Cichacki v. Langton

• Citation: 392 S.W.2d 397
• Decision Date: 12 July 1965
• Docket Number: No. 50964,No. 2,50964,2
• Parties: Dorothy M. CICHACKI, Respondent, v. George LANGTON, Appellant
• Court: United States State Supreme Court of Missouri

Page 397

392 S.W.2d 397

Dorothy M. CICHACKI, Respondent, v. George LANGTON, Appellant.

No. 50964.

Supreme Court of Missouri, Division No. 2.

July 12, 1965.

Mason, Gant, Gepford & Moran, Kansas City, for respondent.

Lee D. Seelig, Kansas City, for appellant.

EAGER, Presiding Judge.

This appeal was taken by defendant from an order granting plaintiff a new trial for error in giving an instruction proffered by defendant. There is no evidence in our transcript, nor is there any stipulation concerning the evidence. The petition is one for damages for personal injuries because of an automobile collision; it was filed against three defendants but dismissed as to two at the beginning of the trial. It alleged, in substance: that plaintiff had been traveling northerly on Blue Ridge Road and was entering Winner Road to travel westerly, whereas defendant George Langton was driving a car westerly on Winner Road 'to to rear' of plaintiff; that defendant negligently overtook and collided with the rear of plaintiff's car. Several grounds of negligence were alleged, including negligently failing to keep a lookout, the negligent failure to yield the right of way, negligently colliding with the rear of plaintiff's car, and negligently failing to stop, slow or swerve. The prayer was for $15,500. The answer of two defendants, including the present appellant, consisted of denials, an admission that the streets were public streets in Kansas City, and a general plea of contributory negligence. The instructions are shown in full in the transcript.

Plaintiff submitted her case by two separate instructions numbered 2 and 3. In No. 2 she submitted that defendant 'failed to exercise the highest degree of care to keep a careful and continuous lookout for vehicles ahead of him, and 'particularly the automobile driven by Plaintiff,' and that he was thereby negligent. In No. 3 she submitted that plaintiff stopped in obedience to a stop sign controlling traffic on the ramp leading from Blue Ridge Road to Winner Road, that defendant, at a point approximately 100 feet east of that intersection, 'signalled his intention to make a right turn' but continued to drive on west on Winner Road and collided with plaintiff's car, and that defendant was thereby negligent.

The controverted instruction of defendant was as follows, being No. 7: 'The Court instructs the jury that if you find and believe from the evidence that the plaintiff in this case failed to stop at the stop sign at the entrance of Winner Road and Blue Ridge Road when approaching a through highway from the south and this was one of the causes of the said collision mentioned in the evidence then your verdict should be for the defendant.'

Since both parties hypothesized the fact that there was a stop sign at the intersection, we shall assume that there was, even on this vey 'skimpy' record. In his Instruction No. 6, defendant submitted contributory negligence of plaintiff in failing to keep a lookout. As already indicated, the verdict was for the defendant. In her motion for a new trial, plaintiff specifically attacked Instruction No. 7, both as a converse and as a contributory negligence instruction. The motion sufficiently raises the points which we discuss here. In granting a new trial, the court entered the following order: 'Plaintiff's Motion for a New Trial must be sustained for the reason that Instruction Number 7, offered by the defendant, is the converse of plaintiff's Instruction Number 3, in that it directs a verdict for defendant if the jury should find that plaintiff failed to stop at the stop sign. Said instruction completely disregards and fails to converse or otherwise refer to plaintiff's Instruction Number 2, which is a disjunctive submission of primary negligence and failure to keep a look-out. No other intruction was offered conversing plaintiff's instruction number Two.

'WHEREFORE, it is ordered, adjudged and decreed that plaintiff's Motion For A New Trial be sustained.'

Considerable confusion has arisen from appellant's brief and argument as to just what this instruction is. In other words, is it a converse instruction or a contributory negligence instruction? All of the cases cited in that brief involve converse instructions; in at least three places the statement is made that the instruction was a converse of one of the essential elements of plaintiff's theory. In two places it is stated that it was a mere contributory negligence instruction. In one sentence it is stated that it was a contributory negligence instruction and 'was a converse of one of the elements * * *.' At the oral argument counsel for appellant was asked most specifically what his theory was and he stated that it was a contributory negligence instruction and that he did not 'rely on it' as a converse instruction.

Actually, it makes little difference what the defendant's theory was; the ultimate question is whether the instruction was proper on either or any theory, or bad on both. We consider it from that standpoint. As a converse, the instruction is clearly erroneous. Defendant cites the following cases: Dell'Aria v. Bonfa, Mo., 307 S.w.2d 479; Liebow v. Jones Store Co., Mo., 303 S.W.2d 660; Fontana v. Davis, Mo.App., 382 S.W.2d 835; McCarty v. Milgram Food Stores, Inc., Mo., 252 S.W.2d 343. None of those cases involved situations where the plaintiff has submitted two or more grounds of negligence in the disjunctive. The principle quoted from Fontana, supra, to the effect that a defendant may converse one or more of the essential...