Smith v. Star Cab Co.

• Citation: 19 S.W.2d 467
• Decision Date: 30 July 1929
• Docket Number: No. 28087.,28087.
• Parties: MAUDE SMITH, Appellant, v. STAR CAB COMPANY, Appellant, and JAMES TERRY.
• Court: Missouri Supreme Court

19 S.W.2d 467

MAUDE SMITH, Appellant, v. STAR CAB COMPANY, Appellant, and JAMES TERRY.

No. 28087.

Supreme Court of Missouri, Division One.

July 30, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

REVERSED AND REMANDED in part and AFFIRMED in part.

Earl M. Pirkey for appellant.

(1) Plaintiff has the right to inquire of the jury concerning their connections with the insurance company defending the case and this is true even if there are several defendants and but one carries insurance. Malone v. Small, 291 S.W. 163; Maurizi v. Coal & Mining Co., 11 S.W. (2d) 274; Jablonowski v. Cap. Mfg. Co., 279 S.W. 89; Snyder v. Electric Mfg. Co., 284 Mo. 312. Accordingly the court erred in preventing plaintiff from questioning the jurors on their voir dire concerning their connections with the insurance company representing defendant Terry. "A juror should be as white as paper and know neither plaintiff nor defendant, but judge of the issue merely as an abstract proposition upon the evidence produced before him. He should be superior even to a suspicion of partiality." Theobald v. Transit Co., 191 Mo. 428; Billmeyer v. Transit Co., 108 Mo. App. 6; Burton v. Phillips, 7 S.W. (2d) 713; McFall v. Ry. Co., 185 S.W. 1158. The fact that a juror says that he can and will try the case impartially does not qualify him. Theobald v. Transit Co., 191 Mo. 418; Vessels v. Light & Power Co., 219 S.W. 86; Schwartzman v. Fire Ins. Co., 2 S.W. (2d) 594; Gibney v. Transit Co., 204 Mo. 721. (2) Counsel are entitled to a reasonable time for argument. Stoecker & Price Storage & Auction Co. v. Cooper, 220 S.W. 972. Twenty-five minutes per side was not a reasonable time for argument. (3) An instruction which exonerates defendant if the negligence of some one else was the sole cause of the collision is incorrect. Boland v. Railway Co., 284 S.W. 145. Therefore Instruction 6 given for defendant Terry was incorrect. (4) "Contributed" implies that there is other negligence and the two caused the injuries and each contributed. Hof v. Transit Co., 213 Mo. 467. Instruction 7 required a verdict for defendant Terry if he was not guilty of negligence contributing to the collision. This requires his exonerating if he was guilty of negligence which solely caused the collision. Therefore Instruction 7 given for him was prejudicial and necessitates a reversal of the judgment in his favor.

W.E. Moser and Hensley, Allen & Marsalek for respondent.

(1) The court did not err in refusing plaintiff's counsel leave to examine the jury panel, on the voir dire, regarding an insurance company. The scope of such examination is a matter within the sound discretion of the trial court, and where, as here, the court in the exercise of his discretion is required to pass upon an issue of fact involving a number of circumstances, his decision should be upheld if it can be sustained as a reasonable conclusion upon the facts, even though a ruling to the contrary would not be error. State v. Brooks, 92 Mo. 574; Lindstroth v. Peper, 203 Mo. App. 278; Railroad Co. v. Contois (Tex.), 279 S.W. 929; Handy v. State (Md.), 60 Atl. 453; 35 C.J. 389. (2) The court did not err in telling the jury, by Instruction 6, that defendant Terry was not liable if the collision was solely caused by the dangerous rate of speed at which the taxicab was operated. Respondent was entitled to an affirmative submission of his theory of the case. Derrington v. City (Mo. App.), 186 S.W. 561; Boles v. Dunham (Mo. App.), 208 S.W. 480; Collins v. Rankin Farms (Mo. App.), 180 S.W. 1054; King v. Railroad Co., 211 Mo. 1. (3) Respondent's Instruction 7 was correct. It correctly told the jury that they should find for Terry if he was not guilty of any negligence contributing to the collision, as such negligence was defined in the other instructions. Evans v. Klusmeyer, 301 Mo. 352; Smith v. Mederacke, 302 Mo. 538; Bopp v. Mfg. Co. (Mo. App.), 299 S.W. 137. (4) The court did not err in limiting the time of argument to twenty-five minutes per side, thus allowing plaintiff twenty-five minutes and each of the defendants twelve and one-half minutes. State v. Page, 21 Mo. 257; Reagan v. Transit Co., 180 Mo. 117; Brickell v. Fleming (Mo.), 281 S.W. 957.

GANTT, J.

Action for damages in the sum of $15,000 for personal injuries. Plaintiff claims that while a passenger in a taxicab of the Star Cab Company she suffered injuries resulting directly from a collision of the cab with a car of defendant Terry, at the intersection of Washington and Channing avenues, in the city of St. Louis. The petition contains a charge of general negligence against the Cab Company and charges of specific negligence against Terry. The answers were general denials. Judgment was against the cab company for $2,000 and in favor of defendant Terry. Plaintiff appealed from the judgment in favor of Terry.

The evidence for plaintiff tends to show Terry was driving his automobile at a negligent rate of speed, and that he negligently failed to stop or turn his machine to avoid the collision. Instructions were given on these issues.

The evidence for defendant Terry tends to show the cab company's car was being driven at a negligent rate of speed.

Contributory negligence is not pleaded, there is no evidence of such negligence, and there is no claim by defendants that plaintiff was guilty of such negligence.

I. The court instructed the jury as follows: "The court instructs you that if you find and believe from the evidence that at the time and immediately prior to the collision mentioned in evidence the taxicab mentioned in evidence Sole was being operated at a rate of speed which was excessive Cause. and that said excessive and dangerous speed, if any, of said taxicab was the sole cause of said collision, then your verdict must be in favor of defendant Terry."

Plaintiff challenges this instruction and cites Boland v. Railway Company, 284 S.W. l.c. 145. In that case the following instruction was given:

"If you find and believe from all the evidence in the case that the collision between the passenger train and the automobile described in evidence was the result of the sole negligence of the driver of said automobile, then plaintiff is not entitled to recover against the defendant and your verdict must be for the defendant."

We criticized that instruction and there said: "Of course the defendant is not liable if its alleged negligence had nothing to do with bringing about plaintiff's injury. But the cryptic way in which this information was conveyed to the jury was calculated, not to enlighten, but to confuse."

That instruction does not inform the jury as to what would be negligence. They were left to determine the question for themselves. Furthermore, the plaintiff, a guest in the automobile, was charged by the defendant with contributory negligence; and the instruction did not inform the jury that the driver's negligence could not be imputed to the plaintiff. [Peppers v. Railway Company, 295 S.W. l.c. 761.]

In the instant case there is no issue of contributory negligence, and the instruction under review required the jury to find a negligent act of the driver to be the sole cause of the collision. The contention is overruled.

II. The court also directed the jury as follows: "The court instructs the jury that if you find and believe from the evidence that the defendant Terry was not guilty of any negligence contributing to the collision described Contributing in evidence, as such negligence, if any, is defined to Injury. in other instructions, then your verdict must be in favor of defendant Terry."

Plaintiff challenges the use of the word "contributing," and cites Hof v. Transit Co., 213 Mo. 445, 111 S.W. 1166. In that case the plaintiff was charged with contributory negligence, there was only one defendant, and there was no evidence "which tended to show there was any contributing cause to defendant's negligence which caused the injury except plaintiff's own negligence." For these reasons the use of the word "contributed" in the...