the failure of the plaintiff, Ola Crites, in any one or more of these particulars so enumerated, the plaintiff, Ola Crites, failed to stop his automobile so as to avoid hitting the defendant's automobile, and further find and believe from the evidence that by reason of the failure to exercise the highest degree of care as above set out, and as a direct result thereof, the plaintiff's automobile ran into the defendant's automobile, and that defendant's automobile was damaged thereby, then your verdict will be in favor of the defendant and against the plaintiff, Ola Crites, upon the defendant's counterclaim."
Negligence being usually a question for the jury, an instruction submitting such issue should hypothesize relevant facts in evidence relied on and which would justify a finding of negligent conduct. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Green v. Guynes, Mo.Sup., 235 S.W.2d 298; Dahlen v. Wright, Mo. Sup., 235 S.W.2d 366; Burgher v. Niedorp, Mo.App., 50 S.W.2d 174; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30.
In the case at bar, the only facts submitted by Instruction No. 16 were: (1) that defendant was driving his car toward Cape Girardeau on Highway 61 near its intersection with Highway 25; (2) that Ola Crites was operating his automobile over said highway in the same direction and immediately following defendant's car; and (3) that at said time and place the defendant signaled that he was going to slow down or stop. Clearly, these are not sufficient facts from which to find that defendant was "driving his automobile at a high, excessive and dangerous rate of speed at the time, place and circumstances considered." There were a great many facts in evidence from which the jury might reasonably have found that the plaintiff Ola Crites was guilty of the negligence charged, and these facts should have been hypothesized in the instruction as a guide to the jury in determining the issue.
Bearing on the issue of negligent speed were the wet condition of the pavement, the short distance between the cars as they proceeded down the highway, the poor visibility due to the heavy downpour of rain, the rate of speed of the Crite's car, the rate of speed of the defendant's automobile, the nature of the signal given, the nature of the stop made by defendant, whether abrupt or gradual, and the distance required to make said stop, none of which were hypothesized in the instruction. In our opinion, the giving of Instruction No. 16 was error. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Green v. Guynes, Mo.Sup., 235 S.W.2d 298; Dahlen v. Wright, Mo.Sup., 235 S.W.2d 366.
Respondent contends that the Yates case, supra, is not controlling, for the reason that in the case at bar many of the above mentioned facts were undisputed, making it unnecessary to incorporate them in the instruction. In our opinion, there is no merit to this contention. Under the doctrine of the Yates case, supra, an instruction purporting to cover the whole case should require a finding of facts from which the jury could reasonably find the defendant negligent in the respects charged. The purpose of such a rule is to furnish the jury a guide in determining the issue submitted, and to prevent them from speculating as to what facts would support recovery. Said purpose would be defeated if we should adopt the respondent's view.
It is further contended that the instruction should not be held erroneous for the reason that many of the facts relevant to the issue submitted by said instruction were incorporated in Instruction No. 2, given at the request of plaintiffs. In presenting this argument, respondent relies on the principle that all instructions should be read together as a single charge, and if, when so considered, they fully and fairly instruct the jury as to every material fact necessary to recovery, they will be considered sufficient. This rule is not applicable here.
Instruction No. 2 did not present the same issue as was presented by Instruction No. 16, but submitted the issue of defendant's negligence under count one of the petition. Instruction No. 16 submitted the alleged negligence of plaintiff Ola Crites under the counterclaim filed by defendant.
Respondent further contends that since Instruction 2 contains the same vice as Instruction 16, the error was common, and therefore Instruction 16 should not be held erroneous. The error in defendant's instruction was not rendered common by Instruction 2, since the latter did not present the same issue as Instruction 16. Burgher v. Niedorp, Mo.App., 50 S.W.2d 174, loc. cit. 177.
The alleged errors with respect to Instructions 7 and 8 need not be considered. Appellants' complaint with respect to each is based upon the theory that they are erroneous under Yates v. Manchester, supra. Counsel for both parties should be able on a re-trial to draft a set of instructions which will be consistent with the Yates doctrine, without further discussion on our part.
Further complaint is made against Instruction No. 9, given by the Court at the request of defendant. Said instruction submitted the issue of contributory negligence on the part of plaintiff Maggie Crites as a defense to the cause of action stated in count one of the petition. The contributory negligence relied on in said instruction was said plaintiff's act in permitting herself to be driven at a highly excessive and dangerous rate of speed and too close to defendant's car when, in the exercise of ordinary care, she would have observed said negligent driving on the part of her son and warned him of such circumstances, which she failed to do. The complaint urged against this instruction is that it should not have been given, for the reason that there was no showing that Maggie Crites realized she was in a dangerous position. Appellant would apply the subjective standard of conduct rather than the objective test, which is that care exercised by the ordinarily prudent person under like or similar circumstances. There is no merit to the point made.
Appellants also urge that defendant was guilty of contributory negligence as a matter of law. This contention, in our opinion, is without merit. We believe that an examination of the evidence adduced, which we have detailed at some length in this opinion, convincingly shows that the issue of defendant's negligence, as well as the negligence of plaintiffs, was for the jury.
Since the court erred in giving and reading to the jury defendant's Instruction 16, the judgment will have to be reversed and the cause remanded for new trial. It is so ordered.
McCULLEN and BENNICK, JJ., concur.