Annin v. Jackson

• Citation: 100 S.W.2d 872,340 Mo. 331
• Decision Date: 05 January 1937
• Docket Number: 33887
• Parties: Alice Annin v. Dorothy Jackson, Appellant
• Court: United States State Supreme Court of Missouri

100 S.W.2d 872

340 Mo. 331

Alice Annin v. Dorothy Jackson, Appellant

No. 33887

Supreme Court of Missouri

January 5, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Fred E Mueller, Judge.

Reversed and remanded.

William R. Schneider for appellant.

(1) The skidding of an automobile not being presumptive of negligence on the part of the defendant driver, and there being no evidence relative to the rate of speed at which an automobile is presumed to be likely to skid, if it is on a wet straight, level, good macadam road, with no other traffic on it, plaintiff did not make a case for the jury, and the demurrer at the close of the whole case should have been sustained. Heidt v. Peoples Motor Bus Co., 219 Mo.App. 683, 284 S.W. 840; Polokoff v. Sanell, 52 S.W.2d 443; Story v. Peoples Motor Bus Co., 327 Mo 719, 37 S.W.2d 900; Hatch v. Robinson, 99 Pa. 141; Peters v. United Electric Rys. Co., 165 A. 773; Bartlett v. Town Taxi, 263 Mass. 215, 160 N.E. 797; Simpson v. Jones, 284 Pa. 597; Byron v. O'Connor, 153 A. 809; Tucker v. San Francisco, 290 P. 924; Springs v. Doll, 197 N.C. 240, 148 S.E. 251; Klein v. Beeten, 169 Wis. 385, 172 N.W. 736; McLain v. Railroad Co., 140 Minn. 35, 167 N.W. 349. (2) The plaintiff's theory of defendant's negligence convicts plaintiff of contributory negligence as a matter of law. Both being experienced drivers, if plaintiff knew it was not safe to drive on a straight, level wet macadam road, free from traffic, at twenty-five to thirty miles an hour, if it was not safe, and plaintiff admittedly did not protest or warn the defendant, then her proof of defendant's alleged negligence, also ipso facto, constitutes proof of plaintiff's contributory negligence as a matter of law. Fechley v. Springfield Traction Co., 119 Mo.App. 358, 96 S.W. 423; Lord v. Delano, 188 S.W. 93; Burton v. Prior, 198 S.W. 1117; 42 C. J., sec. 948, p. 1171. (3) The giving of plaintiff's Instruction 1 was error: (a) Because it was broader than the evidence, in that it assumed without evidence, and contrary to common knowledge, that an automobile can be readily and reasonably stopped or swerved or the speed thereof slackened on the appearance of danger, which appearance of danger in the case at bar was when the automobile began to skid. (b) Instructions must not be broader than the evidence or unwarrantedly assume facts. Arkla Lbr. & Mfg. Co. v. Quellmalz Lbr. & Mfg. Co., 252 S.W. 968. (c) A skidding car is out of the driver's control and the instruction erroneously assumes that failure to control it is negligence. Tucker v. San Francisco, 290 P. 924. (d) The instruction is erroneous because based upon the erroneous assumption that skidding is evidence of negligence, since under the evidence in the case at bar, the "appearance of danger" was when the automobile began to skid. Cases cited under Point (1). Car may start to skid at very slow speed, and applying brakes is not evidence of negligence. Byron v. O'Connor, 153 A. 809. A speed of twenty-five or thirty miles on a wet street, when car begins to skid, is no evidence of negligence. Hatch v. Robinson, 99 Pa. 141; Simpson v. Jones, 284 Pa. 596. (4) Plaintiff and defendant both having the same opportunity to observe the alleged dangerous conditions under which they were driving, both being experienced drivers, plaintiff having admittedly not protested and having admittedly ample opportunity to do so, the evidence, if any, which proved the defendant guilty of negligence ipso facto proved the plaintiff guilty of contributory negligence and hence the verdict for the plaintiff was against the uncontradicted evidence and the law as set out in defendant's Instructions 5, 6 and 8 and the motion for new trial should have been sustained. Fechley v. Springfield Traction Co., 119 Mo.App. 358, 96 S.W. 423; Lord v. Delano, 188 S.W. 93; Burton v. Prior, 198 S.W. 1117; 42 C. J., sec. 948, p. 1171.

Kenneth Teasdale for respondent.

(1) If a defendant drives an automobile at thirty to thirty-five miles an hour on a wet, slippery highway, without having the car under control, and without knowing the distance in which it could be stopped on dry (let alone smooth-surfaced, slippery) roads, after having the warning of a previous loss of control and skidding earlier in the journey, so that the car skids 125 feet, leaves the road and strikes an object off the road, injuring a passenger, a case is made for the jury, on the driver's failure to exercise the highest degree of care in driving and operating and controlling the car. Tabler v. Perry, 85 S.W.2d 477; Allison v. Dittbrenner, 50 S.W.2d 199; Carlton v. Stanek, 38 S.W.2d 505; Melican v. Whitlow Const. Co., 278 S.W. 361; Cox v. Reynolds, 18 S.W.2d 575; Hall v. Wilkerson, 84 S.W.2d 1063; Cotton v. Ship By Truck Co., 85 S.W.2d 80; Heyde v. Patten, 39 S.W.2d 813; Davis v. Brown, 267 P. 754; Carnahan v. Motor Transit Co., 65 Cal.App. 402, 224 P. 143; Ortwein v. Droste, 191 Ky. 17, 228 S.W. 1028; Mackenzie v. Oakley, 94 N. J. L. 66, 108 A. 771; Loftus v. Pelletier, 223 Mass. 63, 111 N.E. 712. (a) In order for the jury to find the appellant negligently failed to have the car under control, it is not necessary that the speed be such as to violate a statute or an ordinance on the subject and be negligence per se. Ginter v. Donough, 179 S.W. 732; Wilmore v. Holmes, 7 S.W.2d 410; Denny v. Randall, 202 S.W. 602; Alley v. Wall, 272 S.W. 999. (2) An invited guest riding at the urgent solicitation of the driver under the facts existing in this case is not contributorily negligent as a matter of law. Authorities under Point (1). Rosenstein v. Lewis Auto Co., 34 S.W.2d 1023; Kaley v. Huntley, 63 S.W.2d 21; Wilmore v. Holmes, 7 S.W. 410; Boyd v. Kansas City, 237 S.W. 1001; Beall v. K. C. Rys., 228 S.W. 834; Statler v. Railroad Co., 200 Mo. 106. (a) Contributory negligence may not be attributed to a guest for failing to warn the defendant of danger of which defendant is aware. 42 C. J., pp. 1173, 1174; Corn v. Railroad Co., 228 S.W. 78. (3) The test as to negligence of a driver is more severe than the test applicable to a passenger. The driver is required to exercise the highest degree of care for the safety of the passenger. The passenger is required to exercise only ordinary care for her own safety. Kaley v. Huntley, 63 S.W.2d 21; Melican v. Whitlow Const. Co., 278 S.W. 361; Alley v. Wall, 272 S.W. 999; Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W.2d 471.

OPINION

Hays, J.

Alice Annin recovered a verdict for $ 8000 as damages for personal injuries sustained by her while riding as a guest of Dorothy Jackson in an automobile being driven by the latter. Defendant has appealed from the judgment rendered pursuant to the verdict.

The appeal presents questions of error mainly in the denial of appellant's request for a directed verdict at the close of all the evidence, and error in the giving of a certain instruction for respondent on the merits of the case. As there is no substantial dispute over the determining facts in evidence we detail them mainly as the appellant's counsel has stated them.

The injury was received early in the afternoon of October 25, 1932, at a point on Florissant Road in St. Louis County. The respondent resided in University City. She and the appellant, former college mates, had latterly been members of the same bridge club, and from time to time had gone to the club's meetings together; sometimes in respondent's car, sometimes in appellant's. Both were experienced drivers. On the occasion in question, pursuant to invitation extended the respondent by appellant to accompany her to a bi-weekly meeting of their club at Ferguson, the appellant drove her car to the residence of respondent, in University City, whence they proceeded over paved roads and streets, in said car, to Florissant Road, a highway between 25 and 30 feet in width and smooth-surfaced with macadam. It had rained in the forenoon and it continued to rain throughout their journey.

The appellant testified that throughout their course of travel which led to where the accident in suit occurred she was driving at a speed of twenty-five or thirty miles an hour that nothing unusual happened on the way, save that while on St. Charles Road a car suddenly turned in front of her and she "had to apply the brakes" to keep from striking it. When she did so the car skidded somewhat to one side; she righted it without difficulty and went on. She said "it was nothing to frighten anyone." The respondent testified that the other car must have caught its wheel in the track and "we skidded to avoid hitting it." After entering upon Florissant Road and before reaching the point where the accident occurred, they found that the road descends a long hill and makes several curves, but at the scene of the accident and for some distance in both directions from the same they found the road to be straight and level. Ferguson is but a fraction of a mile from that point. At the time of the accident and during their course there were no other vehicles on that road. The automobile was being driven along the middle of the road. The respondent testified that they had been traveling from thirty to thirty-five miles an hour and at the time of the accident were proceeding at a speed of at least thirty miles; that "the road appeared safe; there was nothing about their approach to the point of the accident that appeared at all unusual or abnormal;" that the road at that point was wet just as elsewhere in the course of their travel. They were talking together as they proceeded. At no time did respondent object or protest regarding the speed or regarding appellant's manner of driving. The automobile was comparatively new and in first class mechanical condition and, after the accident, was driven from the scene under its...