Burgher v. Niedorp

• Decision Date: 02 May 1932
• Docket Number: No. 17485.,17485.
• Citation: 50 S.W.2d 174
• Parties: BURGHER v. NIEDORP.
• Court: Missouri Court of Appeals

50 S.W.2d 174

BURGHER v. NIEDORP.

No. 17485.

Kansas City Court of Appeals. Missouri.

May 2, 1932.

Rehearing Denied May 23, 1932.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Esther Burgher against Cora Mae Niedorp. From the judgment for plaintiff, defendant appeals.

Reversed and remanded.

Groves & Watkins and Strop & Silverman, all of St. Joseph, for appellant.

Randolph & Randolph, of St. Joseph, for respondent.

BOYER, C.

Plaintiff and her husband, the son of defendant, were passengers in an automobile owned and driven by defendant when it was overturned and plaintiff injured. This action is to recover damages for the injury. The accident occurred while defendant was driving on a paved road known as State Highway No. 1, and at a point where the road curves to the east. In approaching the curve the car was going in a southerly direction, and according to the evidence for the plaintiff, as shown by her testimony and by the proof of admissions made by defendant, the car approached the curve at the rate of 50 miles an hour. About the time the car entered the curve to the east it was driven to the right off the paved portion of the road, thence back on the pavement, and again to the right and back to the left across the pavement into a ditch and against a bank where it was overturned. The upset occurred at a point about halfway or more around the curve. When the car hit the bank it turned up and completely over, and when it came to rest the motor was pointing in the opposite direction to the previous course of the car. Plaintiff sustained a cut upon her head, various body bruises, and injuries to her internal organs with results shown to be serious.

Admissions shown to have been made by defendant in explanation of the cause of the accident were to the effect that she reached the curve in the road unexpectedly; that it was rather dark and the pavement more or less slick; that she was driving too fast, lost her head, and lost control of the car. The defense was, and the evidence in behalf of defendant tended to show, that the accident was caused on account of an imperfect or defective condition in some part of the mechanism of the car which was at the time unknown to defendant; that just previous to the day of the injury the car had been placed in a garage for inspection and repair, and especially for the purpose of removing what is designated a "shimmy" which had appeared to the annoyance of defendant; that on the morning in question the car drove nicely until it reached a turn, "then it shimmied a little"; that was at a turn in the road other than the curve where the accident occurred. Defendant testified that before reaching the curve she slowed down and was on the right-hand side of the road, and when about halfway around the curve, or not quite so far, the car showed a tendency to go off the right side; "seemed to pull that way"; that the car did not leave the pavement to the right, "but it acted as though it would go, and I kept endeavoring to keep it in the middle of the road, where I should drive"; when the car reached a point about halfway around, it took a sudden turn to the left and went beyond her control; it turned sharply to the left and the wheel did not respond to her efforts to right it; she could not turn it; the car went across the road into a ditch and bank and turned over. On cross-examination, in answer to a question as to how fast she was driving when she went around the curve, she said: "Twenty or twenty-five miles an hour."

The record of the evidence is voluminous, but is composed mainly of medical testimony relative to plaintiff's physical condition; the nature, character, extent, and probable duration of her disability; and the probable cause or causes thereof. The case was submitted to the jury upon instructions tendered by both sides. Plaintiff had a verdict, judgment followed, and defendant duly appealed.

The errors assigned and the points made in the brief of appellant question the propriety of the ruling of the court on motions to discharge the jury on the ground of improper examination on the voir dire; improper argument of counsel and other occurrences said to have been calculated to inform the jury that an insurance company was defending the case; that the verdict is the result of prejudice against an insurance company and is excessive; and the propriety of giving two of plaintiff's instructions.

Instructions 2 and 3 given on behalf of the plaintiff are as follows:

"2. The jury are instructed that the driver of an automobile owes to a guest riding therein the same duty to exercise the highest degree of care in the operation and management of such automobile as such driver owes to the public in general, and the jury are further instructed in this regard that a guest in an automobile, in the exercise of ordinary care for her own safety, has the same right to recover damages because of injuries inflicted upon the guest by reason of the negligence of the driver thereof as such guest would have to recover damages because of injuries inflicted by the negligence of a driver of another automobile.

"3. The jury are instructed that if you believe and find from the evidence that on or about the 26th day of October, 1929, plaintiff was a passenger in the rear seat of an automobile then owned by defendant, and being driven and operated by defendant in a southerly direction along and upon Missouri State Highway No. 1 about midway between St. Joseph and Kansas City, and that at said time and place plaintiff was in the exercise of ordinary care for her own safety, and that defendant carelessly and negligently failed to exercise the highest degree of care in the operation of said automobile to keep same under proper control and management, or carelessly and negligently drove and operated said automobile around a curve in the said highway at an excessive rate of speed, or carelessly and negligently drove, ran and operated said automobile off the paved portion of said highway and into a ditch and against a bank alongside the said highway, and that because of any or all of such acts of negligence, if you so find, the said automobile was caused to run into a ditch and bank alongside of said road, and to turn over, and plaintiff was thereby caused to be thrown about therein and injured as a direct result thereof, then, if you so find, your verdict must be for plaintiff."

Instruction 2, standing alone, is abstract in character and indeterminate in stating the right of a guest to recover damages on account of the negligence of the driver of the car in which she is riding, and fixes such right merely by comparison with the right of the guest to recover damages on account of the negligence of the driver of another automobile. It states no ground of recovery against such other driver, nor does it give any direction for application to the issues or facts that may be found in the case on trial. But whether this instruction should be declared to be reversibly erroneous depends upon whether or not it is read in connection with a proper instruction which covers the case, defines the issues, and states the requisite finding of facts to authorize a...