Opinion
No. 28003.
April 17, 1951. Motion for Rehearing or for Transfer to Supreme Court Denied May 18, 1951.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, F. E. WILLIAMS, J.
Carroll J. Donohue and Salkey Jones, all of St. Louis, for appellant.
Wilbur C. Schwartz and Harry M. James, St. Louis, for respondent.
This is a suit for damages for personal injuries alleged to have been sustained by plaintiff as the result of negligence of defendant on November 17, 1948, when she was a passenger on defendant's bus. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $5000.00. Defendant duly appealed.
The petition of plaintiff alleged that defendant was a common carrier of passengers for hire in the operation of motor busses in the City of St. Louis, Missouri; that on November 17, 1948, she was a farepaying passenger on a bus operated by defendant which was traveling northwardly on Seventh Street between Olive and Locust Streets in said city when defendant's agent and servant negligently caused and permitted said bus unexpectedly to give a sudden, violent and unusual jerk and jolt, whereby plaintiff was thrown against the seats and the floor of said bus and sustained injuries which were described at length in the petition.
Defendant's answer, after admitting the formal allegations contained in paragraph 1 of plaintiff's petition, denied generally the allegations in paragraphs 2 and 3 constituting the remainder of said petition.
At the trial plaintiff testified that on the date mentioned she was a passenger on a Lindenwood bus of defendant company which was proceeding north on Seventh Street in the City of St. Louis; that she was seated in the fourth seat on the right hand side of the bus; that after the bus had discharged passengers on the south side of Olive Street and had pulled away from that loading zone, she rang the bell, stood up and proceeded toward the back door; that at that time a violent jerk of the bus occurred and she was knocked to the floor; that the jerk of the bus threw her off balance and caused her to go backwards toward the front of the bus; that she first hit on her buttocks and then fell straight back; that after she fell she was lying in a prone position in the aisle of the bus with her head toward the driver and her feet toward the rear of the bus; that she lay there for a few minutes and was then able to get up; that the bus at that time was stopped in the middle of Seventh Street about thirty feet north of Olive Street; that she did not know why the bus was brought to a stop because her back was turned to the front of the bus, "and when this violent jerk occurred I was so off balance I couldn't — I landed in front. I never knew nothing." Plaintiff further testified that after the jerk and her fall the operator of the bus then drove it northwardly and brought it to its regular stop at Seventh and Locust Streets.
Plaintiff testified at length and in detail as to the nature and extent of her injuries. Dr. Richard Ray also testified at length in plaintiff's behalf concerning her injuries and the treatments he gave her for them, but since defendant makes no point in this court on such injuries, it would serve no useful purpose for us to set forth such testimony here.
On cross-examination plaintiff testified that when the bus had stopped on the south side of Olive Street at the regular stopping place, it was the first vehicle in line, there being no other vehicle in front of it; that she rang the bell and stood up as the bus was crossing Olive Street; that she was within several steps of the rear door when the violent jerk of the bus occurred; that the driver of the bus did not say why the sudden stop was made; that there was no collision of the bus with another vehicle; that she did not see an automobile pass to the left of the bus and did not see an automobile in front of it; that she did see two automobiles parked at Famous and Barr entrance but did not see these automobiles until after she had gotten up. At this point plaintiff testified: "Q. You don't know why the driver applied the brakes of the bus? A. I don't know a thing." Defendant's counsel asked plaintiff: "Q. Can you tell us how fast that bus was moving at the time the brakes were applied?" and plaintiff answered: "A. I had no judgment of the speed at all." She further testified at this point: "Q. You didn't feel any side movement? "A. No. "Q. Just the brakes being applied? "A. I just don't know about the brakes being applied. All I know is a terrific jolt and then I was landing back in the back of the bus. The jolt was so hard, I couldn't — "
Dr. Douglas A. Ries called as a witness for defendant testified that he is a physician and specializes in general surgery; that he examined plaintiff on September 16, 1949, and found no ailments or illnesses except that she complained of pain in the left lumbar region of her back; that there was no objective evidence of tenderness or muscle spasm in that area; that x-rays of plaintiff's back were taken and revealed arthritis in the lumbar vertebrae; that his conclusion was that there was no objective evidence of any injury or disability as a result of the accident on November 17, 1948. Since the size of the verdict and the nature and extent of plaintiff's injuries are not in issue on this appeal, we refrain from further recitation of medical testimony.
Raymond E. Sparks, the operator of defendant's bus on the occasion involved herein, testified that he had been employed by defendant as a bus driver for seven and a half years; that on November 17, 1948, he was driving the Lindenwood bus on which plaintiff fell; that the bus was proceeding northwardly and made a stop at the south side of Olive Street in Seventh Street; that there were no vehicles between the front of the bus and Olive Street; that when the traffic officer gave the go-ahead signal, the bus started forward; that the bus was of the newest type fluid drive and when it had proceeded about two-thirds of the way across Olive Street, moving at about ten miles an hour, an automobile which had previously been alongside of the bus, cut in front of the bus. The witness testified that he applied the brakes as quickly as he could and avoided hitting the automobile; that at the time the bus stopped, there was less than an inch between the two vehicles and the bus was about six to eight inches away from the curb of Seventh Street. The witness stated he did not see anyone fall down in the bus, although he did hear a shuffling of feet; that he did not see plaintiff being assisted to her feet; that he received no complaints about any injuries.
On cross examination Sparks testified that Seventh Street was quite crowded with busses and automobiles; that the automobile mentioned was alongside of the bus at Seventh and Olive Streets and the vehicles were about a foot and a half apart; that when the go signal was given both vehicles started out simultaneously, both passing on the east side of the traffic officer in the intersection; that the automobile mentioned started to cut in front of the bus when the bus reached the north curb of Olive Street, and the witness was watching the automobile at all times; that when the automobile cut in front of the bus its movement was sudden and the witness immediately started to slacken the speed of the bus; that on the morning in question there were vehicles loading at the Seventh Street entrance of the Famous and Barr Department Store. The witness testified that he applied the brakes hard enough to stop the bus; that the bus stopped within four to five feet and he felt the jar as he applied the brakes; that the stop was an unusual stop; that he heard from other passengers that two ladies had fallen and were hurt.
Leroy Graham, Sr., called as a witness for defendant, testified that he was a passenger on the Lindenwood bus in question on November 17, 1948, which arrived at Seventh and Olive Street about 11 o'clock in the morning; that he did not see anyone fall on the bus but heard a rumble which he interpreted as someone falling; that after the bus crossed Olive Street an automobile pulled in front of the bus and the bus driver jammed on his brakes, missing the other car by an inch; that the bus was brought to a complete stop.
Burt Ritchey testified on behalf of defendant that he was a passenger on the bus in question on November 17, 1948; that he was seated in the bus on the seat behind the driver; that the bus stopped at the south side of Olive Street on Seventh and then moved across Olive Street at less than ten miles an hour and was being driven straight ahead; that when the emergency stop was made the bus was five or six inches from the curb; that an automobile cut in front of the bus just as the bus cleared Olive Street; that the witness did not see anyone fall in the bus when the stop was made but when he looked around, he saw a lady sitting in the aisle; that he did not know who she was; that to avert a collision with the other automobile, the driver of the bus slammed on his brakes and the jolt that followed was unusual.
Defendant contends that the court erred in giving instruction No. 2 to the jury which submitted plaintiff's case to the jury under the "res ipsa loquitur" doctrine. In support of this contention defendant argues that no res ipsa loquitur instruction should have been given because, as defendant claims, plaintiff's evidence showed the alleged specific negligence of defendant which caused her injuries and that her case should have been submitted to the jury on such specific negligence.
In support of its contention defendant argues that notwithstanding plaintiff's assertions that she did not know what caused "the terrible and terrific jerk" a careful examination of portions of plaintiff's testimony, which defendant says "may fairly be removed from the context," indicate that she described specific negligence with sufficient definiteness to remove her case from the purview of the doctrine of "res ipsa loquitur." To prove its contention that plaintiff's testimony shows specific negligence of defendant, defendant quotes from plaintiff's testimony as follows:
"Q. You don't know whether the bus was stopping, whether it was increasing speed or what. Is that right? A. Well, it is ordinarily like you would start or step on the gas, when it crossed Olive Street. The next thing I knew, this terrible jolt occurred and he was stopped.
"Q. He stopped the bus then, did he? A. Yes; about thirty feet from Olive Street north of Olive, where it was stopped.
"Q. Was it the stopping motion you are describing as this terrific or terrible jerk? A. Well, I guess that is what you call it, because it was a terrible jerk that caused me to fall. I never knew that it was.
"Q. Was it the stopping motion that you describe as the terrific jerk? A. The jerk of the bus in trying to stop, I guess.
"Q. It didn't run on the curb or strike another vehicle, or anything like that? A. It was a dead stop in the middle of the street.
* * * * * *
"Q. Was the bus involved in a collision with another vehicle? A. It was not.
* * * * * *
"Q. What was the position of the bus on Seventh Street when it was brought to a stop? A. I couldn't tell you exactly. It was out towards the middle of the street and these other two machines were parked out in front, but they were up at Famous' entrance.
"Q. You didn't notice those until after you got up? A. That's right.
"q. You don't know why the driver applied the brakes of the bus? A. I don't know a thing.
* * * * * *
"Q. Can you tell us how fast that bus was moving at the time the brakes were applied? A. I had no judgment of the speed at all."
We are unable to agree with defendant's contention that the above testimony of plaintiff shows that she described specific negligence in such a manner as to take her case out of the doctrine of res ipsa loquitur. We think it is clear that the above testimony of plaintiff shows that she was merely describing an unexpected violent jolt and jerk of the bus and the effect thereof upon her and gave no testimony whatsoever showing any negligent act or negligent failure to act on the part of defendant showing a specific cause of her fall and injuries. We think it is clear from all of plaintiff's testimony that she testified that she did not know what the driver of the bus was doing or what he failed to do at the time of the jerk and jolt because plaintiff was walking toward the rear exit door of the bus with her back toward the driver and could not see what he was doing. Plaintiff's testimony clearly shows that she was within a few feet of the rear door of the bus with her back toward the driver when "the terrible and terrific jerk and jolt" occurred. It is true that defendants counsel in cross examining plaintiff assumed in his questions that the jerk and jolt of the bus were caused by the sudden application of the brakes by the driver, but this cannot be taken as the testimony of plaintiff because plaintiff herself did not at any time testify to anything about the brakes, but, on the contrary, specifically said, in answer to a question by defendant's counsel: "Q. Just the brakes being applied? "A. I just don't know about the brakes being applied. All I know is a terrific jolt and then I was landing back in the back of the bus."
We are of the opinion that plaintiff's testimony in the case at bar entitled her to go to the jury on the doctrine of res ipsa loquitur as that doctrine is set forth in a comparatively recent decision of our Supreme Court wherein a decision of this court on that doctrine was adopted. We refer to Belding v. St. Louis Public Service Co., 358 Mo. 491 (en banc), 215 S.W.2d 506, 510. See also the same case, Mo.App., 205 S.W.2d 866. In the Belding case, supra, the Supreme Court said: "It follows, therefore, that when the plaintiff, having pleaded a case of res ipsa loquitur, goes so far in his own evidence as to point out, and reveal his knowledge of, the specific act of negligence which was responsible for his injury, there is neither room nor necessity for the application of the doctrine. But on the other hand, even though the plaintiff's evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the doctrine, not be deprived of the right to rely upon it in the submission of his case, if, after his evidence is in, `the true cause is still left in doubt or is not clearly shown'. Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163, 169; Conduitt v. Trenton Gas Electric Co., 326 Mo. 133, 31 S.W.2d 21; Powell v. St. Joseph Ry., Light, Heat Power Co., 336 Mo. 1016, 81 S.W.2d 957; Glasco Electric Co. v. Union Electric Light Power Co., supra [332 Mo. 1079, 61 S.W.2d 955]; Williams v. St. Louis-San Francisco R. Co., 337 Mo. 667, 85 S.W.2d 624; Price v. Metropolitan Street R. Co., 220 Mo. 435, 119 S.W. 932, 132 Am.St.Rep. 588; 45 C.J. 1206-1207." (Emphasis ours.) Belding v. St. Louis Public Service Co., 358 Mo. 491, 497, 215 S.W.2d 506, 510.
We are satisfied that the evidence in the case at bar bring it squarely within the doctrine mentioned as defined in the Belding case, supra, and the many cases cited therein.
Defendant's contention that the case of Hoeller v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 7, 12, must govern the decision in the case at bar cannot be sustained. The Hoeller case was a decision by this court in 1947. It is true that this court held under the facts in the Hoeller case, supra, that plaintiff had made out a case of specific negligence and was, therefore, not entitled to the benefit of the res ipsa loquitur doctrine. However, the facts in the Hoeller case, supra, were so widely different from those in the case at bar that said case has no application to this case. In the Hoeller case the testimony on behalf of plaintiff showed that the streetcar made a sudden violent and unusual stop at a regular stopping place for the discharge of passengers. Plaintiff therein testified that she personally felt the brakes being suddenly applied; that she had never experienced a stop like that one although she had ridden on streetcars for many years. Even in the Hoeller case this court held that the testimony of plaintiff alone was not sufficient to show the specific negligence which caused her injuries. Furthermore, in the Hoeller case plaintiff's daughter testified for plaintiff that she was familiar with the feel of the car as the brakes were being applied and that on the occasion involved "the brakes were suddenly jammed on". It was this testimony of the daughter in the Hoeller case adduced on behalf of plaintiff which made it a case of specific negligence. In distinguishing the Belding case from the Hoeller case on the facts the Supreme Court pointed out that the daughter's testimony in the Hoeller case made it one of specific negligence with respect to an improperly applied pressure on the brakes. We have no testimony from plaintiff or any other witness in her behalf in the case at bar such as was given by the daughter of plaintiff in the Hoeller case. Hence, there was no showing herein of specific negligence such as there was in the Hoeller case and such as there was in other case cited by defendant.
Defendant has cited a large number of cases dealing with the doctrine of res ipsa loquitur but a proper respect for a reasonable length of opinions compels us to refrain from any attempt to analyze such cases here. Moreover, a cardinal rule of appellate decision is that each case of this character must rest on its own particular facts in determining whether the doctrine of res ipsa loquitur is or is not applicable. We hold that under the evidence herein plaintiff was clearly entitled to the benefit of that doctrine and the court did not err in giving instruction No. 2.
Defendant next contends that the trial court erred in giving instruction No. 1 to the jury. Said instruction contained five paragraphs. There is no contention that the first two paragraphs were erroneous. We, therefore, deem it unnecessary to set them forth here.
The third paragraph of said instruction No. 1 told the jury that if they believed and found from the evidence that on November 17, 1948, plaintiff boarded one of defendant's motorbuses and paid her fare and became a passenger thereon "then under the law the defendant was bound to the continuous duty to use and exercise the highest degree of care, skill and vigilance at all times and under all circumstances to carry and transport the plaintiff safely while she was a passenger on defendant's said motorbus." Defendant does not contend that said third paragraph in itself contained any reversible error but asserts that its combination with the succeeding paragraphs made the instruction prejudicially repetitious and argumentative.
In the fourth paragraph of said instruction No. 1 the court told the jury: "By the term `highest degree of care, skill and vigilance,' as used in these instructions, the Court means the utmost care, caution, skill and vigilance which capable and very careful and prudent men engaged in the business of operating motorbuses as a common carrier transporting passengers for hire would use and exercise under the same or similar circumstances to safely transport those who become passengers."
Defendant strongly urges that the fourth paragraph of the instruction was erroneous because it defined the "highest degree of care, skill and vigilance" as the "utmost care, caution, skill and vigilance which capable and very careful and prudent men engaged in the business of operating motorbuses as a common carrier transporting passengers for hire would use and exercise under the same or similar circumstances to safely transport those who became passengers." Defendant points out that the language of paragraph 4 above set forth is buttressed by paragraph 5 of the instruction which told the jury that "Any failure whatsoever, that you may find, on the part of the defendant to exercise such highest degree of care, skill and vigilance to safely transport the plaintiff while she was a passenger on its motorbus, would constitute negligence as that term is used in other instructions herewith given to you." Defendant insists that the combining of paragraph 3, 4, and 5 placed a greater duty on defendant carrier than is required by law.
Defendant argues that in defining the "highest degree of care" by the use of the word "utmost" paragraph four made defendant an insurer of the safety of plaintiff as its passenger. Defendant asserts that while the duty of a common carrier to a passenger "is a great and substantial one it does not require the utmost degree of care which the human mind is capable of imagining or which men are capable of exercising." The obvious answer to this argument of defendant is that the instruction did not require "the utmost degree of care which the human mind is capable of imagining or which men are capable of exercising." It simply required "the utmost care, caution, skill, and vigilance which capable and very careful and prudent men engaged in the business of operating motorbuses as a common carrier transporting passengers for hire would use and exercise under the same or similar circumstances to safely transport those who become passengers." (Emphasis ours.)
Defendant's argument assumes that the instruction defined the highest degree of care as the "utmost care, caution, skill and vigilance" without any modification or qualification. Such assumption by defendant is erroneous. It will be noted that the instruction limited and modified the word "utmost" by the use of the words "which capable and very careful and prudent men engaged in the business of operating motorbuses * * * would exercise under the same or similar circumstances * *."
The use of the word "utmost" in instructions defining the highest degree of care has been the subject of much discussion in a large number of cases. In some cases the use of that word without any limiting or modifying words has been condemned. In other cases the courts have refused to reverse cases wherein instructions used the word "utmost" with proper modifying words. Like most questions of this nature, cases can be cited which at first glance seemingly are in conflict. However, upon careful analysis of such cases it will be found that the decisions of our courts have turned upon the presence or absence of other words which qualified or modified the word "utmost." The use of the word "utmost," in the case at bar coupled as it was with the qualifying and limiting words immediately following it, could not have led the jury to believe that defendant was to be regarded as an insurer of the safety of plaintiff. Any difference between the meaning of the word "utmost" and the word "highest" as used in the instruction, keeping in mind the qualifying words immediately following the word "utmost" is so slight and infinitesimal as to be of no real significance whatever. Nothing could be higher than "highest." We agree with the holding of the Kansas City Court of Appeals that "There is and can be no degree of care higher than the highest." Allen v. Purvis, Mo.App., 30 S.W.2d 196, 202. We do not think the use of the word "utmost" followed as it was by proper modifying words in the instruction now before us could have misled the jury and it was, therefore, not reversible error.
The cases cited by defendant on this point do not constitute authority that would justify us in requiring this case to be retried because of the giving of instruction No. 1.
In Engle v. St. Joseph Railway, Light, Heat Power Co., Mo.App., 44 S.W.2d 175, 177, cited by defendant on this point, an instruction was given placing upon defendant therein the duty of exercising "the `utmost care, skill and vigilance'" and directed a finding in favor of plaintiff for failure of defendant to exercise such "utmost care, skill and vigilance." It is apparent at once that the instruction in said case was not similar to the instruction in the case at bar. The instruction in said Engle case contained no modifying words such as appear in the case at bar. The instruction, therefore, unquestionably did make of defendant an absolute insurer of the safety of the plaintiff therein and the court very properly held it to be prejudicially erroneous.
In Dougherty v. Missouri Railroad Company, 97 Mo. 647, 8 S.W. 900, 902, 11 S.W. 251, cited by defendant herein, the instruction involved told the jury that they should find for the plaintiff therein unless they believed that the injury could not have been prevented by defendant by "the exercise of the utmost human foresight, knowledge, skill, and care". It will be observed that the instruction in the Dougherty case, supra, was not modified and limited as was the instruction in the case at bar to that care which would be exercised by careful persons in a like business under similar circumstances. The instruction was properly held to be erroneous.
In Gilson v. Jackson County Horse Railway Company, 76 No. 282, also cited by defendant herein, the point of the objection to the instruction involved was not that it used the phrase "utmost care and skill" but because it required the defendant to exercise whatever care and diligence would be "necessary" to prevent the accident. The said Gilson case did not condemn the use of the word "utmost" in any instruction. On the contrary, the court in defining the duty of a carrier of passengers held that it was not an insurer but that it was its duty to use "the utmost case and diligence of a cautious person." The point on which the court in the Gilson case held the instructions were bad was in telling the jury that a common carrier was liable for an injury to a passenger unless he had used "the greatest possible care and diligence that was necessary." It was the use of the word "necessary" in the instruction that the court found to be erroneous. We have no such language in the instruction complained of in the case at bar.
In Quinn v. Metropolitan Street Railway Company, 218 Mo. 545, 118 S.W. 46, another case cited by defendant herein, the trial court refused to give an instruction telling the jury that the defendant was required to exercise towards plaintiff the utmost skill and care for his safety that prudent men would have exercised while engaged in the same business under similar circumstances. The Supreme Court on appeal merely held that it was not reversible error for the trial court to refuse such instruction in view of other instructions that were given. It is true that the court in the discussion did express a preference for the word "highest" over the word "utmost" in the Quinn case, supra, but the case did not involve the same question that is before us in the case at bar, and is, therefore, not in point herein.
Having shown that the authorities cited by defendant herein are clearly distinguishable from the case at bar because of the difference in the language of the instructions involved, and are, therefore, not applicable here, we now proceed to determine whether or not the use of the word "utmost" in an instruction such as we have before us has met with approval in the decisions of the courts of this state. We find many such cases but in view of the length which this opinion has already attained, we shall review only a few of them.
In Sweeney v. Kansas City Cable Railway Company, 150 Mo. 385, 401, 51 S.W. 682, 687, answering an attack upon an instruction which the defendant therein claimed enlarged its duty, the Supreme Court said: "There is no question but that the degree of care required of streetrailway companies towards their passengers is the utmost care and diligence of very cautious persons." (Emphasis ours.)
In Furnish v. Missouri Pacific Railway Company, 102 Mo. 438, 13 S.W. 1044, 1045, an instruction given for plaintiffs told the jury that they should find for plaintiffs unless the conditions which caused the injury and the injury could not have been prevented by the exercise of "the utmost human skill, diligence, and foresight". The last quoted words were defined in the instruction as follows: "By the utmost human skill, diligence, and foresight", is meant "such skill, diligence, and foresight as is exercised by a very cautious person under like circumstances." In passing upon said instruction the court said: "This is substantially and almost literally the same language as is approved by textwriters of high authority in summarizing the law deducible from all the precedents. * * * That degree of care has generally been defined in language such as was used in the instruction before us. It has been repeatedly approved by many courts, and we consider this rule so well established in our jurisprudence as to require no further argument to support it." Furnish v. The Missouri Pacific Railway Company, 102 Mo. 438, 450, 451, 13 S.W. 1044, 1047. (Emphasis ours.)
In Kirkpatrick v. Metropolitan Street Railway Company, 211 Mo. 68, 109 S.W. 682, in passing upon a complaint against an instruction similar to the complaint in the case at bar the Supreme Court said: "The instruction, in effect, told the jury that it was the defendant's duty to use the utmost care, diligence, and foresight which capable and faithful railroad men would use under like circumstances. The instruction properly told the jury the degree of care appellant owed to the respondent. The law declared therein has been many times announced by this court, as will be seen by consulting the following cases: Lemon v. Chanslor, 68 Mo. [340], loc. cit. 356; Jackson v. Grand Ave. Ry. Co., 118 Mo. [199], loc. cit. 224, 24 S.W. 192; Smith v. Chicago A. Railway Co., 108 Mo. [243], loc. cit. 249, 18 S.W. 971; Clark v. Chicago A. Ry. Co., 127 Mo. [197], loc. cit. 208, 29 S.W. 1013; Devoy v. St. Louis Transit Co., 192 Mo. [197], loc. cit. 209, 91 S.W. 140; Fullerton v. St. Louis, I. M. S. Railway Co., 84 Mo.App. [498], loc cit. 502." Kirkpatrick v. Metropolitan Street Railway Company, 211 Mo. 68, 87, 109 S.W. 682, 687, 688. (Emphasis ours.)
In Fillingham v. St. Louis Transit Company, 102 Mo.App. 573, 583, 77 S.W. 314, 317, this court in stating the degree of care that the law exacts of a carrier of passengers said: "No one will dispute the proposition that it is the highest care, the utmost that very prudent men employ in performing the contract of carriage with like means of transportation" that is required. (Emphasis ours.)
In a comparatively recent case this court, referring to the degree of care which a common carrier owes to its passengers said: "although a carrier is not an insurer of the safety of its passengers, it is nevertheless liable for negligence which results in a passenger's injury, and it is under a duty to exercise the `highest degree of care,' sometimes referred to as the `utmost care,' to prevent and avoid injury to its passengers." Case v. St. Louis Public Service Co., 238 Mo.App. 1029, 1042, 192 S.W.2d 595, 602.
We hold that the use of the word "utmost" in the instruction in the case at bar, qualified as it was by the words following it, as shown, was not prejudicially erroneous.
Defendant makes further complaint against instruction No. 1 and earnestly insists that because of the repetitions and argumentative language contained therein it unduly emphasized defendant's duty as to the care defendant was required to exercise and was, therefore, highly prejudicial to defendant's right to a fair trial. In defendant's motion for a new trial it complained that the court erred in giving each and every instruction given on behalf of plaintiff on the ground they were erroneous, misleading, illegal, and prejudicial. The complaints as to the instructions as well as all other points raised in said motion were overruled by the trial court.
It is true instruction No. 1 was lengthy and there was some repetition in it, but we think it was not of such a nature as to call for a retrial of the case for that reason. It was not what we would call a model instruction, but we find no erroneous declaration of law in any part of it. On the contrary, it correctly declared the law applicable to the evidence. The matter of repetition or elaboration of the same proposition in an instruction is generally held to be within the discretion of the trial court. In Mueller v. Schien, 352 Mo. 180, 190, 176 S.W.2d 449, 454, complaint was made against instructions therein on the ground that they abounded with repetition and unduly emphasized the law relating to the burden of proof and that they were, therefore, misleading and confusing. In that case the Supreme Court said: "The matter of repetition or elaboration of the same proposition in instructions is generally considered to be within the discretion of the trial court and not to be reversible error where not considered so by the trial court. Wells v. City of Jefferson, 345 Mo. 239, 132 S.W.2d 1006, 1009. Furthermore, mere repetition in instructions does not ordinarily constitute a ground for reversal. Rath v. Knight, Mo.Sup., 55 S.W.2d 682, 684; Hulsey v. Tower Grove Quarry Construction Co., 326 Mo. 194, 30 S.W.2d 1018, 1028."
It was also held by the Supreme Court in a very recent case that repetition or elaboration of the same proposition in instructions is not considered reversible error where the trial court has considered and passed upon such a complaint and overruled it. West v. St. Louis Public Service Co., Mo.Sup., 236 S.W.2d 308, 311.
In another recent case decided by our Supreme Court plaintiff therein had sued for $15,000 damages for personal injuries arising out of a collision between an automobile and a truck on a highway. Defendant therein had filed a counterclaim. There was a verdict and judgment for defendant on plaintiff's claim and for defendant for $275 on his counterclaim. Plaintiff's motion for a new trial was overruled as to the judgment on plaintiff's cause of action and plaintiff appealed. In that case complaint was made by plaintiff-appellant against "the combined effect" of three instructions given at defendant's request on the ground that they "unduly emphasized plaintiff's burden of proof and that their combined giving was prejudicially erroneous." The Supreme Court held that the matter of repetition or elaboration of the same proposition in instructions is generally considered to be within the discretion of the trial court and is not held to be reversible error where it was not so considered by the trial court. Ford v. Dahl, 360 Mo. 437; 228 S.W.2d 800, 804, 805, and cases cited therein.
Where an instruction contains language reasonably open to the view that it could mislead the jury to the prejudice of a party the appellate court should not hesitate to hold it erroneous and reverse the judgment. However, we also believe that an appellate court should not be too ready to require new trials of cases, with all of the attendant delay and additional expense to all parties, on the ground of erroneous instructions, where, as here, there is no actual misdirection of the jury in the instruction complained of. We must remember the command of the statute: "2. No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action." Section 512.160, R.S.Mo. 1949.
The judgment of the trial court herein should be affirmed. It is so ordered.
ANDERSON, P. J., and BENNICK, J., concur.