Bradley v. Becker

• Citation: 246 S.W. 561,296 Mo. 548
• Decision Date: 20 December 1922
• Docket Number: No. 22357.,22357.
• Parties: BRADLEY v. BECKER.
• Court: United States State Supreme Court of Missouri

246 S.W. 561

296 Mo. 548

BRADLEY v. BECKER.

No. 22357.

Supreme Court of Missouri, in Banc.

December 20, 1922.

Motion for Rehearing Denied December. 30, 1922.

Appeal from St. Louis Circuit Court; Moses Hartman, Judge.

Action by Mary Bradley against Charles J. Becker and others. From an order granting a new trial after verdict in favor of Becker, he appeals. Affirmed, and cause remanded.

Kelley, Starke & Moser, of St. Louis, for appellant.

C. J. Anderson and Earl M. Pirkey, both of St. Louis, for respondent.

JAMES T. BLAIR, J.

Respondent was injured when an automobile in which she was riding came into collision with an automobile truck owned by appellant. She sued appellant, the Mayer Undertaking Company, and the Reliable Auto Livery Company. The petition alleged the two last owned and were operating the automobile in which respondent was riding when hurt. With respect to appellant the petition alleged that the collision was caused by his negligence in that:

(1) "The said automobile truck was operated at a high and dangerous speed, to wit, 25 miles per hour, at a time and place where said defendant knew, or by the exercise of ordinary care would have known, that vehicles and pedestrians were likely to pass said intersection on said Gravois avenue"; and (2) "by and through the carelessness and negligence of said defendant, Charles J. Becker, his agent and servant, in his failure to sound any horn or give any other warning of his approach to said Gravois avenue"; and (3) "by and through the carelessness and negligence of said defendant, Charles J. Becker, his agent and servant, in attempting to proceed across said Gravois avenue, when by turning either to the right or left, after he saw, or by the exercise of ordinary care would have seen, the said limousine, in a position of imminent danger he could have avoided said collision"; and (4) in failing to stop after seeing the limousine in a position of imminent danger: and (5) in so operating the truck as to let his foot slip from its clutch while approaching Gravois avenue.

The several defendants filed general denials as answers. At the close of the trial appellant took an involuntary nonsuit as to the Reliable Auto Livery Company. The jury returned a verdict against the Mayer Undertaking Company for $1,500 and a verdict in favor of appellant, Becker. The trial court sustained respondent's motion to set aside the nonsuit against the Reliable Auto Livery Company, sustained the Mayer Undertaking Company's motion for new trial, and sustained respondent's motion for a new trial as against appellant, Becker. It is from this last order that the appeal is taken. The collision occurred at the intersection of Gravois avenue and Chippewa street. The limousine in which respondent was riding was traveling northeastwardly along the east side of Gravois avenue, and the Ford truck was proceeding westwardly on Chippewa. The evidence discloses the situation at the time at the junction of the two streets, and there is the usual conflict with respect to rates of speed, distances, etc. The ground which the trial court gave for sustaining the motion for new trial against Becker is that it erred in refusing an instruction asked by respondent. In his original brief appellant confined himself to the question whether the reason the court gave for its action was sound. In her brief respondent brought forward other reasons which she contends justify the order for a new trial. Several questions are presented.

I. The instruction which the court refused, and upon the refusal of which, as error, it expressly founded its order granting a new trial, reads as follows:

"The court instructs the jury that, if you believe and find from the evidence that on or about the 14th day of November, 1918, as plaintiff was riding in a limousine mentioned in the evidence, on Gravois avenue, at or near its intersection with Chippewa street, in the city of St. Louis, Mo., defendant Charles X. Becker, by and through his agent and servant, caused or permitted an automobile truck owned by said defendant Becker to collide with the said limousine, and if you further believe and find from the evidence that said defendant Becker, his agent and servant, was guilty of negligence in any one or more of the following particulars, and that such negligence of said defendant, his agent or servant, contributed to cause such collision, that is to say, that said automobile truck was operated at a high and dangerous speed while approaching and attempting to cross a public street, or that said defendant failed to sound any horn or to give any other warning of his approach to said Gravois avenue, or that said defendant Becker, his agent or servant, attempted to proceed across said Gravois avenue, when by turning either to the right or left after he saw, or by the exercise of ordinary care would have seen, the said limousine in a position of imminent danger, he could have avoided said collision (if you believe that by the exercise of ordinary care he could have seen said limousine in time to have avoided said collision), or in his failure to stop said automobile truck after seeing said limousine in a Position of imminent danger (if you believe that by the exercise of due care on the part of the said defendant Becker, his agent and servant, the said automobile truck could have been stopped before said collision occurred), then, if the jury so find, your verdict must he in favor of said plaintiff and against said defendant Charles J. Becker."

1. Appellant's first contention is that in authorizing a finding for respondent if it was found that the truck "was operated at a high and dangerous speed while approaching and attempting to cross a public street" the instruction broadened the issues, since it permitted a finding for respondent on this ground on a finding of a less speed than 25 miles per hour, which is the rate alleged in the petition; that the instruction proceeds without reference to whether the truck was going 25 miles per hour, as charged in the petition, and is therefore bad and was properly refused as broadening and enlarging the charge of negligence as to the rate of speed charged in the petition. Appellant cites decisions announcing the general rule that the issues cannot be enlarged by the instructions, and relies especially upon decisions of the Court of Appeals. Moore v. Street Ry. Co., 142 Mo. App. 292 et seq., 126 S. W. 181, is cited. In that case two grounds of negligence were expressly alleged—operation of the car (1) at a rate of speed in violation of a rule of the company, and (2) at a rate violative of an ordinance. These were abandoned, and plaintiff contended that by the rejection of certain matter as surplusage there remained a charge of common-law negligence. The court agreed this was true and held that, after rejecting all reference to the rule and ordinance, there remained this language:

"That said rate of 15 miles per hour, at which rate said car which so struck said child was moving at that time, was an unreasonable, highly dangerous, and negligent rate of speed."

The court construed this to mean "not less than 15 miles per hour." It was then said that—

"Proof of substantially less speed than fifteen miles [per hour] does not sustain the petition. For the substance and the intent of the charge of negligence is not merely that car was being run, but that it was being run at 15 miles an hour. That is to say, it was necessary to attain as much as that rate [of speed] before it would become a negligent rate."

No case was cited in support of this which presented any state of facts resembling those in the case in which the decision was being made. The cited cases merely announce the principle that instructions cannot broaden the issues made by the pleadings. It was, in effect, assumed that the pleading so made the issue that proof of a speed of at least 15 miles an hour was essential to a recovery. In Hoagland v. Dunham (Mo. App.) 186 S. W. loc. cit. 1148, the Moore Case is followed and the rule applied to a case in which the petition alleged that defendant—

"carelessly and negligently ran said car which killed said child at an unreasonable, highly dangerous, and negligent rate of speed, to wit, in excess of 12 miles per hour, as provided in section No. 676, c. 14, of the Kansas City Charter for the year 1900."

The case adds nothing to the decision in the Moore Case by way of discussion. It takes no note of the difference in the two allegations and involves the same assumption as was made in the Moore Case. There was no evidence of an ordinance, and that part of the allegation referring to one seems to have been rejected, sub silentio, except in so far as it stated a specific rate of speed. In Davis v. K. C. Ry. Co., 199 Mo. App. 621, 204 S. W. 592, the same court followed the Moore and Hoagland rule, but held that...