Bidleman v. Morrison Motor Freight

• Decision Date: 23 December 1954
• Docket Number: No. 29001,29001
• Citation: 273 S.W.2d 745
• Parties: James BIDLEMAN, Plaintiff-Respondent, v. MORRISON MOTOR FREIGHT, Inc., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 745

273 S.W.2d 745

James BIDLEMAN, Plaintiff-Respondent, v. MORRISON MOTOR FREIGHT, Inc., Defendant-Appellant.

No. 29001.

St. Louis Court of Appeals, Missouri.

Dec. 23, 1954.

Morris E. Stokes, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for appellant.

William G. Phillips, Byron A. Roche, St. Louis, for respondent.

SAM C. BLAIR, Special Judge.

An intersectional collision between a motor vehicle operated by appellant's servant and one operated by respondent resulted in damage to respondent's vehicle for which he was awarded a verdict and judgment. We shall refer to the parties as they were styled in the trial court.

The collision occurred in St. Louis on Natural Bridge Road which is a multiple-lane trafficway running east and west, with four traffic lanes on each side of its center. Immediately prior to the collision both plaintiff and defendant's driver were traveling east, with plaintiff in the second lane south of the center and defendant's driver in the adjacent third lane. It is not questioned that there was substantial evidence warranting a finding that defendant's driver proximately caused the collision (1) by undertaking to pass from the rear on plaintiff's right while both were crossing the intersection of Natural Bridge Road and 25th Street, and (2) by failing to operate his vehicle as close to the right-hand side of his own lane as practicable. Further narration of the evidence is unnecessary to explain the questions presented and the rulings to be made.

The cause was submitted to the jury on the plaintiff's theory that the action of defendant's driver in undertaking to pass from the rear on plaintiff's right while crossing an intersection and his failure to operate his motor vehicle as close to the right-hand side of his own lane as practicable constituted violations of Section 304.020(2, 5) RSMo 1949, V.A.M.S., and, therefore, negligence per se.

The questions presented by this appeal concern only the propriety of a portion of one of plaintiff's instructions which was as follows: 'And if you further find from the evidence that the collision and plaintiff's damage, if any, were directly caused by defendant's failure to operate its truck as close to the right-hand side of Natural Bridge as practicable, and in attempting to pass plaintiff's automobile from the rear on its right-hand side at an intersection, then such failure to operate its truck in such a manner and such attempting to pass in such a manner, if you so find, constitute negligence on the part of the defendant under the law of the State of Missouri, and your verdict should be for plaintiff, * * * .'

Complaint is made that the instruction erroneously informed the jury that it is negligence per se to pass another vehicle from the rear on its right-hand side while crossing an intersection. In Willhite v. City of St. Louis, 359 Mo. 933, 224 S.W.2d 956, it was ruled that passing on the right side of an automobile standing at an intersection on a multiple-lane trafficway was not always and necessarily negligence per se, notwithstanding such action technically violated Section 304.020(5) RSMo 1949, V.A.M.S. Varying conditions of traffic and other factors, said the court, sometimes might warrant a jury in finding that such passing was not negligent, and the ruling was that the circumstances in that case required submission of the question of negligence to the jury. The circumstances existing in this case are put forward as grounds for applying the rationale of the Willhite case to this one. The argument is advanced that neither is it always and necessarily negligence per se, while crossing an intersection, to pass another vehicle from the rear on its right on a multiple-lane trafficway, notwithstanding that doing so is also a violation of Section 304.020(5) RSMo 1949, V.A.M.S. On this account, and under the conditions existing, it is contended that the trial court erred by instructing that the manner of passing in the present instance amounted to negligence per se, instead of directing the jury to decide for itself whether such passing was negligence under all of the facts.

Our view of this instruction renders it unnecessary to rule on the question presented. The instruction submitted conjunctively two predicates for recovery: (1) the driver's action in undertaking to pass from the rear on plaintiff's right while crossing an intersection and (2) his failure to operate his vehicle as close to the right-hand side of his own lane as practicable. Assuming but not deciding that the complaint made has validity, no criticism is lodged against the portion of the instruction submitting the driver's failure to operate his vehicle as close to the right-hand side of his own lane as practicable. Failure to obey the mandate of Section 304.020(2) RSMo 1949, V.A.M.S., to operate one's vehicle as close to the right-hand side of the highway as practicable is negligence per se, and the statute applies to a multiple-lane trafficway. Melber v. Yourtee, Mo.Sup., 203 S.W.2d 727, 730[7-9].

An instruction submitting various specifications of negligence conjunctively is not held reversibly erroneous, although one or more of the submissions is defective or without evidentiary support, if at least one submission is free from error and finds support in the evidence. In Corbin v. Kansas City, C., C. & St. J. Co., Mo.App., 41 S.W.2d 832, 837, a complaint analogous to the present one was rejected. 'Complaint is made of the giving of plaintiff's instruction No. 1, which submits in the conjunctive the three acts of negligence pleaded, and directs a verdict. It is contended by the defendant that, as the instruction submits that if the crossing was not maintained according to statutory specifications, defendant was guilty of negligence as a matter of law, it is erroneous, because it does not require defendant to have had notice of the defective condition for such a reasonable length of time as to have afforded it an opportunity to have repaired it and does not take into consideration the Public Service Commission Act which, defendant claims, empowers such Commission o regulate the construction of railroad crossings. We need not go into the question of whether or not the matter of a defective crossing was properly submitted in the instruction, for if either one of the specifications of negligence was properly submitted, the instruction cannot be considered reversibly erroneous.'

As observed, the present instruction submits its two predicates of negligence in the conjunctive. The jury obviously could not have returned any verdict for the plaintiff without first finding that the collision was proximately caused by the failure of the driver to operate his motor vehicle as close to the right-hand side of his own lane as practicable. The propriety of this submission stands unquestioned by this appeal. If the jury so found, and obviously it did, then the plaintiff was entitled to a verdict, regardless of the propriety or impropriety of the concurrent submission relating to the manner and place of passing and irrespective of any finding the jury made in response to it. Consequently, this questioned submission, even though improper, an issue we do not rule, on this record was not prejudicial to defendant and cannot be considered reversibly erroneous. This assignment is overruled. Careful consideration leads us to believe the rule we apply is not rendered inapplicable by Beahan v. St. Louis Public Service Co., 361 Mo. 807, 811, 812, 237 S.W.2d 105, 107, affirming a judgment previously affirmed by this court in Beahan v. St. Louis Public Service Co., Mo.App., 230 S.W.2d 173, 176-177. Consult: Bowman v. Standard Oil Co., 350 Mo. 958, 963, 169 S.W.2d 384, 386, cited with approval in Fantin v. L. W. Hays, Inc., Mo.Sup., 242 S.W.2d 509, 512, and Block v. Rackers, Mo.Sup., 256 S.W.2d 760, 763[1-2, 3]. See also: Gettemeyer v. Thies, Mo.App., 51 S.W.2d 868, 869; Allen v. Wilkerson,...