Gardner v. Turk

• Citation: 123 S.W.2d 158,343 Mo. 899
• Decision Date: 20 December 1938
• Docket Number: 35270
• Parties: Clarence Gardner and Vera Gardner, Appellants, v. Henry C. Turk
• Court: United States State Supreme Court of Missouri

123 S.W.2d 158

343 Mo. 899

Clarence Gardner and Vera Gardner, Appellants, v. Henry C. Turk

No. 35270

Supreme Court of Missouri

December 20, 1938

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Affirmed.

F P. Sizer, H. T. Lincoln and Andrew Howard for appellants.

(1) The trial court erred in giving defendant's Instruction A because it is a lecture to the jury on its duty to the defendant, and stresses very strongly the jury's duty to defendant, but fails to cover the duty of the jury on the whole case, and for this reason should not have been given. Unterlachner v. Wells, 278 S.W. 83. The closing words of this instruction, "you must return your verdict for the defendant," have been held objectionable. Privett v. Jewett, 225 S.W. 129. It was error to give this instruction for the further reason that there was no ground or need for the jury to resort to mere surmise guesswork and speculation to find negligence on the part of defendant under the evidence in this case. Such an instruction was likely to cause the jury to guess and conjecture, when guessing and conjecture were not necessary. Peperkorn v. St. Louis Transfer Ry. Co., 154 S.W. 842. (2) The trial court erred in giving defendant's Instruction C for the reason that it instructed the jury that the law in cases similar to this does not authorize or permit allowance or recovery for bereavement, grief, or any mental anguish or suffering, when in this particular case at hand the plaintiffs were not asking for allowance or recovery for these things. Therefore, there was no occasion to give the instruction; it had no place in the instruction, and should not have been given. Instructions should be applicable to the pleadings. Koebel v. Tieman Coal & Material Co., 85 S.W.2d 526; Vanderbeck v. Wabash Ry. Co., 133 S.W. 1178. (3) The trial court erred in giving defendant's Instruction D for the reason that this instruction casts upon the plaintiffs a greater burden of proof than the law requires by in effect telling the jury that plaintiffs must prove defendant's guilt of negligence beyond a reasonable doubt. Koebel v. Tieman Coal & Material Co., 85 S.W.2d 526; Sheehan v. Term. Ry. Assn., 81 S.W.2d 308; Aly v. Term. Ry. Assn., 78 S.W.2d 854; Dempsey v. Horton, 84 S.W.2d 623. This instruction is erroneous for the further reason that it places the entire burden of proof upon the plaintiffs without stating that the burden of proof on the issue of contributory negligence is on the defendant. Tappmeyer v. Ryckoff, 45 S.W.2d 891; Mott v. Chicago, R. I. & P. Ry. Co., 79 S.W.2d 1062. (4) The trial court erred in giving defendant's Instruction E for the reason that it tells the jury that it cannot find defendant guilty of any prior negligence or negligent speed claimed to have existed before he saw, or by the exercise of such care could have seen, decedent in peril, when as a matter of fact the defendant's own testimony was that he did not slacken his speed of about thirty-five miles an hour before he felt the shock to his car. The instruction was not in accord with the evidence and was confusing and misleading. Gundelach v. Compagnie Generale Transatlantic, 41 S.W.2d 2; Payne v. Reed, 59 S.W.2d 47; Cory v. Interstate Securities Co., 99 S.W.2d 862. (5) The trial court erred in giving defendant's Instruction F for the reason that it places too great a burden of care upon the plaintiffs and required that both parents should at the same time be exercising ordinary care. This instruction is not the law. Howard v. Scarritt Est. Co., 184 S.W. 1145; Winters v. Kansas City Cable Co., 99 Mo. 519. This instruction is erroneous for the further reason that there is no evidence of contributory negligence on the part of the plaintiffs. There must be evidence to support an instruction on contributory negligence. Brown v. St. Joseph, 171 S.W. 936; Zeller v. Wolf-Wilson Drug Co., 51 S.W.2d 885. (6) The trial court erred in not giving the plaintiffs' Instruction 4 because this instruction correctly states the law and without this instruction the jury was not fully instructed relative to the degree of care required by the law of the defendant in driving his automobile on the highways of this State. Sec. 7775, R. S. 1929; Lach v. Buckner, 86 S.W.2d 961.

Sam Wear, Cowgill & Popham and Guy Green, Jr., for respondent.

(1) The court did not err in giving respondent's Instruction A because the evidence was circumstantial leaving room for conjecture and speculation outside of the evidence and reasonable inferences therefrom and the giving of such cautionary instruction is wholly within the court's discretion. Larey v. M. K. T. Ry. Co., 64 S.W.2d 685; Derrington v. Southern Ry. Co., 40 S.W.2d 1074; Huss v. Heydd Bakery Co., 108 S.W. 67; Wolfson v. Cohen, 55 S.W.2d 681; Arnovitch v. Arky, 219 S.W. 620; Fuenfgeld v. Holt, 77 S.W.2d 147; Klinginsmith v. Mut. Benefit Assn., 64 S.W.2d 706; Shary v. Carthage, 5 S.W.2d 8; Coffey v. Carthage, 85 S.W. 535; Carvin v. St. Louis, 151 Mo. 345, 52 S.W. 213; Carle v. Akin, 87 S.W.2d 412; Linders v. People's Motor Bus Co., 32 S.W.2d 581; Oliver v. Morgan, 73 S.W.2d 995; Cole v. Uhlmann Grain Co., 100 S.W.2d 323; King v. Rieth, 108 S.W.2d 6; Connole v. E. St. L. Ry. Co., 102 S.W.2d 581. (2) The court did not err in giving defendant's Instruction C and any error therein would be immaterial because the jury found for defendant on the issue of negligence and is presumed not to have considered the damage instructions. Bennette v. Hader, 87 S.W.2d 417; Schaefer v. Ry., 128 Mo. 73; Feary v. St. Ry., 162 Mo. 75, 62 S.W. 458; Oliver v. Morgan, 73 S.W.2d 996; Gricus v. United Rys., 291 Mo. 589, 273 S.W. 763. (3) The trial court correctly gave defendant's Instruction D because (a) The instruction correctly set out the burden of proof resting upon plaintiffs. Wolfson v. Cohen, 55 S.W.2d 680; Oliver v. Morgan, 73 S.W.2d 993; Carl v. Akin, 87 S.W.2d 412. (b) Such burden of proof was limited to the sole issue of the defendant's negligence. Bleil v. Kansas City, 70 S.W.2d 913; Linders v. People's Motor Bus Co., 32 S.W.2d 591; Dietz v. Magill, 104 S.W.2d 710. (4) The trial court did not err in giving defendant's Instruction E because it properly restricted the issues to be determined under the last chance submission to the time, at and after peril arose. Mayfield v. K. C. So., 85 S.W.2d 116; Taylor v. Superior, etc., Co., 73 S.W.2d 187; Disano v. Hall, 14 S.W.2d 485; Cummings v. Holly, 60 S.W.2d 58; Fleming v. Bland, 15 S.W.2d 801; Todd v. Frisco, 37 S.W.2d 557; Carney v. C. R. I. & P. Ry. Co., 23 S.W.2d 1001. (5) The trial court did not err in giving defendant's Instruction F because it properly set out the degree of care required of deceased and his parents and was within the issues raised by defendant's answer and the evidence. Howard v. Scarritt Est. Co., 184 S.W. 1145; McGee v. Wabash, 114 S.W. 35; Rosenkranz v. Lindell Ry. Co., 18 S.W. 890; Livingston v. Wabash, 71 S.W. 136; Winters v. K. C. Cable Ry. Co., 12 S.W. 652; Payne v. C. & A. Ry. Co., 129 Mo. 405, 31 S.W. 887; Roland v. Anderson, 282 S.W. 753; Armstrong v. Kroger, 78 S.W.2d 570. (6) The trial court did not err in refusing to give plaintiffs' Instruction No. 4 because it was an abstract instruction and the duty therein set out was included in plaintiff's Instruction I. Humphreys v. Chicago, etc., Ry. Co., 83 S.W.2d 590; Lewis v. Kansas City Pub. Serv. Co., 17 S.W.2d 359; Birdsong v. Jones, 30 S.W.2d 1094; State ex rel. v. Hartman, 44 S.W.2d 169; Collins v. Quentin, 71 S.W.2d 758; McCarthy v. Bishop, 102 S.W.2d 126; Payne v. Ins. Co., 102 S.W.2d 732; King v. Rieth, 108 S.W.2d 1. (7) The trial court did not err in refusing to grant a new trial because the defendant conversed with two of the jurors and this assignment is insufficient to raise any question for review and the matter complained of does not appear in the bill of exceptions. Pence v. K. C. Laundry Service, 59 S.W.2d 633; Shouse v. Dubinsky, 38 S.W.2d 530; Murphy v. Bank, 49 S.W.2d 668; Lach v. Buckner, 86 S.W.2d 954; Feary v. St. Ry., 162 Mo. 75, 62 S.W. 452; Boyle v. Bunting Hardware Co., 238 S.W. 155. (8) Appellant's Point 8 is insufficient to raise anything for review and it is well settled that an appellate court will not consider an assignment that the verdict is against the weight of the evidence. Jackman v. St. Louis & H. Ry. Co., 231 S.W. 979; Glick v. Arink, 58 S.W.2d 717; Clark v. A. & E. Bridge Co., 62 S.W.2d 1082; Clay v. Owen, 93 S.W.2d 916; Bloch v. Kinder, 93 S.W.2d 933.

Cooley, C. Westhues, C., concurs; Bohling, C., absent.

OPINION

COOLEY

This action was brought by plaintiffs, Clarence and Vera Gardner, to recover damages for the death of their minor son, Eugene, aged eleven years, who it is claimed was struck and killed by defendant's automobile, driven by himself. There was a verdict and judgment for defendant, from which plaintiffs appealed. The questions presented by the appeal relate to the giving of certain instructions on behalf of defendant and the refusal of one requested by plaintiffs.

The petition alleges two specifications of negligence, viz.: Negligence under the humanitarian doctrine, in that defendant saw or by the exercise of the highest degree of care could and would have seen the deceased in a position of imminent peril in time thereafter to have avoided striking him; and that defendant negligently drove his car at a speed of more than twenty-five miles an hour in violation of an ordinance of Springfield, the city in which the accident occurred. The answer is a general denial coupled with a plea of contributory negligence. By plaintiffs' instructions both of their pleaded specifications of negligence were submitted to the jury.

Plaintiffs' evidence tended to show the following:

The Gardners lived at No. 1412 South...