Opinion
No. 42940.
November 10, 1952.
APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
Abraham Altman, William R. Kirby, St. Louis, for appellant.
Dearing Matthes, Will B. Dearing, Hillsboro, for respondents.
This is an action for $15,000 damages for personal injury. Plaintiff has appealed from the judgment rendered upon verdict for defendant, and herein contends error of the trial court in instructing the jury.
Plaintiff had alleged she was riding in an automobile driven by her husband northwardly on Vandeventer Avenue near McRee in St. Louis when defendant, also moving northwardly, negligently drove his truck "into the rear of the automobile" in which plaintiff was riding, and as a direct result of such negligence plaintiff was injured.
The trial court submitted plaintiff's case to the jury by plaintiff's requested principal Instruction No. 1, as follows:
"The Court instructs the jury that if you find and believe from the evidence that on the occasion in question the plaintiff, Ruth Godfrey, was riding as a passenger in an automobile being driven in a generally northwardly direction on Vandeventer Avenue, * * * and that the defendant, Adolph Bauer was then and there driving and operating his automobile truck in a generally northwardly direction on said Vandeventer Avenue, * * * and if you further find that said automobile truck driven by the defendant Adolph Bauer did collide with the automobile in which plaintiff Ruth Godfrey was riding and that thus and thereby * * * plaintiff Ruth Godfrey was injured; and if you further find that said defendant Adolph Bauer while operating his said automobile truck on said Vandeventer Avenue there, did attempt to pass to the left of the automobile in which Ruth Godfrey was riding as a passenger, * * * and if you further find that in doing so the defendant Adolph Bauer failed to exercise the highest degree of care in the operation of his said automobile truck there, and thereby failed to operate the said automobile truck in such a manner that it could be readily and reasonably stopped upon the appearance of danger, and that as a direct result thereof said collision occurred, and if you further find that such failure and omission of the defendant Adolph Bauer * * * to exercise the highest degree of care in the operation of his said automobile truck was negligence; and if you further find that the aforesaid collision and injury to plaintiff Ruth Godfrey * * * directly and proximately resulted from the aforesaid negligence of the defendant Adolph Bauer * * * then your verdict must be in favor of the plaintiff * * *." (Our italics.)
At the request of defendant the trial court gave Instruction No. 3, as follows,
"The Court instructs the jury that if you find and believe from the evidence that on the 18th day of March, 1950, the plaintiff, Ruth Godfrey, was riding in an automobile being driven by her husband northwardly over Vandeventer Avenue * * *, and if you further find that the automobile in which plaintiff was riding was being driven near the center line of said street, and if you further find that the defendant, Adolph Bauer, was driving his Chevrolet pickup truck in the same direction and to the rear of the automobile in which plaintiff was riding and that he blew the horn on his truck signifying his intention to pass and that the driver of the automobile in which plaintiff was riding pulled to his right and as the defendant was in the act of passing on the left of the automobile the driver turned to his left or to the west and in so doing caused the left rear fender of the automobile to come into contact with the bumper of the Chevrolet pickup truck which the defendant, Adolph Bauer, was operating, and if you further find that the defendant, Adolph Bauer, was at all times exercising the highest degree of care and was not guilty of any negligence but said collision resulted solely from the act of plaintiff's husband in turning to the left as the defendant Bauer was in the act of passing, then you are instructed that under the law the plaintiff is not entitled to recover and your verdict will be in favor of the defendant * * *." (Our italics.)
Plaintiff-appellant, citing Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892, contends that Instruction No. 3, purporting to be a sole cause instruction, is erroneous in that it fails to negative defendant's negligence, as alleged and submitted by plaintiff, either by hypothesizing facts which exclude or negative such negligence, or by requiring the jury to find the negative of defendant's negligence "as submitted in plaintiff's principal instruction."
Defendant-respondent contends Instruction No. 3 was not erroneous or, if the instruction, as a sole cause instruction, were considered technically erroneous, it could not have been prejudicial to plaintiff because the facts hypothesized in Instruction No. 3, if found to be true, would necessarily preclude a finding for plaintiff upon the theory of plaintiff's case as pleaded and substantiated by her own evidence. Defendant-respondent cites and relies upon the case of Silver v. Westlake, Mo.Sup., 248 S.W.2d 628.
The contentions of the parties, plaintiff-appellant and defendant-respondent, require our review of the evidence supporting the theories of plaintiff's case and of defendant's defense.
Plaintiff introduced evidence tending to show that she was riding in a 1938 Ford V-8 northwardly on Vandeventer near McRee in St. Louis. The automobile was being driven by her husband. The husband testified there were cars parked along the cast side of Vandeventer; and that, in driving northwardly, he was "staying close to the parked cars," and there was room for vehicular passage northwardly on his left and east of the center of Vandeventer. The "first thing I knew there was something struck the left back fender on the car." Plaintiff's husband had been moving the Ford twenty-eight to thirty miles per hour and, when his Ford was struck by defendant's truck, the speed of the Ford was thereby accelerated to "forty or better." The back fender of the Ford was "folded up some and split in a couple of places and bent in."
Defendant testified that, driving his Chevrolet "pickup" truck twenty-five miles per hour, he came up behind the Ford automobile in which plaintiff was riding. The Ford was moving "pretty well in the middle of the street." Defendant moved his truck into the lane to the left of the Ford, and, starting to pick up speed, moved to pass by. The Ford was then moving about twenty miles per hour, and was next to the lane of parked cars. Defendant sounded his horn, and plaintiff's husband "started moving over towards the left or center of the street." Defendant said that if plaintiff's husband "had stayed where he was" defendant would "have had room to have gone between the left side of the Ford and the center line." Defendant "was about up to his (the husband's car) door on the side of him and he started to turn over to the left * * *. He did come over pretty suddenly. * * * I wouldn't say very (suddenly), but he gradually worked over that I didn't have room to go by, which I intended to do." Defendant "let up on the gas and dropped back," because there was another automobile approaching from the north. "As I was dropping back the bumper — the right front corner of my bumper — hooked the rear fender of his car."
The plaintiff alleged, and introduced evidence tending to show, that defendant drove his truck into the rear of the Ford automobile in which plaintiff was riding; and defendant introduced evidence tending to show that the contact between the vehicles occurred when defendant was attempting to pass the Ford. However, plaintiff apparently adopted and hypothesized the fact which was supported by defendant's evidence, that is, that the collision occurred when defendant was attempting to pass the automobile in which plaintiff was riding; and, in submitting the plaintiff's case and in submitting defendant's sole cause defense, the situation giving rise to plaintiff's claim is recognized as one in which defendant was attempting to drive his truck around the Ford. It has been noted that, in plaintiff's principal Instruction No. 1, it was hypothesized that defendant, while operating his truck on Vandeventer, attempted to "pass to the left" of the automobile in which plaintiff was riding; and it will also be noted that defendant's Instruction No. 3 hypothesized that plaintiff's husband turned to his left "as the defendant was in the act of passing."
Regardless of the facts of the positions of the respective vehicles upon the street prior to and when the collision occurred, the facts hypothesized in defendant's Instruction No. 3, relating to the positions of the respective vehicles and their movements, were not irreconcilable with the facts hypothesized, relating to the positions of the respective vehicles and their movements, in plaintiff's Instruction No. 1 in affording a basic foundation for the further finding that defendant was guilty of negligence in failing to have his truck under control. Consequently we are of the opinion that, in determining the contention that Instruction No. 3 was erroneous, the case of Silver v. Westlake, supra, is not applicable to the submitted facts in the instant case. Nevertheless, we believe the Instruction No. 3 was not erroneous or misleading in the instant (guest) primary negligence case as a submission of defendant's sole cause defense.
The facts hypothesized in Instruction No. 3 were supported by defendant's evidence; and, if such evidence were found to be true, such facts were sufficient to support the finding that the conduct of plaintiff's husband in turning to his left was a cause of the collision. And if the jury found, as the jury probably did and had a right to do, that, in the hypothesized circumstances, defendant was not negligent as submitted in Instruction No. 1, defendant could have been guilty of no wrong which was a concurring cause of the collision.
It is true Instruction No. 3 does not specifically hypothesize facts which negative the negligence of defendant as submitted in Instruction No. 1, that is, the negative of the submitted specific negligence of defendant in failing "to operate the said automobile truck in such a manner that it could be readily and reasonably stopped"; and it is true that the facts as hypothesized in Instruction No. 3 do not necessarily exclude a finding that defendant was negligent as submitted in Instruction No. 1; and it is also true Instruction No. 3 does not require the jury to find that defendant was not negligent "as submitted in plaintiff's principal instruction," or that the collision was not due to the negligence of defendant "as submitted in plaintiff's principal instruction." But the instruction does not require the finding that the collision resulted solely from the submitted conduct of plaintiff's husband in turning to the left, and of "no negligence" of defendant; that is, the jury was required to find "defendant was at all times exercising the highest degree of care and was not guilty of any negligence," necessarily including the negligence of defendant as hypothesized in plaintiff's Instruction No. 1. Since Instruction No. 3 did not specifically negative the primary negligence of defendant as submitted in Instruction No. 1 (either by hypothesized facts or by reference to Instruction No. 1), the jury was required to find that no act or omission of defendant in operating his automobile truck (including the failure to have his automobile truck under control as submitted by plaintiff in Instruction No. 1) was negligent. This was more favorable to plaintiff and more onerous upon defendant than the issues demanded, because the only submitted issue of specific negligence of defendant was failure to have his automobile truck under control. But of this plaintiff-appellant has no reason to complain.
Parenthetically, we believe plaintiff's Instruction No. 1 is subject to the possible criticism that it does not clearly submit specific negligence of defendant as the proximate cause of plaintiff's injury, and permits plaintiff's recovery upon general negligence of defendant. Instruction No. 1 is different from Instruction No. 1 given in Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, 916. In the Jones case the instruction hypothesized that plaintiff was driving on the right-hand side of the pavement, and that the defendant negligently allowed and permitted his transport truck "to run into, strike and into collision" with the rear end of plaintiff's vehicle. The jury could well understand this was a submission that defendant was so careless in guiding his truck that he drove it against the rear end of plaintiff's vehicle; and the finding of causal connection between such specific negligence and plaintiff's injury was also required. In the instant case, if plaintiff's Instruction No. 1 submitted general negligence only, the error, if so, in defendant's Instruction No. 3 in submitting a general finding of no negligence of defendant was invited by plaintiff. However, in the instant case, in view of the contentions of the parties, we have assumed Instruction No. 1 submitted that defendant operated his automobile truck "in such a manner that it could be readily and reasonably stopped upon the appearance of danger" as specific negligence and the proximate cause of the collision.
In examining the contention of error in Instruction No. 3, we have kept in mind that the instant case is a primary negligence case; but, since the case of Bootee v. Kansas City Public Service Co., supra, is cited and relied upon by plaintiff-appellant, we must further observe and endeavor to restate and exemplify a reason for a more specific and clear negation of defendant's negligence in the submission of a sole cause defense in a humanitarian negligence case, or in a case wherein both humanitarian and primary negligence are submitted. See Rembusch v. Prebe, 358 Mo. 409, 215 S.W.2d 433. In a case in which negligence of defendant under the humanitarian rule is submitted, and in a case in which defendant's negligence under the humanitarian rule and defendant's primary negligence are submitted, care should be taken, in drafting an instruction submitting a sole cause defense, to examine the facts supported by the evidence introduced in the particular case and to make sure the jury may not be misled and permitted to absolve defendant from responsibility under the humanitarian rule because of plaintiff's antecedent or contributory negligence. Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743; Rembusch v. Prebe, supra; Jants v. St. Louis Public Service Co., 356 Mo. 985, 204 S.W.2d 698; Bootee v. Kansas City Public Service Co., supra; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 792; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7, and cases therein cited.
Bootee v. Kansas City Public Service Co., supra, is a perfect case in exemplifying the reason for specifically negativing defendant's negligence in a humanitarian case. The Bootee case involved defendant's sole cause defense to a plaintiff's case submitted under the humanitarian rule, and Instruction No. 2, given in that case, was held erroneous, 183 S.W.2d at pages 895-897, in submitting sole cause.
The hypothesis of facts in Instruction No. 2, given in the Bootee case, brought the approaching plaintiff to a point approximately six feet from the pathway of defendant's bus, and submitted that plaintiff was not exercising ordinary care at the time. Assuming, as the instruction submits, that plaintiff was negligent in approaching the pathway of defendant's bus, nevertheless, some time, in his approach, plaintiff came into a position of imminent peril and the humanitarian rule seized upon the situation. It is elementary that contributory negligence has no place in the submission of negligence under the humanitarian rule. Obviously, a plaintiff's negligent conduct prior to the time when the humanitarian rule seized upon a situation may not, under the guise of sole cause, defeat plaintiff's recovery if defendant thereafter negligently failed to act in averting a tragedy. Now the real issue in the case was whether plaintiff's imminent peril was observed or observable in time for defendant's bus driver to have acted in averting plaintiff's injury. Otherwise stated and tied to the facts, the real issue was whether defendant's bus driver saw or, by the exercise of the highest degree of care in the circumstances of the rainy, stormy night, could have seen plaintiff was in imminent peril in time to have acted in averting the casualty; and Instruction No. 2 did not in any way clearly submit the negative upon this very issue. More broadly stated, the instruction did not in any way specifically submit the negative of defendant's humanitarian negligence. It neither hypothesized facts in legal effect showing there could have been no humanitarian negligence on the part of defendant, nor submitted the negative of humanitarian negligence by reference to plaintiff's principal instruction. Had Instruction No. 2 been so drafted as to include either method of negativing defendant's humanitarian negligence, the instruction, no doubt, would have not been held erroneous.
The judgment should be affirmed.
It is so ordered.
LOZIER and COIL, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur.