Opinion
March 29, 1929.
1. NEGLIGENCE: Instruction: Limited to Collision: Duty to Warn. Where plaintiff, if he had been warned by the approaching truck, could, with a clearance of three or four feet between the truck and his crippled automobile, have stepped behind his car or into some other place of safety, and the driver of the truck saw him at work in plain view and could have given timely warning, the instruction should not restrict the driver's duty to an avoidance of a collision, but should include the duty to warn.
2. ____: ____: Congested Street. The instruction should submit to the jury the question whether it was the duty of the driver, in entering a congested street, to stop as he approached a crippled automobile which the plaintiff, in full view, was endeavoring to repair.
3. ____: ____: Highest Degree of Care: Conjecture. An instruction requiring the jury to find that the driver of the truck exercised the highest degree of care to avoid a collision does not include his duty to warn or to stop where neither of those duties is otherwise referred to. If they understand the direction to cover all his duties, it invites them to enter a field of speculation and conjecture.
4. ____: Truck: Congested Street: Insufficient Instruction: Limited to Collision: No Warning: Highest Degree of Care. Plaintiff was driving his automobile east, and 200 feet east of an intersecting street the rear left tire became punctured. He pulled to the south curb to change tires, and while he was changing the tires, defendants' truck was moving east towards the intersecting street, and the driver testified that he saw plaintiff at this work and blew the truck whistle as he approached the intersecting street, and that he blew it again as the truck crossed the street. No warning of the approach of the truck was thereafter given, although plaintiff continued at work on his car in full view of the driver, who further testified that, just after passing across the intersecting street, the truck was moving east about six or eight feet from the south curb until it reached a point eighty feet west of plaintiff; that he then moved the truck to the left until it was moving, when straightened out, ten or twelve feet from the south curb; that the truck was then moving directly east, and as it passed plaintiff's car there would have been a clearance of three or four feet between the truck and the car; that when he reached a point about four feet west of plaintiff, an oil truck moving east suddenly appeared on his left and attempted to pass him; and that in doing so the oil truck suddenly swerved in front of defendant's truck, and, in passing, the hub of the oil truck's right wheel locked with the hub of the left wheel of defendants' truck, and dragged defendants' truck until it struck plaintiff, injuring him. Just prior to the injury and while the two trucks were moving east near plaintiff, a Ford truck was moving west on the north side of the street and passed the trucks almost opposite plaintiff's car. Cars were parked on both sides of the forty-foot street, and they and the three trucks congested traffic. The court instructed the jury that if the driver of defendants' truck in driving the truck eastwardly "was exercising the highest degree of care, and that as he was passing the plaintiff the left wheel of defendants' truck was struck by another automobile so as to cause it to swerve suddenly and sharply to the right or south and into and against plaintiff, and that, but for being so struck, defendants' automobile would not have come in contact with plaintiff, and that after defendants' truck was so struck the driver could not, in the exercise of the highest degree of care, avoid striking plaintiff, your verdict must be for defendants." Held, that the instruction ignored the duties of the driver to warn, and if necessary, in view of the congested traffic, to stop; nor did the words requiring the jury to find that the driver was exercising the highest degree of care cure the omission.
5. EVIDENCE: Res Gestae: Words of Another: Spontaneity: Self-Serving. Testimony by the driver, of defendants' truck that, after the truck was struck by an oil truck and driven against plaintiff, the oil truck stopped at the next intersecting street and he called to its driver to come and assist him in carrying plaintiff to the hospital across the street and when he came, he asked the driver, "What is the matter; couldn't you see where you were driving?" and that he answered, "I never hit you," is lacking in spontaneity, is self-serving, and is not a part of the res gestae.
Corpus Juris-Cyc. References: Evidence, 22 C.J., Section 195, p. 229, n. 54. Trial, 38 Cyc., p. 1632, n. 10.
Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.
REVERSED AND REMANDED.
Benjamin Wolf and John P. Griffin for appellant.
(1) The plaintiff was in the street working at his car when struck by the defendants' truck. He submitted his case to the jury on the humanitarian doctrine, and the court erroneously gave, at the request of the defendant, Instruction 6, which countered that doctrine and told the jury "that after the defendants' truck was so struck, if you so find, the said Edward Gruenewald could not, in the exercise of the highest degree of care, avoid striking the plaintiff, then your verdict must be for the defendant." In other words, defendants did not have to do anything to avoid injuring the plaintiff, although they saw him in the street in close proximity to their truck until after the other truck hit theirs even though they knew, or should have known, that it was about or liable to collide with theirs. This court has held such an instruction to constitute reversible error. Burke v. Pappas, 293 S.W. 146; Goodwin v. Eugas, 290 Mo. 673; Abramowitz v. Railroad, 214 S.W. 119; Vaille v. Lutz, 269 S.W. (Mo. App.) 947; Charr v. McLoon, 304 Mo. 238. (a) If there was a collision between the defendants' truck and the other truck it was the duty of the defendant to see the other truck and anticipate the injury to the plaintiff before the alleged collision took place and thus avoid the alleged collision with the other truck and the injury to the plaintiff. The defendants' driver was charged with the duty to look to the sides as well as ahead and observe traffic conditions and see what he should have seen, and this failure was the direct cause of the injury to the plaintiff. Hornbuckle v. McCarty, 295 Mo. 162; Myers v. Kennedy, 306 Mo. 268. (b) This instruction conflicts with the principal instruction given for the plaintiff in that the instruction for the plaintiff tells the jury that it was the duty of the defendant to do certain things to avoid hitting the plaintiff, and this instruction tells the jury that it was not until after the alleged collision. Bussey v. Don, 259 S.W. 792. (2) It was reversible error to exclude the plaintiff's evidence in rebuttal showing that defendants' driver failed to give a signal, and the position of the truck, its speed, and the entire surroundings, so that the jury could determine whether the alleged collision occurred, and if so, where, and finally determine the most important question in the case, namely, whether the defendants' driver could have avoided hitting and injuring the plaintiff. Wellman v. Railroad, 183 Mo. App. 642; Kalver v. Railroad, 166 Mo. App. 198; Parris v. Railroad, 227 S.W. (Mo. App.) 1071; Dean v. Wabash Railroad, 220 Mo. 425. (3) It was error to admit the voluntary statement of the defendants' driver — made to the driver of the truck with which he had the alleged collision after the accident happened, and after the defendants' driver had ample time for deliberation. This was not a part of the res gestae. Redmon v. Railroad, 185 Mo. 1; Koenig v. Union Depot Co., 173 Mo. 698; Laudau v. Travelers' Ins. Co., 267 S.W. 377. Bryan, Williams Cave for respondents.
(1) The instruction, when read as a whole, at the outset, in most specific terms, requires the jury to find that the defendants' driver, at the time of the accident, was driving his truck eastwardly and that, in so doing, "he was exercising the highest degree of care and that, as he was passing the plaintiff, the left front wheel of defendants' automobile was struck by another automobile so as to cause the defendants' automobile to swerve suddenly and sharply and sharply to the right." The instruction, by these words, requires the jury to find that the defendants' driver was exercising the highest degree of care and requires them to find that he was passing the plaintiff, and then the instruction goes further and requires the jury to find that but for being so struck by the other automobile, "the defendants' automobile would not have come in contact with the plaintiff," and then the instruction further requires the jury to find that after the defendants' automobile was so struck by the other automobile it was impossible, in the exercise of the highest degree of care, to avoid striking plaintiff. (2) What plaintiff sought to show in rebuttal he should have shown in sustaining his case in chief, on the issue as to how the accident happened. Jackson v. Railway Co., 118 Mo. 199; Feary v. Met. St. Ry. Co., 162 Mo. 75. This evidence offered by way of rebuttal was but cumulative of what was or what should have been offered in the plaintiff's case in chief. (3) Appellant complains of the admission in evidence of certain statements of defendants' driver as a part of the res gestae. These statements were made immediately after the accident, as the defendants' driver stopped his machine, jumped to the ground and while plaintiff was still lying in the street, and they were made as part of an effort by the defendants' driver to get someone to help him carry the plaintiff to the hospital and in that effort defendants' driver called to the driver of the gasoline truck. Then the two of them, probably assisted by a third party, carried the plaintiff to the hospital. The question of the defendants' driver and the answer of the driver of the gasoline truck were clearly a part of the res gestae. Chawkley v. Wabash, 297 S.W. 20; Woods v. Bridge Term. Ry. Co., 8 S.W.2d 922; Rosenweig v. Wells, 308 Mo. 617.
This is a suit for damages for personal injuries in the sum of $15,000. The petition contains many charges of negligence, but the case was submitted to the jury on instructions covering the humanitarian doctrine and the measure of damages. The answer was a general denial. Judgment was for defendants, and plaintiff appealed.
The facts are as follows: On June 21, 1924, plaintiff was driving his automobile east on Lawton Avenue, in the city of St. Louis, and when about 200 feet east of Garrison, an intersecting Avenue, the left rear tire on his car became punctured, and he pulled to the south curb to change the tire. Lawton Avenue is about forty feet wide, and at the time and place mentioned cars were parked on the north and south sides of the street. While plaintiff was changing the tire, defendants' truck was moving east on Lawton Avenue toward Garrison. The driver testified he saw plaintiff at work on his car and blew the whistle of the truck as he (the driver) approached Garrison Avenue. He testified he again blew the whistle as the truck passed over Garrison Avenue. Thereafter no warning was given of the approach of the truck, although plaintiff continued at work on his car in full view of the driver until the truck struck him. The driver further testified that just after passing over Garrison Avenue the truck was moving east about six or eight feet from the south curb until it reached a point about eighty feet west of plaintiff; that he then turned the truck to the left until it was moving, when straightened out, about ten or twelve feet from the south curb; that at this distance from the curb, the truck moving directly east would give plaintiff a clearance of three or four feet between the south side of the truck and the north side of plaintiff's car as the truck passed the car; that as he moved the truck directly east and when he reached a point about four feet west of the plaintiff an oil truck suddenly appeared on his left and proceeded to pass him; that in doing so the oil truck suddenly swerved in front of defendants' truck and, in passing, the hub of the oil truck's right wheel locked with the hub of defendants' left front truck wheel, and defendants' truck was dragged until it struck plaintiff, injuring him. Just prior to the injury and while the trucks were moving east near plaintiff, a Ford truck was traveling west on the north side of the street and passed the trucks at a point opposite or almost opposite plaintiff's car.
Plaintiff's evidence tended to show there was no collision between the trucks, and that defendants' truck was driven against him without warning.
The court, at the request of the defendants, instructed the jury, as follows:
"The court instructs the jury that if you find and believe from the evidence that Edward Gruenewald was at the time of the accident mentioned in the evidence driving the truck of the defendants Bernhard and Behan eastwardly along Lawton boulevard and that in so doing he was exercising the highest degree of care and that as he was passing the plaintiff, the left front wheel of the defendants' automobile was struck by another automobile so as to cause the defendants' automobile to swerve suddenly and sharply to the right or south and into and against plaintiff, and if you further find that, but for being so struck, if you so find, defendants' automobile would not have come in contact with the plaintiff, and that after the defendants' truck was so struck, if you so find, the said Edward Gruenewald could not in the exercise of the highest degree of care avoid striking the plaintiff, then your verdict must be for the defendant. (Italics ours.)
I. Plaintiff challenges the instruction as ignoring the duties of the driver to warn and, if necessary, to stop in view of the congested traffic. Defendants, realizing the Insufficient situation as "ticklish," seek to excuse the Instruction: instruction by an alleged admission of defendants, Omitting during the trial, of a collision with plaintiff and Elements of liability therefor, unless the truck of the of Duty. defendants was struck by the truck of another, thereby causing defendants' truck to collide with plaintiff.
The record discloses no such admission. However, the plaintiff, though denying the collision of the trucks, insists that, even so, there was evidence of a failure to warn, which, if given, would have afforded plaintiff an opportunity to change his position from one of peril to one of safety before the collision of the trucks.
Plaintiff further insists there was evidence of such a condition of traffic as to make it the duty of the driver to stop the truck on nearing him.
There was substantial evidence tending to show that it was the duty of the driver to warn the plaintiff and to stop the truck on nearing plaintiff. By plaintiff's instruction these issues were submitted to the jury. The instruction under review leads the jury to consider the case as if plaintiff was in a fixed position. In effect they were instructed that if they believed defendants' truck might have slipped by the plaintiff without injuring him but for the collision with the other truck, the verdict should be for the defendants.
If plaintiff had been warned of the approach of defendants' truck, he could, with a clearance of only three or four feet, have stepped behind his car or moved to another place of safety.
In addition, there was evidence tending to show that cars were parked on both sides of the street, and that defendants' truck, the oil truck and the Ford car congested traffic — all of which created a condition from which the jury might find that it was the duty of the driver to stop defendants' truck on nearing plaintiff.
The defendants admit the necessity of submitting these issues to the jury by contending they were submitted by that part of the instruction which required the jury to find that while driving the truck the driver was exercising the highest degree of care. This was misleading, for the jury may have thought the direction was limited to the control of the movement of the car. But if they understood the direction to cover all of the duties of the driver, it invited them to enter a field of conjecture and speculation. It would hardly be contended the court had performed its duty by directing the jury to return a verdict for the defendants if they found from the evidence the driver in driving the car exercised the highest degree of care.
The issue of a collision of the trucks is featured, and the issues of a failure to warn and stop are ignored — all to the disadvantage of plaintiff. The instruction is not only erroneous but prejudicial.
II. Plaintiff challenges the instruction on the burden of proof. This and similar instructions have been criticized by this court and the courts of appeals. No doubt all ground Burden for criticism will be eliminated on a retrial of the of Proof. case.
III. The driver of defendants' truck testified that after plaintiff's injury the oil truck was stopped near Ewing Avenue, the next intersecting street; that he called the driver of the oil truck to come and assist him in carrying plaintiff to the hospital across the street; that he did come to his Res Gestae. assistance, and when he did so the driver of defendants' truck inquired, "What is the matter, couldn't you see where you was driving?" He answered: "I never hit you."
This inquiry and answer were admitted as a part of the res gestae over the objection of plaintiff. We do not think they were a part of the res gestae. They were self-serving, lacking in spontaneity and do not exclude the idea of premeditation.
Defendants suggest that a consideration of the whole record indicates the error was not prejudicial. It will not be necessary to rule this question.
IV. The other assignments of error are without merit and are ruled against the plaintiff.
For the error noted in the instruction, the judgment is reversed and the cause remanded. All concur.