Collins v. Beckmann
| Decision Date | 05 March 1935 |
| Docket Number | 32578 |
| Citation | 79 S.W.2d 1052 |
| Parties | COLLINS v. BECKMANN |
| Court | Missouri Supreme Court |
J. S Gollub and John Grossman, both of St. Louis, for appellant.
Walter Wehrle, of Clayton, for respondent.
COOLEY, Commissioner.
Plaintiff sued to recover damages on account of the death of her husband, William Collins, resulting from a collision between an automobile driven by plaintiff, in which Mr. Collins was a passenger, and an automobile driven by defendant. In a second count of the petition plaintiff asked damages for personal injuries to herself. That count was dismissed at the close of the evidence and the case was submitted to the jury only upon the first count. The jury returned a verdict for the defendant, from judgment on which the plaintiff appealed.
The collision occurred at night at the intersection of Carondelet avenue, an east and west street, and Central avenue, a north and south street, in Clayton, Mo. Plaintiff was driving westward in Carondelet avenue and defendant southward in Central avenue. Defendant's car struck the rear end of plaintiff's car on the right side, the side on which Mr Collins was sitting. The door on that side was thrown open by the impact, and Mr. Collins was thrown out and under the wheels of defendant's car, receiving injuries from which he died eight days later.
Plaintiff's evidence tends to show that at the time of the collision the streets were wet and slippery from falling rain; that she had stopped at the east side of Central avenue before starting across the intersection; that she saw the headlights of defendant's car in Central avenue a hundred feet or so north of the intersection; that she started across the intersection, driving slowly and carefully with her car in first, or low, gear, and was struck by defendant's car at a point just west of the west street car track in Central avenue and slightly north of the middle line of Carondelet avenue; that after starting across the intersection she did not notice defendant's car until it was almost upon her: She said that her car was knocked to the southwest, turned partially around, and came to rest facing northeast and with its rear end against a lamp post at the southwest corner of the intersection. She estimated the speed of defendant's car at about twenty miles an hour at the time she first saw it. A witness for defendant testified: 'He put his brakes on after the collision.' Plaintiff's evidence tended to show that defendant's car, going at twenty miles an hour under the existing conditions, could have been stopped with the means at hand and with safety to the passengers, in twenty to twenty-five feet, and, if going fourteen miles an hour, in twelve to fifteen feet.
Defendant testified that he was driving fourteen or fifteen miles an hour and could have stopped in a very short space, 'probably we could stop within a half foot or a foot in that spot.' He testified that he could see a hundred feet to the east in Carondelet avenue, but did not see plaintiff's car until it was almost in front of him; that the collision occurred south of the middle line of Carondelet avenue, and that plaintiff 'must have gone at the rate of speed of thirty-five to forty miles an hour; it just happened like a flash.'
The foregoing is a sufficient outline of the facts for the purpose of this appeal. Plaintiff's petition contained several specifications of primary negligence, and also charged negligence under the humanitarian doctrine. Her case was submitted to the jury on one specification of primary negligence, viz., negligent failure of the defendant to drive his car in a careful and prudent manner and at a rate of speed so as not to endanger other persons, particularly plaintiff's husband; and negligence under the humanitarian rule. It is not contended that there was not sufficient evidence to take the case to the jury on both issues. The errors assigned relate to instructions given on behalf of the defendant.
At the request of defendant, the court gave two instructions, No. 9 and No. 10, on the subject of burden of proof, reading as follows:
'9. The Court instructs the jury that negligence is not presumed in this case, from the mere happening of the event, and the burden of proving negligence rests upon the party alleging it, and before plaintiff can recover on her cause of action, she must prove negligence on the part of defendant by a greater weight or preponderance of the evidence, and in this case, if the jury find the weight of the evidence on the question of defendant's negligence is in favor of defendant, or that it is equally balanced, then plaintiff cannot recover on her cause of action, and your verdict must be for the defendant.
Instruction No. 9 is not criticized. No. 10 is complained of because of the words we now italicize in the concluding sentence: 'If, therefore, you find the evidence touching the charge of negligence against defendant to be evenly balanced, or the truth as to the charge of negligence against defendant remains in doubt in your minds, after considering the evidence, your verdict must be for the defendant.'
In Payne v. Reed, 332 Mo. 343, 353 et seq., 59 S.W.2d 43, 47, 49, an instruction substantially the same as said instruction No. 10 was condemned by Division 1 of this court because of a similar concluding sentence. The court held that said concluding sentence was equivalent to telling the jury that if on the whole evidence there remains a reasonable doubt in the minds of the jury as to defendant's guilt of negligence the jury must give him the benefit thereof and find for him, which is not the rule in civil cases. The court criticized but distinguished certain prior decisions which apparently approved somewhat similar instructions, and concluded by saying: 'We are not holding that the trial court, in the light of our previous rulings, should have granted a new trial for error in giving this instruction, if no other error appeared, but we do say that the instruction gives defendant all he is entitled to without adding the objectionable clause, and that on another trial the instruction should be framed accordingly.'
In Aly v. Terminal Railroad Association, 78 S.W.2d 851, 855, not yet reported [in state reports], we had to deal with a similar instruction almost identically worded and containing a similar concluding sentence. We there said:
We held that the giving of the instruction constituted reversible error, citing authorities in support of the holding. We adhere to that ruling.
Respondent argues that the instructions must be read and construed together, and that when said instructions 9 and 10 are so read and construed the error in No. 10 is cured; that the two, read together, clearly inform the jury that plaintiff is only required to prove her case by the greater weight of the evidence. We cannot agree with this contention. Of course the instructions must be read together. Instruction No. 9 tells the jury that negligence is not presumed, that plaintiff must prove it by the greater weight of the evidence, and that if the evidence preponderates in favor of the defendant or is evenly balanced plaintiff cannot recover and the verdict must be for the defendant. That instruction alone would have been a sufficient direction on the subject of burden of proof. If instruction No. 10 was designed to mean no more than No....
To continue reading
Request your trial