Boyce v. Donnellan
| Decision Date | 02 February 1943 |
| Citation | 168 S.W.2d 120,237 Mo.App. 63 |
| Parties | James Boyce, Appellant, v. Keene Sadler Donnellan, Respondent |
| Court | Missouri Court of Appeals |
Appellant's Motion for a Rehearing Overruled February 19 1943.
Appeal from the Circuit Court of the City of St. Louis; Hon. James E. McLaughlin, Judge.
Affirmed.
Frank E. Mathews for appellant.
(1) The giving and reading to the jury of instruction No. 2 on behalf of respondent and at her instance constituted reversible error, because: (a) There was no evidence from which the jury could find (1) that the locking of the steering wheel was the sole and proximate cause of appellant's injuries, or (2) that by reason of the locking of the steering wheel respondent was unable to control the automobile. State ex rel. Goessling v. Daues, 314 Mo. 282, 284 S.W. 463; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Vaughn v. Meier (Mo.), 246 S.W. 279. (b) It did not sufficiently hypothesize facts which would tend to show that the respondent was free from negligence, or which would warrant the jury in finding that the locking of the steering wheel was the sole cause of appellant's injuries. Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Shields v. Keller (Mo.), 153 S.W.2d 60; Stanich v. W. U. Tel. Co. (Mo.), 153 S.W.2d 54; McGrath v Meyers, 341 Mo. 412, 107 S.W.2d 792. (2) The giving and reading to the jury of instruction No. 3 on behalf of respondent and at her instance constituted reversible error, because: (a) It required a higher degree of proof than the law requires, in that it specified that the charge of negligence must be sustained by appellant to the satisfaction of the jury. Seago v. New York Cent. R. Co. (Mo.), 164 S.W.2d 336.
Wilbur C. Schwartz and Morton K. Lange for respondent.
(1) Instruction No. 2 was a valid and proper instruction and was warranted by the evidence. Allison v. Dittbrenner (Mo. App.), 55 S.W.2d 199; Lochmoeller v. Kiel (Mo. App.), 137 S.W.2d 626; Rafferty v. Levy, 153 S.W.2d 765; Christy v. Randal (Mo. App.), 38 S.W.2d 538; Smith v. Mabrey, 154 S.W.2d 770; McCloskey v. Renne (Mo. App.), 37 S.W.2d 950; Sakowski v. Baird (Mo.), 69 S.W.2d 649; State ex rel. City of St. Charles v. Haid (Mo.), 28 S.W.2d 97; Cable v. Johnson, 63 S.W.2d 438; Hollister v. A. S. Aloe, 156 S.W.2d 606; Young v. Wheelock, 64 S.W.2d 955; Coble v. Railway, 38 S.W.2d 1031. (a) In any event, plaintiff was estopped from raising this question because he submitted the question of negligence, proximate cause and concrete cause to the jury in his instruction and having thus recognized that jury question existed, he is now in no position to deny it. Gayle v. Mo. Car & Foundry Co., 177 Mo. 427, 76 S.W. 987; Lochmoeller v. Kiel (Mo. App.), 137 S.W.2d 626; Continental Casualty Co. v. Monarch Transfer & Storage Co. (Mo. App.), 23 S.W.2d 209; Farmers Bank of Westboro v. Hanis (Mo. App.), 250 S.W. 946; Everhart v. Bryson, 244 Mo. 507, 149 S.W. 307; John Deere Plow Co. v. Cooper (Mo. App.), 91 S.W.2d 145. (2) Instruction No. 2 was a valid and proper instruction and did sufficiently hypothesize facts which would tend to show that the respondent was free from negligence and warranted the jury in finding that the locking of the steering wheel was the sole cause of appellant's injuries. Shields v. Keller (Mo.), 153 S.W.2d 60; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Doherty v. St. Louis Butter Company, 339 Mo. 996, 98 S.W.2d 742; Hopkins v. Highland Dairy Farms (Mo.), 159 S.W.2d 254; Cantwell v. Cremins (Mo.), 149 S.W.2d 345. (a) In any event, plaintiff is not in a position to raise this question because he submitted the question of the locking of the steering wheel to the jury in his own instruction on a similar theory as the defendant. State ex rel. Brosnahan v. Shain, 344 Mo. 404, 126 S.W. 1193; Phillips v. E. St. L. Ry. Co. (Mo.), 226 S.W. 863; Crews v. K. C. P. S. Co., 341 Mo. 1091, 111 S.W.2d 54. (3) Instruction No. 3 was a valid and proper instruction and has been approved many times by the appellate courts of this State. Doherty v. St. Louis Butter Company, 339 Mo. 996, 98 S.W.2d 742; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562.
This is an action to recover damages for personal injuries sustained by plaintiff as the result of the deroadment of an automobile in which he was riding. The trial, with a jury, resulted in a verdict for defendant. Judgment was given accordingly, and plaintiff appeals.
Plaintiff alleges in his petition that, on August 7, 1940, he was riding as a passenger in an automobile being driven and operated by defendant over and along highway No. 66 in St. Louis County, and that defendant negligently ran off the highway and roadway and into and out of a ditch and into a brick wall, thereby directly causing plaintiff to sustain the injuries for which he sues.
Defendant's answer is a general denial.
There were four persons in the automobile at the time of the accident. Defendant was driving the automobile. Sol Gross was seated beside her. Plaintiff was seated on the right and James R. Johnson on the left of the rear seat. Defendant was unmarried at that time. The parties were all in the employ of the Philip Morris Company. Defendant, who was then Miss Sadler, was employed as a stenographer. Plaintiff, Johnson and Gross were salesmen.
Prior to the accident the parties had agreed or arranged to go somewhere -- nowhere in particular. Plaintiff and Gross went to Johnson's home. Plaintiff arrived about noon. Gross arrived about one or two o'clock in the afternoon. Plaintiff had one or two highballs with Johnson that afternoon. Gross left the Johnson home to get Miss Sadler and returned with her about four o'clock. Miss Sadler had one drink. Plaintiff had a drink after Miss Sadler arrived. They all agreed to go somewhere and drove from the Johnson home to Bill Merritt's place. Gross drove the automobile. It was his automobile. On the way to Merritt's place they stopped a while at Busch's place. Miss Sadler had a dinner date with Gross. She was his date. At Merritt's place the party had sandwiches and beer. Upon leaving Merritt's place they drove to a filling station for gas. Upon leaving the filling station defendant took the wheel and drove westward on highway 66 a distance of about seven miles to the place of the accident.
Defendant testified that she took the wheel because Gross had been driving too fast and was driving with a highball in his hand; that she got out of the automobile and asked him if she could drive and he said she could. Defendant was an experienced driver. There is no contention that she was intoxicated. The witnesses testified that she was duly sober and showed no evidences of intoxication. The automobile was a large Ford Mercury. The top was down. The highway on which defendant was driving at the time of the accident was a concrete four-lane highway. At the time the automobile left the roadway she was passing another automobile going in the same direction. She was passing on the left in the second lane from the right. She testified that in turning the wheels of the automobile to the left in passing the other automobile the steering wheel locked so that she was unable to control the automobile and it went into the ditch on the left or south side of the highway.
Plaintiff testified that defendant had been driving the automobile going west from seven to ten miles before it went off the road; that she was driving this seven or ten miles at a speed of between seventy-five and eighty miles an hour; that he warned her of her speed two or three times; that she responded that she had the automobile under control and not to worry; that Johnson warned her and he thought Gross did too; that she did not decrease her speed after he warned her; that after he last warned her the automobile traveled possibly a mile or two before it went off the road; that the automobile traveled forty or fifty yards, or something like that, from the time it began to go in a southwardly direction until it finally ran off the road; that there was a ditch along the south side of the highway about two and a half or three feet deep and eight or ten feet wide; that the automobile angled across the highway into the ditch; that it ran into the ditch until it came to a side road that was raised above the ditch, and when the automobile hit this side road he was thrown out on the right-hand side of the automobile onto a pile of rocks five or six feet from the path of the automobile, and that the next he saw of the automobile it was about one hundred yards down in the field up against the foundation of a house that was being constructed; that the automobile traveled in the ditch after it left the roadway ten or fifteen yards; that no one in the automobile was intoxicated; that he had a drink or two at Johnson's and a drink at Merritt's place.
Johnson testified that as Miss Sadler pulled out of the filling station she immediately started driving at an excessive rate of speed; that the automobile was going seventy or seventy-five miles an hour; that he told her to slow down probably two or three times; that the next thing he knew the autmobile was going off the road and down the embankment into the ditch, and when it hit the country lane he was thrown out and the automobile came to rest against the foundation down the highway; that when the automobile started to go off the road defendant said she couldn't steer it; that she screamed out that she couldn't steer it; that she was frightened; that he knew that she couldn't steer the automobile; that she couldn't control it; that she suddenly screamed that she couldn't steer the automobile; that the automobile veered to the left rather gradually; that when Miss Sadler said she couldn't...
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