Opinion
No. 42645.
April 14, 1952.
Plaintiff pedestrian was struck on the highway at night by defendant's automobile. There was a submissible humanitarian case that defendant should have seen plaintiff in time to avoid striking him. There was a verdict for defendant, but the trial court had the discretion to grant plaintiff a new trial because defendant's burden of proof instruction contained the phrase "to the reasonable satisfaction of the jury". It was improper to give both a converse humanitarian instruction and a sole cause instruction submitting the same theory.
1. NEGLIGENCE: Motor Vehicles: Pedestrian Struck on Highway: Submissible Humanitarian Case. There was a submissible humanitarian case that defendant should have seen plaintiff pedestrian "trotting" down the highway in time to have avoided striking him.
2. TRIAL: New Trial: Burden of Proof Instruction: Discretion of Trial Court to Grant New Trial. The trial court had discretion to grant a new trial because of a burden of proof instruction containing the words "to the reasonable satisfaction of the jury".
3. NEGLIGENCE: Trial: Two Instructions on Same Theory Improper. It was improper to give both a converse humanitarian instruction and a sole cause instruction submitting the same theory.
Appeal from Cape Girardean Circuit Court; Hon. R.B. Oliver, III, Judge.
AFFIRMED.
Ward Reeves and Finch Finch for appellant.
(1) Our first contention in this case is that no case for a jury was made under the humanitarian doctrine. Under the evidence most favorable to the plaintiff there is no sufficient substantial evidence to show that the plaintiff was in a position of imminent peril and was apparently oblivious to his danger and that such peril and obliviousness could have been discovered in time to prevent defendant's automobile colliding with plaintiff. Plaintiff's Instruction 1 is based upon the theory that plaintiff was oblivious of his danger. Baecker v. Railway, 240 Mo. 507; Pritt v. Terminal Railroad Assn., 359 Mo. 896, 224 S.W.2d 119; Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33; Pentecost v. St. Louis Merchants B. Terminal Railroad Co., 334 Mo. 572, 66 S.W.2d 533; Bibb v. Grady, 236 Mo. App. 271, 231 S.W. 1020. (2) Plaintiff's evidence is so self-contradictory and confusing as to render it of no probative value as to where he was when he became in a position of imminent peril and apparently oblivious of danger. His testimony that he repeatedly looked behind him as he trotted along the highway, but did not see the defendant's approaching automobile, is contrary to the physical facts and also shows if substantial that the defendant had no reason to think plaintiff was oblivious. Pritt v. Terminal Railroad Assn., 359 Mo. 896; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Sammons v. K.C. Public Serv. Co., 179 S.W.2d 620. (3) To permit a recovery by plaintiff under the evidence would be to allow a recovery on mere speculation, surmise or guess. Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Pritt v. Terminal Railroad Assn., 359 Mo. 896, 224 S.W.2d 119; Sammons v. K.C. Public Serv. Co., 179 S.W.2d 620. (4) Manifestly the defendant and his only eyewitness were in error in estimating distances. In the first place they took no account of reaction time, that is, the time required to take action after seeing a person or object on the highway. In many jurisdiction the courts take judicial notice in accordance with the speed chart as given in Volume 9. Blashfield's Cyclopedia of Automobile Law and Practice, Sec. 6237, p. 706, and Cumulative Pocket Part to same for 1951, Sec. 6237, p. 193, that this reaction time is ¾ of a second. The same chart shows that the distance a car will travel in ¾ of a second at 35 miles per hour is 38½ feet. The same chart shows that a car traveling at a rate of speed of 35 miles per hour can be stopped in 94 feet, which includes reaction time. Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870. (5) Defendant's Instruction 4 was a proper instruction in this case. It was the converse of plaintiff's instruction and also based on the defendant's evidence and the reasonable inferences which might be drawn therefrom. In considering this question, the evidence must be viewed in a light most favorable to defendant. Johnson v. Hurch Delivery Service, 353 Mo. 1207, 187 S.W.2d 200; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Wells v. Raber, 350 Mo. 586, 166 S.W.2d 1073; Colvin v. Mills, 360 Mo. 1181, 232 S.W.2d 961; Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775. (6) Instruction 5 was in proper form and contains all the necessary elements of a sole cause instruction under the holdings of this court. Steffen v. Ritter, 214 S.W.2d 28; Jansens v. Thompson, 360 Mo. 351, 228 S.W.2d 743; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Schlemmer v. McGee, 185 S.W.2d 806; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742. (7) The extent of the danger zone where a person in imminent peril should be seen by the one causing the injury, is a question for the jury. According to defendant's evidence and reasonable inferences the jury might draw therefrom, plaintiff was not in a discoverable perilous position until he staggered or moved toward the automobile from a position of safety. This issue was properly submitted in defendant's Instructions 4 and 5. Johnson v. Hurch Delivery Service, 353 Mo. 1207, 187 S.W.2d 200; Martin v. Efferien, 359 Mo. 1150, 225 S.W.2d 775. (8) The omission of the words "suddenly" and "directly" in Instructions 4 and 5 does not make them erroneous. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461. (9) Errors in estimates of time and distances in defendant's evidence cannot preclude defendant's defense, if the jury believe the ultimate fact as testified to by him and his sole eyewitness that he was unable to avoid injuring plaintiff after he placed himself in a position of imminent peril. Martin v. Efferien, 359 Mo. 1150, 225 S.W.2d 775. (10) Contradictions or errors in defendant's testimony appearing in a deposition and at the trial, are for the consideration of the jury. Martin v. Efferien, 359 Mo. 1150, 225 S.W.2d 775. (11) Since plaintiff's Instruction 1 limits the zone of imminent peril to the west 9 feet of the pavement (the southbound traffic lane), he is in no position to complain that defendant's Instructions 4 and 5 submitted a theory of widening the danger zone to include space to the west of the pavement, even though there was no direct evidence sufficient to show such widening. This part of the instruction is harmless, because the other part which limited the zone of imminent peril to plaintiff's position on the pavement is in accord with plaintiff's Instruction 1. The two parts of the instruction were conjunctively coupled and submitted to the jury. Plaintiff cannot complain that the instruction included a broader zone than plaintiff's instruction. Johnson v. Hurch Delivery Service, 351 Mo. 73, 171 S.W.2d 656. One of the grounds specified by the trial court for granting a new trial was the giving of defendant's Instruction No. 6. That instruction contains the clause with reference to the preponderance of evidence "to the reasonable satisfaction of the jury." We know that this court has frequently criticized an instruction containing this clause, but so far as we are advised neither this court nor any of the courts of appeal has held such instruction reversible error. Besides, this court in the first case cited below reversed the trial court for granting a new trial on account of the giving of a similar instruction. Flint v. Loew's Realty Amusement Corp., 344 Mo. 310, 126 S.W.2d 193; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742; Wolverton v. Kurn, 149 S.W.2d 62; Boyce v. Donnellan, 237 Mo. App. 63, 168 S.W.2d 120; Stephens v. Coca-Cola Bottling Co., 359 Mo. 453, 215 S.W.2d 50.
Web A. Welker for respondent.
(1) A case was made under the humanitarian doctrine. See excerpts of testimony in foregoing statement. Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440. (2) Instruction 4 given at request of defendant is not supported by any evidence, and the court's order granting a new trial was therefore proper. Noe v. Thompson, 173 S.W.2d 896; Thompson v. Boatmen's Bank, 347 Mo. 748, 148 S.W.2d 757. (3) Instruction 5 is predicated on a manifest impossibility. (4) Instruction 5 is erroneous because there is no basis for a sole cause instruction in this case and submits an obvious impossibility and contrary to all the evidence. Crews v. Kansas City Pub. Co., 111 S.W.2d 54; Dunn v. Alton R. Co., 104 S.W.2d 311. (5) Instruction 5 is also erroneous in that it assumes plaintiff was in a place of safety, and cannot be cured by a proper instruction. Glaser v. Rothchild, 221 Mo. 180, 120 S.W. 1; McCombs v. Ellsberry, 85 S.W.2d 135. (6) Instruction 6 is erroneous in that it places undue burden on plaintiff by requiring proof, "to the reasonable satisfaction of the jury," and that requirement is twice repeated. "It is certain . . ., that if a trial court should grant a new trial and assign as a reason therefor the giving of such an instruction this court will sustain the ruling." Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467; State v. Barton, 236 S.W.2d 596.
Plaintiff brought this suit to recover $20,000 as damages for personal injuries alleged to have been sustained through the negligence of the defendant. There was a verdict for the defendant. Plaintiff's motion for a new trial was sustained by the trial court. The grounds assigned by the court were errors in instructions 4, 5, and 6 given at defendant's request. From the order the defendant appealed.
The evidence showed the following to have occurred: At about eleven o'clock on the night of October 1, 1949, plaintiff was walking south on U.S. Highway 61 about a mile or so south of Portageville, Missouri. He was on his way home which was about three miles southwest of Hayti, Missouri. He testified that a car approached from the north and "I thumbed him and he said something about, `Do you want a ride?' I go down the edge of the highway some 10 or 15 steps and all at once my light went out like that." On further examination his testimony was as follows:
"Q. You were on the edge of the concrete?
"A. Yes, sir, trying to catch up with that car.
"Q. You were trotting south?
"A. Yes, sir."
Plaintiff explained that what he meant by "my light went out" was that he was rendered unconscious when he was struck by a car going south as he was trying to catch up with the car he had "thumbed" which he thought was stopping to let him ride. The evidence was that the roadway was dry and the weather clear.
It was admitted that it was defendant's car which collided with plaintiff. The defendant testified that as he was driving south at the point in question, a car with bright lights was approaching from the south; that he (the defendant) was driving at about 35 miles per hour; that he did not see plaintiff until he was about 8 or 10 feet away from him; that he then swerved to the left in an attempt to miss him. Note a portion of defendant's evidence:
"Q. At the time you swerved did you put on your brakes?
"A. I put on my brakes and swerved at the same time.
"Q. Tell the jury the position of the wheels of your car with reference to the black line at the time he hit the side of your car.
"A. I was astraddle the line. When I saw him I was on my right side, six, eight or ten feet — — he was right close. He appeared all at once. I don't know which way he come from. He was in motion as though it was an animal. I swerved away, whatever it was. When I swerved this car shot by and he hit the car door and I cut back and stopped."
Defendant further testified that when traveling at 35 miles per hour, he could stop within 15 to 20 feet. He admitted that he stopped within 75 or 80 feet.
The case was submitted to a jury solely on the humanitarian doctrine. The defendant urges that the evidence was insufficient to justify a submission of the case to a jury. The defendant cited a number [769] of cases in support of his contention. We need notice only one of them, Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33. In that case this case this court en banc said, 220 S.W.2d l.c. 34: "a defendant is liable for injuring a plaintiff if he sees him (or, where defendant is under a duty to keep a vigilant watch, should see him) in a position of imminent peril, in time, by the exercise of due care and with safety to himself and others, to avert the injury."
A jury in the present case could well have found that the defendant should have discovered plaintiff "trotting" down the highway in time to have averted injuring him. The point must be ruled against the defendant.
Instruction 6, on the burden of proof, the giving of which was deemed to be erroneous by the trial court, reads as follows:
"The Court instructs the jury that the charge laid by the plaintiff against the defendant in this case is one of negligence. Recovery may not be had on a charge of negligence except when such charge is sustained by the preponderance, that is, the greater weight of the credible evidence to the reasonable satisfaction of the jury.
"It does not devolve upon the defendant to disprove said charge, but rather the law casts the burden of proof in reference to said charge upon plaintiff and said charge of negligence must be sustained by the preponderance, that is, the greater weight of the credible evidence to the reasonable satisfaction of the jury. If, therefore, you find the evidence touching the charge of negligence against the defendant (,) `as submitted in these instructions' (,) does not preponderate in favor of the plaintiff, or is evenly balanced, then, in either event, plaintiff is not entitled to recover against the defendant and your verdict must be in favor of the defendant."
The giving of instructions containing such a phrase as "reasonable satisfaction" has been criticised by this court as casting a greater burden on a plaintiff than required by law. Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W.2d 58, l.c. 63 (12); Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, l.c. 694-696 (5); Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467, l.c. 472 (8); Seago v. New York Central R. Co., 349 Mo. 1249, 164 S.W.2d 336, l.c. 340, 341 (5, 6) (7, 8).
In the Seago case, supra, Division I of this court said: "What we have said of this instruction ought to be a sufficient warning to the bar and trial courts to observe the admonition in the Rouchene case, supra, as to burden of proof instructions."
In Johnson v. Dawidoff, supra, Division II of this court said: "It is certain, in view of what we have said, that if a trial court should grant a new trial and assign as a reason therefor the giving of such an instruction this court will sustain the ruling."
In a number of the above cases, the question of the correctness of instructions on the burden of proof was considered at length. Authorities and cases from other jurisdictions were cited. We demonstrated that such phrases as "to the reasonable satisfaction of the jury," "beyond doubt," "to the satisfaction," and "however slightly" were generally held improper. For cases from other jurisdictions see 32 C.J.S. 1047, Sec. 1020; 20 Am. Jur., pp. 1100-1102, Sec's. 1249 and 1250; Heacock v. Baule, (Iowa) 249 N.W. 437, 93 A.L.R. 151.
Instructions 4 and 5 were given at defendant's request. Instruction 4 was a converse of plaintiff's instruction submitting humanitarian negligence. The theory of the defendant was that plaintiff moved from somewhere west of the pavement onto the pavement in front of defendant's car in such a manner that the defendant could not, in the exercise of the highest degree of care, have avoided a collision. We need not consider the correctness of this instruction except to say that the defendant was entitled to a converse instruction submitting his theory of the case. Such instructions to be authorized must be supported by evidence. By instruction 5 the defendant submitted to the jury the [770] question of whether plaintiff's negligence, if any, was the only negligence causing the collision. It was referred to as a sole cause instruction. Under the facts proven in this case, the defendant's theory could well have been submitted in a converse instruction. We see no need for two instructions submitting the same theory. The case of Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, cited by the defendant, presents the views of this court on the question of so called "sole cause" instructions.
The order of the trial court granting a new trial is hereby affirmed and the cause remanded. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.