Opinion
December 23, 1936.
1. NEGLIGENCE: Defendant's Contributing Cause. Sole Proximate Cause. Plaintiff suing for injuries resulting from negligence, before he is entitled to a judgment, must produce evidence that defendant was guilty of negligence and that such negligence directly contributed to the injury for which he sues.
Plaintiff cannot recover upon any negligence not pleaded by him.
It is not necessary that negligence of one defendant be the sole proximate cause of the injury; if the concurrent negligence of two persons causes an injury to a third, both are liable.
2. NEGLIGENCE: Failure to Warn. Where a truck was turned left into an intersecting street and an automobile coming from the opposite direction collided with the truck and drove it upon plaintiff who was walking across the intersecting street upon the pedestrian walk, whether the truck driver failed to use the highest deree of care in not sounding a horn in time to warn plaintiff of the close proximity of the car was for the jury.
3. NEGLIGENCE: Trials: Excessive Speed. Where a truck was turned left into an intersecting street and an automobile coming from the opposite direction struck the truck, driving it upon plaintiff who on foot was crossing the intersecting street, the evidence failed to sustain a charge of negligence of excessive speed by the truck driver, and the court erred in submitting that issue to the jury.
4. NEGLIGENCE: Trials: Place of Driving. Where a truck was turned left into in intersecting street and an automobile coming from the opposite direction struck the truck, driving it upon plaintiff, a pedestrian who was crossing the intersecting street, the charge of negligence in that the truck driver did not drive as nearly as practicable in the center of the street from which he turned should have been withdrawn from the jury, since whether that was the proper place for him to drive had nothing to do with the collision.
5. NEGLIGENCE: City Ordinance: Left Turn. A signal of intention to turn a motor vehicle right or left is intended to warn persons approaching from the rear.
Where a truck was turned left into an intersecting street and an automobile coming from the opposite direction struck the truck, driving it upon plaintiff who was on foot crossing the intersecting street, the introduction of an ordinance requiring an arm signal by a driver of his intention to make a left turn, where the only instruction asked by plaintiff was on the measure of damages, under the circumstances, was error; when the petition charged only a violation of the ordinance and not common-law negligence, defendant's instruction withdrawing that assignment should have been given.
6. NEGLIGENCE: City Ordinance. An ordinance requiring a left turn to be made to the right center of an intersecting street should not be construed so as to be absurd.
Though it would be impracticable to make traffic go to the right of the mathematical center to make a left turn in the center of the street where the intersecting streets did not meet at right angles, nevertheless where a truck made a left turn into an intersecting street and was struck by an automobile coming from the opposite direction and driven against plaintiff, injuring him, the evidence was sufficient to support a charge of negligence in that the driver of the truck, in making the turn, cut the corner.
7. TRIALS: Failure to Instruct. Where plaintiff in his petition assigns several acts of negligence as grounds for recovery and asks no instruction except on the measure of damages, and where no instruction was given for defendant except upon the burden of proof and definition of ordinary care, and no instructions were given defining the issues, the case was submitted to the jury on all the charges of negligence alleged in the petition, and the court erred in refusing withdrawal instructions asked by defendant as to such charges of negligence where the proof showed no causal connection between them and the injury.
Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.
REVERSED AND REMANDED.
Theodore Rassieur, Thomas Bond and David H. Robertson for appellants.
(1) All of the testimony inconsistent with the fact that Van Leuven's automobile was struck by Saner's car and caused to swing to the south and west and strike Felber was contrary to the physical facts, incredible and not evidence. 1 Moore on Facts, pp. 11-12, 193-194; Payne v. Railroad Co., 136 Mo. 579; Gurley v. Railroad Co., 104 Mo. 211; State v. Dettmer, 124 Mo. 426; Kelsey v. Railroad Co., 129 Mo. 362; Huggart v. Railroad Co., 134 Mo. 673; State v. Gurley, 170 Mo. 432; Pelty v. Railroad Co., 179 Mo. 678; Stafford v. Adams, 113 Mo. App. 721; Phippen v. Ry. Co., 196 Mo. 24; Artz v. Railroad Co., 34 Iowa 159; Marland v. Railroad Co., 16 A. 623; Myers v. Railroad Co., 24 A. 747; State v. Anderson, 89 Mo. 332; State v. Bryant, 102 Mo. 24; State v. Turlington, 102 Mo. 642; State v. Nelson, 118 Mo. 124; State v. Brown, 119 Mo. 527; Hayden v. Railroad Co., 124 Mo. 572. (a) The judgment in favor of Saner is not conclusive of any fact or issue involved in this action between respondent and appellants. Felber had the right to sue appellants and Saner separately, and the conditions were the same as if he had done so. Sec. 703, R.S. 1929; Hutchinson v. Safety Gate Co., 247 Mo. 111; Shaffer v. Railroad Co., 300 Mo. 507; Neal v. Curtis Mfg. Co., 41 S.W.2d 556; Owensboro v. Westinghouse Co., 196 F. 388. Therefore, the judgment in favor of Saner is not res judicata in any respect between Felber and appellants. O'Rourke v. Lindell Ry. Co., 142 Mo. 342; Maher v. Donk Bros. Co., 20 S.W.2d 894; Brickell v. Fleming, 281 S.W. 953; Leighton v. Davis, 260 S.W. 986; Neal v. Curtis Mfg. Co., 328 Mo. 412. Also appellants are not concluded from showing that they are not liable because Saner's acts were the intervening proximate cause of the collision. De Moss v. K.C. Rys. Co., 296 Mo. 526; Daneschocky v. Sieble, 195 Mo. App. 476; Borack v. Mosler Safe Co., 231 S.W. 623. (b) Respondent could not recover upon any negligence not pleaded by him. Gandy v. Ry. Co., 44 S.W.2d 638; Kitchen v. Schleuter Mfg. Co., 323 Mo. 1179; State ex rel. Central, etc., Co. v. Ellison, 270 Mo. 645; Talbert v. Ry. Co., 314 Mo. 352; Kuhlman v. Water Co., 307 Mo. 607; Degonia v. Ry. Co., 224 Mo. 564; Gilliland v. Bondurant, 59 S.W.2d 686; McGrath v. St. Louis Transit Co., 197 Mo. 97. (c) Even though any act of negligence charged in respondent's petition were proven, there could be no recovery because thereof unless also such act were proven to be the proximate cause of the collision and respondent's ensuing injury, respecting which the burden of proof was upon respondent. De Moss v. K.C. Rys. Co., 296 Mo. 534; Borack v. Mosler Safe Co., 231 S.W. 624; Daneschocky v. Sieble, 195 Mo. App. 476; Eaton v. Wallace, 287 S.W. 614; Krelitz v. Calcaterra, 33 S.W.2d 911; Battles v. Rys. Co., 178 Mo. App. 615. (d) Van Leuven's failure to sound a horn or give any warning of his approach was not the proximate cause of the collision and Felber's consequent injury. Felber was not in danger of being run down and needed no warning. Saner saw Van Leuven's car at all times, so that no warning was necessary. Wren v. Suburban Motor Co., 241 S.W. 469; Lumb v. Forney, 190 S.W. 989; Rubick v. Sandler, 219 S.W. 406; Steigleder v. Lonsdale, 253 S.W. 490; Woods v. Ry. Co., 187 S.W. 11. Van Leuven's speed before he began to turn was not in any sense a proximate cause of the collision. Berridge v. Pray, 210 N.W. 916. (e) The failure, if such there was, to give an arm signal of intention to make a left turn, as provided by Ordinance No. 2425, City of St. Louis, Revised Ordinances 1926, was not negligence; also it was not the proximate cause of the collision; further, since no common-law duty to give a hand signal was pleaded, the failure to give such signal was not a ground for recovery. The ordinance must be construed in conformity with Section 7777, Revised Statutes 1929; if not in such conformity it would be void. Secs. 7780, 7289, R.S. 1929; Sec. 23, Art. IX, Mo. Const.; St. Louis v. King, 226 Mo. 347; St. Louis v. Tielkmeyer, 226 Mo. 142; St. Louis v. World Pub. Co., 227 Mo. 148; Ex parte Taft, 284 Mo. 531. A hand signal was not required under the ordinance to warn Saner and no common-law duty to do so was pleaded. Phillips v. Henson, 326 Mo. 286. (f) Failure to run as near as possible to the center line of Twelfth Street south, with the left wheels just to the right of such line, and to slow down before beginning the left turn (as charged by the petition) was not the proximate cause of the collision. Krelitz v. Calcaterra, 33 S.W.2d 909; Sec. 7780, R.S. 1929; Richards v. Warner Co., 87 A.L.R. 1159. (g) Van Leuven did not violate that portion of the ordinance (Sec. 2425, supra) requiring a turn to be made to the right of the intersection of Hickory and Twelfth streets. (2) The court erred in refusing to give appellant's refused Instruction 2. (a) Van Leuven's car being seen, no warning was required. Wren v. Suburban Motor Co., 241 S.W. 469; Lumb v. Forney, 190 S.W. 989; Rubick v. Sandler, 219 S.W. 406; Steigleder v. Lonsdale, 253 S.W. 490; Woods v. Ry. Co., 187 S.W. 11. (b) Since there was no instruction given respecting negligence or on the right to recover, on behalf of respondent, it was error to refuse such instruction. Crossno v. Term. Railroad Assn., 328 Mo. 834; Cullen v. Johnson, 29 S.W.2d 39; Wright v. Quattrochi, 49 S.W.2d 3; Polkowski v. St. L. Pub. Serv. Co., 68 S.W.2d 884; Willis v. Applebaum, 26 S.W.2d 823. The following authorities have no application under such circumstances: Gorman v. Term. Ry. Co., 325 Mo. 334; Dietzman v. Screw Co., 300 Mo. 215; Ruth v. Tober, 8 S.W.2d 607; Northern v. Fisheries Co., 8 S.W.2d 996; O'Donnell v. Railroad Co., 26 S.W.2d 929; Berry v. Railroad Co., 43 S.W.2d 786. (3) The court erred in admitting testimony that Van Leuven failed to sound his horn. Authorities under Point (2). (4) The ordinance (Sec. 2425, Rev. Ord. St. Louis 1926) must be construed in conformity with Section 7777, Revised Statutes 1929; if not in such conformity it would be void. Secs. 7780, 7289, R.S. 1929; Kenney v. Hoerr, 324 Mo. 373; Sec. 23, Art. IX, Mo. Const.; St. Louis v. King, 226 Mo. 347; St. Louis v. Tielkmeyer, 226 Mo. 142; St. Louis v. World Pub. Co., 227 Mo. 148; Ex parte Taft, 284 Mo. 531. (a) A hand signal was not required under the ordinance to warn Saner and no common-law duty to do so was pleaded. Phillips v. Henson, 326 Mo. 286. (b) The instruction was technically proper. Authorities under Point (2). (5) The court erred in admitting testimony that Van Leuven failed to give a hand signal of his intention to make a left-hand turn. (6) The court erred in refusing to give appellants' refused Instruction 4-A. Krelitz v. Calcaterra, 33 S.W.2d 909; Sec. 7780, R.S. 1929; Richards v. Warner Co., 87 A.L.R. 1159. (7) The court erred in refusing to give appellants' refused Instruction 4-B. As to that part of the instruction referring to failure to run just to the right of the center line of Twelfth Street south before beginning the left-hand turn. Krelitz v. Calcaterra, 33 S.W.2d 909; Sec. 7780, R.S. 1929; Richards v. Warner Co., 87 A.L.R. 1159.
Gallant Hannigan and Robert L. Aronson for respondent.
(1) A direct and proximate connection between appellants' negligence and respondent's injury was established; there was no independent, intervening and superseding cause. Hogan v. Fleming, 297 S.W. 510; Cregger v. St. Charles, 11 S.W.2d 750; State ex rel. Hauck Bakery Co. v. Haid, 62 S.W.2d 400; Sisk v. Railroad Co., 67 S.W.2d 830; Taylor v. Grand Ave. Ry. Co., 137 Mo. 363, 39 S.W. 88; Johannes v. Becht Laundry Co., 274 S.W. 377. (2) A submissible case was made under the assignment of negligence that appellants failed to give any signal or warning of the approach of their car. (a) Respondent was in danger, though not in the direct path of appellants' car, and should have been warned. Burke v. Pappas, 293 S.W. 142; Gray v. Columbia Terminals Co., 52 S.W.2d 809; Martin v. Fehse, 55 S.W.2d 440. (b) Though Dr. Saner at one time saw appellants' car, it was the duty of appellants to give a signal or warning of their intention to drive their car in any manner out of the ordinary, such as to make a left turn from Twelfth Street into Hickory Street. Steigleder v. Lonsdale, 253 S.W. 487; Vitale v. Biando, 52 S.W.2d 24; Westerman v. Brown Cab Co., 270 S.W. 142; Bradley v. Becker, 11 S.W.2d 8. (3) A submissible case was made under the assignment of negligence relating to excessive speed. (4) A submissible case was made under the assignment of negligence that appellants violated Section 2425 of the Revised Code of the City of St. Louis, 1926. (5) Since submissible cases were made, no error was committed in refusing to give withdrawal instructions. (6) The court properly refused instructions 6, 8, 9, 10 and 11, because said instructions did not require a finding that appellants were not guilty of negligence, contributing to the collision and the injury, before directing a verdict in their favor. (7) The rulings of the trial court upon the admission and exclusion of evidence did not affect the result of the case and could not constitute proper grounds for reversal of the judgment.
This comes to the writer on reassignment. Respondent, plaintiff below, sued Union Electric Light Power Company, a corporation, Robert Van Leuven and Arthur M. Saner to recover damages for personal injuries alleged to have been sustained through the negligence of defendants. Upon a trial respondent obtained a favorable verdict in the sum of $20,000 against the Union Electric Company and Van Leuven. The jury found the issues in favor of the other defendant, Saner. The trial court ordered a remittitur of $5000, to which respondent consented, and judgment was entered for $15,000. From this judgment the Union Electric and Van Leuven appealed.
Respondent's injuries were sustained as the result of a collision between a small Ford truck belonging to the Union Electric, and driven by Van Leuven, and a car owned and driven by Saner. The collision occurred about five P.M. on the 22nd day of April, 1931, at the intersection of Twelfth and Hickory streets in St. Louis, Missouri. Twelfth Street is a main thoroughfare running north and south. Immediately north of Hickory Street, Twelfth Street runs a little to the northwest. South of Hickory Street it runs due south so that there is a bend in Twelfth Street at Hickory Street. Twelfth Street, at the time, was about fifty-five feet wide south of Hickory Street, and seventy feet wide north of Hickory Street. Hickory Street was thirty feet in width from curb to curb and crossed Twelfth Street in a somewhat northeasterly and southwesterly direction. At the time of the collision respondent was crossing Hickory Street from north to south in the pedestrian walk on the west side of Twelfth Street. Van Leuven, driving a Union Electric car, had proceeded north on Twelfth Street and had completed a left-hand turn, intending to go west on Hickory Street. About the time he was entering Hickory Street and leaving Twelfth Street, a car driven by defendant Saner, traveling south on Twelfth Street, struck the Union Electric car near the rear end, causing it to turn completely around as if on a pivot. As it swung south and west it struck plaintiff and seriously injured him.
The charges of negligence against appellants, stated in respondent's petition, were: (1) Failure to sound a warning of the approach and movement of the truck; (2) excessive speed; (3) violation of a city ordinance, which was pleaded as follows: "Three. There was in full force and at all times herein mentioned, an ordinance in the City of St. Louis, being Section 2425 of the Revised Code of St. Louis, 1926, which provides as follows, to-wit:
"`Signal for Left Turn.
"`An operator or driver approaching an intersection of a street with the intention of turning thereat, or with the intention of turning around in the street where the same is permitted, shall, in turning to the left, extend his arm at an angle below horizontal so that the same may be seen in the rear of his vehicle and shall slow down and approach the intersecting street so that the left side of his vehicle shall be as near as practicable to the center line of the street along which he is proceeding, but shall run beyond the center of such intersection, passing to the right thereof, before turning such vehicle to the left.'
"The defendant Union Electric Light Power Company and Robert Van Leuven, carelessly and negligently failed to give any arm signal of their intention of turning said automobile and the defendant Union Electric Light Power Company and Robert Van Leuven carelessly and negligently failed to slow down and approach the intersection of Twelfth and Hickory streets so that the left side of such vehicle was as near as practicable to the center line of Twelfth Street and failed to run beyond the center of said intersection, passing to the right thereof before turning such vehicle to the left;" and (4) that appellant carelessly and negligently ran into, struck and collided with the automobile of the defendant, Arthur M. Saner. Both appellants filed a general denial.
Appellants have briefed their assignments of error under twenty-three main topics and a number of subtopics. A disposition of a number of points will necessarily dispose of others. For example, appellants contend that the court erred in admitting evidence tending to prove that Van Leuven failed to sound a warning. Under another topic the point is made that Van Leuven's failure to sound a warning was not the proximate cause of the collision. Again appellants assert, under another topic, that the trial court erred in not giving their requested instruction withdrawing from the jury's consideration a charge of negligence of failure to sound a warning. Such questions will be treated in this opinion under a single topic.
Appellants devoted considerable space in their brief contending that the verdict and judgment in favor of the codefendant, Saner, cannot be considered as conclusive of any fact or issue involved in this action between respondent and the appellants. Many authorities are cited in support of this contention. It is elementary law that a plaintiff, as in this case, suing for damages for personal injuries resulting from negligence, must, before he is entitled to a judgment, produce evidence that the defendant against whom he seeks a judgment was guilty of negligence and that such negligence directly contributed to the injuries for which damages are sought. We will treat the case as though Saner had not been made a defendant. Appellants also correctly state that "respondent could not recover upon any negligence not pleaded by him." It is also urged in appellants' brief that all the evidence in the case, inconsistent with the physical facts, should be disregarded. We will attempt to abide by that rule. Appellants also insist that the evidence conclusively showed plaintiff was struck by the Union Electric truck, or car, when it was forced southward by the impact of the collision. In their brief appellants say:
"The force of the collision caused Van Leuven's car to pivot on his front wheels to the left in a circle and strike Felber with its rear end and injuring him."
We think the evidence justifies that statement. Appellants insist that the various charges of negligence were not substantiated by evidence, or, if proven, that they were not the proximate cause of plaintiff's injuries.
In discussing these questions it must be remembered that it was not necessary to render appellants liable, that the negligence of Van Leuven was the sole proximate cause of the injury. If the concurrent negligence of two persons causes injuries to a third, both are liable. [State ex rel. v. Haid, 333 Mo. 76, 62 S.W.2d 400, l.c. 402 (4).] [2] It is conceded, by appellants, that Van Leuven did not give any warning signal. It is asserted, however, that:
"Van Leuven's failure to sound a horn or give any warning of his approach was not the proximate cause of the collision and Felber's consequent injury.
"(1) Felber was not in danger of being run down and needed no warning.
"(2) Saner saw Van Leuven's car at all times, so that no warning was necessary."
As to the second proposition appellants may be correct, but we cannot say, as a matter of law, that Felber was not in danger of being run down by appellants' car. Felber was walking across Hickory Street where Van Leuven attempted to drive his car. Felber had not yet crossed the street when he was struck by the side movement of Van Leuven's car. Felber had, therefore, cleared the path of Van Leuven's car by only a few feet. Saner testified as follows: "Q. Now then, what occurred? A. Well, as I got near the corner of Twelfth, or at the corner of Twelfth and Hickory Street, this car that was going north abruptly or suddenly made a left turn and I applied my brakes, and turned to the left to avoid striking him. I saw that the man that was driving his car had slowed up perceptibly and kind of turned to the left or rather to the right. Q. Now, when did he slow up and turn to the right? A. Well, when his car was just about approaching the crossing on Hickory Street going from the north to the south side. Q. On the pedestrian's crossing, you mean? A. Yes. Q. That is when it slowed up suddenly? A. Yes."
The evidence justified the conclusion that Van Leuven checked the speed of his car to permit the plaintiff to pass out of the pathway of the car, and because he checked his speed, was struck by Saner's car. The facts justified the court in submitting the case to the jury on this charge of negligence, because a jury could justly find that had Van Leuven sounded his horn in time the plaintiff may have stopped and permitted the car to pass in front of him, or plaintiff may have accelerated his speed and passed ahead of the car so that it would not have been necessary for Van Leuven to slow down, and thus have avoided the collision. A second or less would have been sufficient for Van Leuven's car to have cleared the pathway of Saner's car. We are therefore of the opinion that the evidence was sufficient to submit the question of whether Van Leuven failed to exercise the highest degree of care in not sounding his horn as a warning to plaintiff of the close proximity of the car.
We are of the opinion that the evidence not only failed to sustain the charge of negligence of excessive speed, but showed the contrary. There was evidence in the record that Van Leuven was driving at a rate of speed of about twenty-five or thirty miles per hour prior to the time he reached the intersection, but the evidence showed that he slowed down at the intersection and was driving only about ten or twelve miles per hour. He had his car under control. He testified he could have stopped within two or three feet at any time after he reached the intersection. There was no evidence to the contrary. The case of State ex rel. v. Haid, supra, cited by respondent, does not support his contention. In fact, the evidence showed that Van Leuven's car was struck because he slowed up perceptively. Dr. Saner so testified. Excessive speed on the part of Van Leuven, prior to the time he reached the intersection, had nothing to do with the collision. Appellants' Instruction No. 3, withdrawing this assignment of negligence from the jury should have been given. [Shelton v. Rudd, 242 S.W. 151, l.c. 152, 153, (3) and cases there cited.] The refusal of this instruction was error and appellant duly preserved this ruling for our review.
We must also rule that the charge of negligence, that Van Leuven failed to drive as near as practicable to the center line of Twelfth Street, prior to making a left-hand turn, should have been withdrawn from the jury. The evidence showed he followed the car tracks up to the point where he made the left-hand turn. Whether or not that was the proper place for Van Leuven to drive had no connection with the collision. Appellants' instruction withdrawing this charge should have been given. [Krelitz v. Calcaterra, 33 S.W.2d 909, l.c. 911 (2-3).]
Respondent charged a violation of a city ordinance in that Van Leuven failed to give any arm signal of his intention of making a left-hand turn. The evidence disclosed that there was at the time, no traffic moving north to the rear of Van Leuven. The evidence also showed that Van Leuven did not give an arm signal. In Phillips v. Henson, 326 Mo. 282, l.c. 286-7-8, 30 S.W.2d 1065, this court, in speaking of a similar situation, said:
"The language of the statute indicates that the signal of intention to turn a motor vehicle to the right or left was intended as a warning to persons approaching from the rear. No doubt it would have been wise to have required a signal or warning to persons approaching from the opposite direction, but as the Legislature did not see fit to do so, we have no authority to incorporate such a provision into the statute by construction. As the statute does not require the driver of a motor vehicle, on approaching intersecting streets, to warn persons approaching the same intersection from the opposite direction, of his intention to turn his vehicle to the right or left, failure to give a warning under such circumstances would not be negligence per se."
On this point plaintiff's petition charged only a violation of the ordinance and not common-law negligence. The ordinance was introduced in evidence and read to the jury. The only instruction requested by plaintiff was one on the measure of damages. The case was, therefore, submitted to the jury on the theory that defendant violated the city ordinance in this respect and therefore was guilty of negligence. This was plaintiff's theory at the trial. The above quotation from Phillips v. Henson is applicable to this case and further discussion is unnecessary. Appellants' instruction withdrawing this assignment of negligence should have been given.
Appellants also charged that Van Leuven did not violate that portion of the ordinance requiring a turn to be made to the right of the center of the intersection of Hickory and Twelfth streets. Since Twelfth Street and Hickory do not meet at right angles, as above stated, the mathematical center, as appellants argue, would be the point of meeting of the center lines of Hickory and Twelfth streets drawn parallel with the direction of the streets. It is obvious that it would be impracticable to require traffic going north to go to the right of the so-called mathematical center in making a left-hand turn. Ordinances of this nature are not to be construed so as to be absurd. [Stack v. General Baking Company, 223 S.W. l.c. 93-94, 283 Mo. 396.] In this case there was evidence, which we need not detail because the case must be reversed for a new trial, that Van Leuven did not go to the center of the intersection, even if we consider the center as being where appellants contend. Evidence was introduced that Van Leuven cut the corner and was within five or six feet of the south curb line of Hickory Street when struck by Saner's car. There was evidence, therefore, to support this charge of negligence. We may add that we believe appellants' contention, as to what point should be considered the center, is correct, when the ordinance is given a practical construction. In the interest of justice, an instruction on this point should be given for the guidance of the jury.
As above indicated, respondent did not request the trial court to give any instruction defining the issues of the case. Appellants' instructions were refused, except one on the burden of proof and another defining the terms "ordinary care" and "highest degree of care." So the case was submitted to the jury without any guide as to the issues to be determined. The case was submitted to the jury on all the charges of negligence alleged in the petition. An ordinance was introduced in support of four charges. A number of these had no causal connection with the collision. Withdrawal instructions were requested by appellants, which the court refused. In Crossno v. Terminal Railroad Association, 41 S.W.2d 796, 328 Mo. 827, l.c. 834, Division One of this court concisely stated the rule applicable to this case as follows:
"Where, however, plaintiff has enumerated several grounds of negligence in his petition and goes to the jury, as in the instant case, without instructions submitting any specific assignment or assignments of negligence, he must be considered as going to the jury on all the assignments of negligence made in his petition, and if the evidence does not sustain all of them it is error to refuse instructions withdrawing from the consideration of the jury those assignments not supported by proof. [Willis v. Applebaum (Mo. App.), 26 S.W.2d 823.]"
With the number of charges of negligence against appellants and four specific charges of negligence against the defendant, Saner, and the complicated questions arising by reason thereof, it is preposterous to say that a jury could intelligently arrive at a just verdict without instructions to guide them. This court en banc, in the case of Dorman v. East St. Louis Railway Company, 75 S.W.2d 854, 335 Mo. 1082, indicated that in such cases instructions should be given clearly defining the issues. In the Dorman case the defendants submitted and the court gave instructions sufficient to guide the jury. As we understand the opinion, the judgment for plaintiff would have been reversed and remanded except for the reason that defendant's instructions, given by the court, were sufficient. More to the point is the case of Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66, l.c. 75, etc. (12-13), where the question was discussed at some length, and the court concluded as follows:
"It is our conclusion that the jury was not clearly advised what facts it was necessary to find in order to find against Smith and Clay, and that plaintiff's failure to submit the theory upon which he sought recovery against defendants was error."
That question is not before us, but we are making the suggestion that in cases of this kind a plaintiff ought to submit instructions to the end that a jury may intelligently arrive at a just verdict.
On a retrial respondent should heed the rulings in the cases of Crossno v. Terminal Railroad Association, Phillips v. Henson, Dorman v. East St. Louis Railway Company, and Yerger v. Smith, supra, on the points indicated. Other questions presented need not be discussed as they pertain to the injuries plaintiff sustained and the amount of the verdict.
The judgment is reversed and the cause remanded. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.