Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d l.c. 58. (2) The instruction wholly fails to hypothesize facts which exclude negligence of the defendant in the manner charged in the petition, and submitted by plaintiff's principal instructions. Bootee v. Kansas City Pub. Serv. Co., 353 Mo. 716, 183 S.W.2d 892; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289; Hopkins v. Highland Dairy Farms Co., 349 Mo. 1158, 159 S.W.2d 254; Reiling v. Russell, 348 Mo. 279, 134 S.W.2d l.c. 38. (3) This Instruction A here before us does not require the jury to find that the plaintiff's injury was not due to any negligence on the part of the defendant. This omission is fatally defective.
(2) Said instruction is a mere abstract statement of law, and does not hypothesize specific facts excluding defendant's negligence and justifying a verdict for defendant on the theory that plaintiff's negligence was the sole cause of his injuries. State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Semar v. Kelly, 176 S.W.2d 289, 352 Mo. 157; Stanich v. Western Union Telegraph Co., 348 Mo. 188, 153 S.W.2d 54; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Carson v. Evans et ux., 351 Mo. 376, 173 S.W.2d 30; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60. (3) Said instruction erroneously hypothesized defendant's duty under the humanitarian doctrine and is confusing and misleading. Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33; Gray v. Columbia Terminal Co., 331 Mo. 73, 52 S.W.2d 809; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440. (4) The trial court erred in admitting hearsay evidence offered by the defendant, consisting of hospital records of the Bell Memorial Hospital, now the University of Kansas Hospital, located in the State of Kansas, purporting to relate to treatment and examinations of the plaintiff. Secs. 9777, 1825, R.S. 1939; Allen v. American Life Acc.
judicial in that the evidence did not warrant the giving of a sole-cause instruction, because the plaintiff and all of her witnesses testified that when their automobile came over the crest of the hill, on their right or east side of January Avenue, moving from 20 to 25 miles per hour, the automobile of the defendant immediately before the collision was approximately 100 feet ahead of their automobile, moving from 30 to 35 miles per hour, and on their, or the east, side of January Avenue, and, therefore, on his wrong side of the street. Therefore, the alleged speed of the automobile in which plaintiff was riding as a guest, as mentioned in said instruction, was neither the sole cause nor the proximate cause, because, irrespective of its speed, there would have been no collision except for his being on the wrong side of January Avenue. Long v. Mild, 149 S.W.2d 853; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Shields v. Keller, 153 S.W.2d 60; Schroeder v. Rawlings, 155 S.W.2d 189; Hopkins v. Highland Dairy Farms, 159 S.W.2d 254; Fassi v. Schuler, 159 S.W.2d 774; Seago v. N.Y. Cent. R. Co., 164 S.W.2d 336; Lewis v. Zagatta, 166 S.W.2d 541; Boyce v. Donnellan, 168 S.W.2d 120; Jurgens v. Thompson, 169 S.W.2d 353. [289] BARRETT, C.
(1) Instructions Nos. 1 and 2 given by the court below at the request of defendant are not erroneous because they failed to advise the jury that the negligence of John Carson could not be imputed to Ruth Carson, appellant in this case. Such requirements in a sole-cause instruction are no longer necessary under the laws of this State. Hopkins v. Highland Dairy Farms, 159 S.W.2d 254; Long v. Mild, 149 S.W.2d 853; Shields v. Keller, 153 S.W.2d 60; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Seago v. New York Central R. Co., 164 S.W.2d 336. (2) In determining whether instructions 1 and 2, given by the court below at the request of defendant, fail to hypothesize facts in evidence, or whether it is supported by the evidence, depends on the defendant's evidence, and not the plaintiff's evidence. And in passing on said instructions, both of them being sole-cause instructions, the court will look to the evidence most favorable to defendant.
Gandy v. St. Louis-S.F. Railroad Co., 44 S.W.2d 634; State ex rel. Central Coal Coke Co. v. Ellison, 195 S.W. 722, 270 Mo. 645; Kitchen v. Schlueter Mfg. Co., 20 S.W.2d 676; Krelitz v. Calcaterra, 33 S.W.2d 909. (7) Instructions P-2, P-3, and P-4 were erroneous in submitting to the jury that "if you find that at the time of said accident the said Ora A. Brinkley was exercising the highest degree of care for his own safety," as such did not require the finding of any specific facts but gave the jury a roving commission. Shields v. Keller, 153 S.W.2d 60. (8) Instruction P-2 authorized a recovery against the Shell defendants if the weather and atmospheric conditions rendered the use of the highway dangerous, or if such conditions concurred with the negligence of the Biscuit Company defendants, and caused Brinkley's death. Hopkins v. Highland Dairy Farm, 159 S.W.2d 254; Authorities (11), post. (9) The evidence that no lights had been put out on the highway by the drivers of the defendants' trucks was inadmissible and defendants' objections to such evidence should have been sustained. Sec. 8385, R.S. 1939. (10) Instruction P-5 referred the jury to the pleadings for the issues and without directing the jury's attention to the instructions on contributory negligence offered by defendants, or without hypothesizing any facts constituting contributory negligence, and such was erroneous.
(2) Instruction No. 2 was a valid and proper instruction and did sufficiently hypothesize facts which would tend to show that the respondent was free from negligence and warranted the jury in finding that the locking of the steering wheel was the sole cause of appellant's injuries. Shields v. Keller (Mo.), 153 S.W.2d 60; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Doherty v. St. Louis Butter Company, 339 Mo. 996, 98 S.W.2d 742; Hopkins v. Highland Dairy Farms (Mo.), 159 S.W.2d 254; Cantwell v. Cremins (Mo.), 149 S.W.2d 345. (a) In any event, plaintiff is not in a position to raise this question because he submitted the question of the locking of the steering wheel to the jury in his own instruction on a similar theory as the defendant. State ex rel. Brosnahan v. Shain, 344 Mo. 404, 126 S.W. 1193; Phillips v. E. St. L. Ry. Co. (Mo.), 226 S.W. 863; Crews v. K.C.P.S. Co., 341 Mo. 1091, 111 S.W.2d 54. (3) Instruction No. 3 was a valid and proper instruction and has been approved many times by the appellate courts of this State. Doherty v. St. Louis Butter Company, 339 Mo. 996, 98 S.W.2d 742; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562.
(11) This sole cause instruction did not hypothesize any facts to negative the essential elements of defendant's duty, so as to demonstrate that the negligence of the defendant was not a concurring cause of the collision. Bootee v. Kansas City Pub. Serv. Co., 353 Mo. 716, 183 S.W.2d 892; Lewis v. Zagatta, 350 Mo. 446, 166 S.W.2d 541; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Long v. Wild, 347 Mo. 1002, 149 S.W.2d 853; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33; Schroeder v. Rawlings, 344 Mo. 30, 127 S.W.2d 678; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; McGrath v. Myers, 341 Mo. 412, 107 S.W.2d 792; Hillis v. Rice, 151 S.W.2d 719; Zimmerman v. Salter, 141 S.W.2d 137; Steffen v. Ritter, 214 S.W.2d 28; Weis v. Melvin, 219 S.W.2d 310. J.W. Grossenheider for respondent.
(3) The converse conjunctive clause submitting whether the collision was caused by the negligence of defendant under the humanitarian doctrine did not submit whether defendant was negligent, and was insufficient to "cure" the error demonstrated. Connole v. East St. Louis S. Ry. Co., 340 Mo. 690, 102 S.W.2d 581; Bootee v. K.C. Public Serv. Co., 353 Mo. 716, 183 S.W.2d 892; Lewis v. Zagatta, 350 Mo. 446, 166 S.W.2d 541; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853. (4) This instruction unduly limited the zone of peril to the actual path of the streetcar, referring to the conduct of the deceased in driving onto the tracks when it was so near that he should have known a collision was likely to occur.
It was reversible error to refuse this instruction. Johnson v. Dawidoff, 177 S.W.2d 467; Bashkow v. McBride, 177 S.W.2d 637; Broderick v. Brennan, 170 S.W.2d 686; Hopkins v. Highland Dairy Farms, 159 S.W.2d 254; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Bronson v. Abernathy, 130 S.W.2d 562, 344 Mo. 1171; Mendenhall v. Neyer, 149 S.W.2d 366, 347 Mo. 881; Jurgens v. Thompson, 169 S.W.2d 353; Shields v. Keller, 153 S.W.2d 60, 348 Mo. 326; Doherty v. St. Louis Butter Co., 98 S.W.2d 742, 339 Mo. 996; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Boyce v. Donnellan, 168 S.W.2d 120. (3) The evidence tended to show that plaintiff suddenly ran closely in front of the westbound streetcar and into the path of defendant's automobile; that defendant didn't see and could not, by the exercise of the highest degree of care, have seen plaintiff in time to have avoided striking him.
(1) The appeal is vexatious. Fawkes v. Natl. Refining Co., 341 Mo. 630, 108 S.W.2d 7; Murphy v. Kroger Baking Co., 171 S.W.2d 610. (2) There was no contributory negligence on the part of the plaintiff. Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Miller v. Clark, 109 F.2d 677. (3) Pattison-McGrath's demurrer was properly overruled. Zimmerman was driving within the scope of his employment.