Engleman v. Railway Exp. Agency

• Decision Date: 05 January 1937
• Docket Number: 34188
• Parties: Margaret Louise Engleman, a Minor, by Next Friend, Alfred L. Engleman, v. Railway Express Agency, Inc., Defendant, Roy Mayes and Mrs. A. L. Staples, Appellants
• Court: Missouri Supreme Court

100 S.W.2d 540

340 Mo. 360

Margaret Louise Engleman, a Minor, by Next Friend, Alfred L. Engleman, v. Railway Express Agency, Inc., Defendant, Roy Mayes and Mrs. A. L. Staples, Appellants

No. 34188

Supreme Court of Missouri

January 5, 1937

Appeal from Buchanan Circuit Court; Hon. Ferd J Frankenhoff, Judge.

Reversed and remanded (with directions).

Culver Phillip, Kaufmann & Smith for appellants.

(1) Instruction J is not erroneous. It required the jury to find all of the facts which, if found, established that defendants were not guilty of the negligence charged or any negligence and in addition required the jury to find specific facts which, if found, established that the collision and plaintiff's injuries were due solely to the acts of the driver of the car in which she was riding, and the jury were instructed that the negligent acts or omissions of said driver were not imputable to the plaintiff. The case relied upon by the court as showing Instruction J is erroneous. Boland v. Ry. Co., 284 S.W. 141; Peppers v. Ry. Co., 316 Mo. 1104, put no such burden on the defendant and are distinguishable from the case at bar. Smith v. Star Cab Co., 323 Mo. 441; Blech v. Berzon, 61 S.W.2d 201; Geisendorf v. Brashear Truck Co., 54 S.W.2d 72; Schweig v. Wells, 27 S.W.2d 851. (2) The defendants had the right to have their theory of the case submitted to the jury in the same manner as the plaintiff had to have her case submitted. Borgstede v. Waldbauer, 88 S.W.2d 378. (3) Even if Instruction J were erroneous, the error was harmless and a new trial should not have been granted if the plaintiff made no case for the jury and the demurrers to the evidence offered by each defendant should have been sustained. Shelton v. Wolf Cheese Co., 93 S.W.2d 947; Chappee v. Lubite Refining Co., 85 S.W.2d 1036. (4) The plaintiff made no case for the jury. Plaintiff called as her witness the defendant Mayes and is bound by his testimony in the absence of any substantial evidence showing a state of facts that would establish the negligence charged. Walradt v. Ry. Co., 48 S.W.2d 95; Polkowski v. St. L. Pub. Serv. Co., 68 S.W.2d 888. (5) There was no substantial evidence to support the charge that defendant Mayes suddenly and without warning stopped the express truck in the traffic lane. The evidence of plaintiff contains an admission that she was not paying any attention to what was happening and did not know what the driver of the express truck did. The evidence of plaintiff's witness Davidson shows only that he did not see Mayes extend his arm, and that the reason that he did not see was because he was blinded by the sun; and it contains his admission immediately after the accident he admitted the reason he collided with the rear end of the express truck was that he was blinded by the sun. Such testimony does not constitute any substantial evidence contradicting the testimony of plaintiff's witness Mayes that as he entered the intersection he extended his arm, gradually slowed his car and drove it towards the curb, which evidence destroyed the charge of negligence made by the plaintiff.

Meyer & Imbersteg for respondent.

(1) Defendant's Instruction J is erroneous. It does not correctly declare the law. The jury was not instructed to find that Mayes' arm was held out a sufficient length of time, so as to give timely warning to a car following closely nor any explanation as to what timely warning is. Stermolle v. Brainard, 24 S.W.2d 712; Ritz v. Cousins Lbr. Co., 59 S.W.2d 1072. (2) Defendant's Instruction J failed to embrace the entire situation. Defendant instructed the jury that plaintiff is not chargeable with the acts or omissions of the driver of the automobile in which she was riding, but, failed to instruct the jury that the plaintiff is not chargeable with the negligent acts or omissions of the driver of the automobile in which she was riding in determining whether said driver's negligence, if any, was the sole and proximate cause of the collision. Peppers v. Ry. Co., 295 S.W. 757; Watts v. Mousette, 85 S.W.2d 487. (3) Defendant's Instruction J is misleading, confusing and gives the jury a roving commission to find on any theory of negligence and does not in this instruction or in any other instruction define what is negligence. Boland v. Ry. Co., 284 S.W. 145; Stermolle v. Brainard, 24 S.W.2d 712. (4) Defendant's Instruction J did not include all necessary elements of defendant's own case, its inclusion or part of same in plaintiff's instruction will not cure the error, but rather submits two diverse theories which creates a conflict. Fleming v. McMahon Const. Corp., 45 S.W.2d 952; State ex rel. Long v. Ellison, 199 S.W. 984; Wasson v. Sedalia, 236 S.W. 399; Ross-Saskatoon Lbr. Co. v. Turner, Dennis & Lowry Lbr. Co., 253 S.W. 119. (5) Where the negligent acts or omissions of two or more persons concur and contribute to cause an injury, all persons who so contribute to cause the injury are liable to the person injured. If the truck driver was negligent, defendant would not be absolved if he also was negligent and his negligence contributed to cause plaintiff's injury. Felts v. Spesia, 61 S.W.2d 402. (6) Defendant's Instruction J did not instruct the jury to find that Mayes held out his arm at an angle above horizontal so that it could have been seen by the driver of the car in which the plaintiff was riding. It does not follow the language of the statute which requires that an operator or driver of a motor vehicle intending to turn his vehicle to the right shall extend his arm at an angle above horizontal so that the same may be seen at the rear of the vehicle. Nor was the jury instructed to find that the defendant kept his truck as close to the right hand side of the highway as practicable. Sec. 7777, R. S. 1929; Wilson v. Blick, 60 S.W.2d 673.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Action to recover $ 25,000 for personal injuries. A trial to a jury resulted in a verdict for the defendants. Motion for a new trial was filed and sustained as to defendants, Mayes and Staples, but overruled as to defendant, Railway Express Agency, because the court was of the opinion that the peremptory request of the express company for a directed verdict, at the close of the whole case should have been given. Defendants, Mayes and Staples, appealed from the order granting a new trial as to them.

Plaintiff, about ten years old at the time, August 14, 1933, was injured when the truck in which she was riding as a guest ran into the rear of the express truck on East Third Street in Maryville, Missouri. Mrs. Staples was the express agent at Maryville and owned, maintained and operated the truck known as the express truck. Mayes was employed by Mrs. Staples and was driving the express truck at the time. Plaintiff's father was a florist in Maryville and owned the truck in which plaintiff was riding when injured. The express truck and the florist truck, both traveling west on East Third Street, were returning from the depot in Maryville about five-thirty P. M. The express truck was in front and until just prior to the impact, the florist truck, driven by an employee of Mr. Engleman, was about twenty-five or thirty feet behind the express truck, and both trucks were traveling about twenty-five miles per hour. Defendant Mayes, driving the express truck, had a bundle of papers, received at the depot, which he intended to deliver to Eugene Still, a newsboy, and he expected to see Gene somewhere along East Third Street. Gene was on the north side of East Third Street just west of the intersection of East Third and Saunders Street, and Mayes says that he did not know there was a vehicle to his rear; that he put out his left arm, slowed up and pulled towards the north side of the street, intending to throw out the bundle of papers without stopping, and that the florist truck ran into the rear of his truck.

Several acts of negligence are alleged, but we do not think it is necessary to deal especially with the pleadings. The separate answer of the express agency and the joint answer of Mayes and Staples were general denials.

The trial court granted plaintiff a new trial as to defendants, Mayes and Staples, on the ground that error had been committed in giving Instruction J requested by defendants. Appellants contend that Instruction J was proper, but if not, that there was no substantial evidence to support submission as to them, and that even though Instruction J be erroneous, the court should not have granted the new trial as to them. If Instruction J is not erroneous then it will not be necessary to detail the evidence.

Instruction J is as follows: "The court instructs the jury that while plaintiff is not chargeable with the acts or omissions of the driver of the automobile in which she was riding still, if you find from the evidence that the defendant, Roy Mayes, was driving an automobile truck crossing the intersection of Saunders Street and East Third Street, and that as he entered the 500 block he held out his arm and then slowed down the truck and was driving it gradually towards the north side of East Third Street, and while so doing, the driver of the truck in which plaintiff was riding caused or permitted said truck to collide with the rear of the truck which Roy Mayes was driving without any negligence on the part of Mayes (if you so find), and if you further find that said collision was caused solely by the fact, if you find it to be a fact, that the sun temporarily blinded the driver of the truck in which plaintiff was riding, or solely by the fact, if you find it to be a fact, that the driver of the truck in which plaintiff was riding caused or permitted it to collide with the rear of the truck while he was getting out of the way of or...