Opinion
No. 28055.
January 16, 1951.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY FRED E. MUELLER, J.
Willson Cunningham McClellan, J. H. Cunningham, Jr., Richard D. Gunn, St. Louis, for appellants.
Gragg Aubuchon, Michael J. Aubuchon, O. P. Owen, St. Louis, for respondent.
This is an action for damages for personal injuries brought by plaintiff, Blair Brooks, an infant, by Victor Brooks, his father and natural guardian, against Elmer LeBaube and Arthur LeBaube, individuals doing business as Sparky's Taxi, and their employee, Conrad E. Bernard, as defendants. A trial in the circuit court of the City of St. Louis resulted in a verdict for defendants. Thereafter, plaintiff's motion for new trial was sustained on the ground that the court had erred in giving and reading to the jury defendants' Instruction No. 5, hereinafter set out. From the order sustaining said motion, the defendants have appealed.
It appears from the evidence that during the evening of July 25, 1948, plaintiff, a young man nineteen years of age, accompanied by a young woman, attended a picnic in Lemay, St. Louis County. On the occasion in question he drove an automobile which belonged to his father. Plaintiff and his companion left the picnic grounds about 11:30 p. m., and while driving north over Avenue "H" the engine of the automobile failed. Thereafter, another motorist pushed plaintiff's car to Bayless Road. Bayless Road runs east and west. When plaintiff's car reached Bayless Road plaintiff turned it left into Bayless Road and the car rolled westwardly down a hill. Finding that the engine of the car still would not start, plaintiff steered his car onto the shoulder on the right side of the road when he reached the bottom of the hill, and parked on a driveway leading into a gasoline filling station located on the north side of the road. The driveway of the filling station was on the same level as the road. Plaintiff's car came to a stop six or seven feet off the concrete slab of the road. The time was about 1:15 a. m. on Monday, July 26th.
At about 1:30 a. m. the young woman accompanying plaintiff was kneeling on the seat of the car looking east through the rear window for traffic on Bayless Road. Presently, she observed a car weaving down the road. The evidence shows this car was being driven by Joseph Bering. The Bering car collided with the rear of plaintiff's car, rebounded to the highway, and came to a stop astride the westbound lane of Bayless Road, straddling it from the center line to the north edge. No one was injured as a result of this collision. Thereafter, plaintiff got out of his car, walked to the left side of the Bering car and engaged Bering in conversation. While plaintiff and Bering were thus engaged, a taxi cab, owned by defendants Elmer LeBaube and Arthur LeBaube, and operated by defendant Conrad E. Bernard, turned left from Avenue "H" into Bayless Road, proceeded westwardly down the hill, and collided with the Bering car. As a result of the impact between the Bering car and the taxi cab, the latter was pushed westwardly and against the plaintiff, causing plaintiff to fall to the pavement and to sustain serious and painful injuries.
There were no street lights at the place where these two collisions occurred. The filling station in front of which plaintiff parked was closed at the time. Plaintiff testified that one of the headlights and the taillight on the Bering car were burning after the first collision. Bering gave like testimony. Betty Berndt, the young woman who was with plaintiff at the time, testified that headlights on the Bering car were not burning after the first collision, but that the taillights were lit.
It had been raining for some time prior to the accident and the streets were wet. Plaintiff testified that at the time of the accident there was a slight drizzle of rain. Leo Smith, a witness for plaintiff, testified that it was raining "pretty heavy" at the time. Bering gave similar testimony.
Avenue "H" connects with Bayless Road about two hundred feet east of the point where the accident occurred. One of the witnesses said the distance was about the length of a city block. The width of the concrete slab on Bayless Road is twenty feet.
Plaintiff testified that he saw the headlights of the defendants' car as it came over the hill, but thereafter paid no further attention to them. Betty Berndt also saw the headlights of the taxi cab near the top of the hill and observed the car for a time, but did not continue to watch as it came on down the hill. She stated she did not know if the driver of the taxi cab made any effort to stop prior to hitting the Bering car.
Plaintiff's witness, Albert Smith, testified that the taxi cab was traveling about twenty-five miles an hour when he first saw it about two hundred feet east of the point where it collided with the Bering car, and that he could not say its speed was thereafter slackened. He stated that the taxi cab was not swerved in either direction, and that he heard no horn. He stated the taxi cab was going twenty to thirty miles per hour at the time of the crash. There was testimony that there was room for defendants' taxi cab to pass the Bering car by turning either to the right or left.
Conrad E. Bernard testified that he turned his taxi cab left from Avenue "H" into Bayless Road and proceeded west-wardly down the hill at a rate of speed of about twenty miles per hour. He further testified: "All at once this car was right in front of me. I didn't see it until I got about five feet away, and I run into it. I put my brakes on but I couldn't stop. * * * I tried to swerve, but there wasn't room to swerve much at all, because I was right on top of it when I saw it * * * never seen no lights on it." The witness stated that his car hit the Bering car at the door on the right side. Bernard further testified that as he came down the hill he wiped steam off his windshield, and that he could not have been going over twenty to twenty-five miles per hour; that he was forty or fifty feet from the Bering car when he first saw it; that he tried to swerve, and did swerve about two feet. He stated that at the time of impact his car was traveling about ten miles per hour. He further stated that when he first saw the Bering car he applied the brakes on his car.
By Instruction No. 1 plaintiff submitted the case to the jury under the so-called humanitarian doctrine. For defendants, the court gave Instruction No. 5. Said instruction is as follows: "You are instructed that if you find and believe from the evidence that such injuries, if any, as plaintiff received on the occasion in question, were the result of the negligence of Joseph Bering (who is not a party to this lawsuit), and not the result of any negligence on the part of Conrad Bernard, the driver of the taxi cab, then plaintiff is not entitled to recover in this suit and your verdict must be in favor of the defendants, Conrad E. Bernard and Elmer and Arthur LeBaube, doing business as Sparky's Taxi."
The record shows that plaintiff did not object to the giving of Instruction No. 5 prior to the submission of the case to the jury. However, the giving of this instruction was assigned as error in plaintiff's motion for new trial.
Appellants assign as error the action of the trial court in sustaining plaintiff's motion for new trial. In support of this contention it is urged that since plaintiff failed to object to the giving of defendants' Instruction No. 5, the trial court was without power to award a new trial on account of any error in said instruction.
There is no merit to the point made. The law is well settled that a trial court may, on motion of the losing party, grant a new trial for any error in instructions given, even though the record fails to show an objection at the trial by said party to the giving of said instruction, where the error is called to the attention of the trial court in the motion for new trial. De Maire v. Thompson, 359 Mo. 457, 222 S.W.2d 93; Sakowski v. Baird, 334 Mo. 951, 69 S.W.2d 649; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482; Beaber v. Kurn, 231 Mo.App. 22, 91 S.W.2d 70; McCombs v. Bowen, 228 Mo.App. 754, 73 S.W.2d 300; Noren v. American School of Osteopathy, 223 Mo.App. 278, 2 S.W.2d 215.
While the jury is authorized by Instruction No. 5 to find that the plaintiff's injuries were the result of the negligence of Bering and not the result of any negligence upon the part of Conrad Bernard, no facts are hypothesized upon which the jury could base such a finding. Such a method of instructing the jury has been condemned time and again by our Supreme Court. Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54; Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158. 159 S.W.2d 254; Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7.
Not only must instructions submit facts, but in a case submitted on the humanitarian doctrine, such as was the case at bar, a "sole cause" instruction must hypothesize facts which disprove one or more of the basic facts of plaintiff's humanitarian submission. Janssens v. Thompson, Mo.Sup., 228 S.W.2d 743; Pearson v. Kansas City Ice Company, Mo. Sup., 234 S.W.2d 783; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892.
Tested by the rules announced in the above cited cases, defendants' Instruction No. 5 was clearly erroneous and prejudicial. Furthermore, contrary to the contention of respondent, the missing elements in defendants' Instruction No. 5 were not supplied by instructions hypothesizing plaintiff's case. A similar contention was made and expressly denied in Pearson v. Kansas City Ice Co., supra. We are bound by that ruling.
The trial court properly sustained plaintiff's motion for a new trial. The order appealed from is affirmed.
McCULLEN and BENNICK, JJ., concur.