Burow v. Red Line Service

• Decision Date: 20 December 1938
• Docket Number: 35934
• Citation: 122 S.W.2d 919,343 Mo. 605
• Parties: F. A. Burow, Appellant, v. Red Line Service, Inc., a Corporation
• Court: Missouri Supreme Court

122 S.W.2d 919

343 Mo. 605

F. A. Burow, Appellant, v. Red Line Service, Inc., a Corporation

No. 35934

Supreme Court of Missouri

December 20, 1938

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Affirmed.

Everett Hullverson for appellant.

(1) The court erred in permitting defendant's counsel, over the objection of plaintiff's counsel, to make statements and to proffer improper evidence within the hearing of the jury and in his opening statement to the jury, with reference to the negligence charged in the petition against the St. Louis Public Service Company, a former codefendant, the judgment against which was reversed outright by the Supreme Court on appeal, which statements were improper and prejudicial to plaintiff. Rytersky v. O'Brine, 70 S.W.2d 538; Doggett v. Blanke, 70 Mo.App. 499; O'Donnell v. McElroy, 138 S.W. 674; McElroy v. Swenson Const Co., 247 S.W. 209; Buck v. St. Louis Union Trust Co., 185 S.W. 208; Hayes v. Berry, 184 S.W 913; Lewis v. Barnes, 220 S.W. 487; Messerli v. Bantrup, 235 S.W. 485; O'Hara v. Lamb Const. Co., 197 S.W. 163; Doster v. C., M. & St. P. Ry. Co., 158 S.W. 440; Chapman v. Mo. Pac. Ry. Co., 269 S.W. 688; Amsinger v. Najim, 73 S.W.2d 214; Glover v. A., T. & S. F. Ry. Co., 108 S.W. 105. (2) The court erred in giving and reading to the jury defendant's Instruction 2, for the reason that it failed to require the jury to find that defendant's motorbus could not be checked, nor said motorbus stopped in time to avoid a collision, "by the exercise of the highest degree of care on the part of defendant's chauffeur." Carle v. Akin, 87 S.W.2d 406; Sackmann v. Wells, 41 S.W.2d 153; Bank v. Morris, 257 S.W. 482; Cox v. Term. Ry. Assn., 55 S.W.2d 685; Borgstede v. Waldbauer, 88 S.W.2d 373; Causey v. Wittig, 11 S.W.2d 11; Schulz v. Smercina, 1 S.W.2d 113; Martin v. Fehse, 55 S.W.2d 440; Inman v. Walter Freund Bread Co., 58 S.W.2d 477; Johnston v. Ramming, 100 S.W.2d 466; Crockett v. K. C. Rys. Co., 243 S.W. 902; Jordan v. St. Jos. Ry., 38 S.W.2d 1042; State v. Clark, 9 S.W.2d 635; Jageles v. Berberich, 20 S.W.2d 577; Hornbuckle v. McCarty, 243 S.W. 327; Hodgins v. Jones, 64 S.W.2d 309; Bodenmueller v. Columbia Box Co., 237 S.W. 879; State ex rel. v. Ellison, 195 S.W. 722; Day v. Banks, 102 S.W.2d 946; Silliman v. Munger Ldry. Co., 44 S.W.2d 159; Ellis v. Met. St. Ry. Co., 138 S.W. 33.

Moser, Marsalek & Dearing for respondent.

(1) The ruling of the trial court on the objection interposed by appellant was within the discretion of the court, and such ruling should be deferred to on appeal. Goyette v. St. L.-S. F. Ry. Co., 37 S.W.2d 552; Bobos v. Krey Packing Co., 323 Mo. 224; Kersten v. Hines, 283 Mo. 623. (2) If Instruction 2, when considered separately, if held to be incomplete, yet, when read in connection with the other instructions, gives a complete exposition of the law covering every phase of the case. Hughes v. C. & A. Railroad Co., 127 Mo. 447; Krelitz v. Calcaterra, 33 S.W.2d 909. The instruction correctly declared the law and submitted the defendant's theory of the case for the jury's consideration. Banks v. Morris, 257 S.W. 482; Oliver v. Morgan, 73 S.W.2d 993; Sackmann v. Wells, 41 S.W.2d 153; Carle v. Akin, 87 S.W.2d 406.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action for $ 25,000 damages for personal injuries, sustained when plaintiff's automobile was struck by defendant's bus. The jury's verdict was for defendant. Plaintiff has appealed from the judgment.

The only assignments of error are concerning defendant's Instruction No. 2 and alleged misconduct of defendant's counsel. Plaintiff was driving east on Highway 40, which was wet and slick from a recent rain. The wheels of plaintiff's car caught on one of the rails of the street car track of the St. Louis Public Service Company, located in the pavement on the south side of the highway. This caused his car to skid to the north across the highway in the path of defendant's bus traveling west. Plaintiff submitted the case upon the humanitarian doctrine only. According to plaintiff's evidence, plaintiff's car had ceased skidding and was facing west (having turned in skidding) proceeding slowly in a westwardly direction when defendant's bus struck its right (north) rear end. According to defendant's evidence, each of these motor vehicles was approaching the other on opposite sides of this four lane highway, at about the same speed; plaintiff's car skidded suddenly to the northeast, while attempting to pass a car ahead of it; defendant's bus driver immediately applied his brakes and pulled as far to the right as possible; and the bus thereafter traveled about the same distance as plaintiff's skidding car to the point of collision. A former appeal herein was before this court on substantially the same evidence. [Burow v. St. Louis Public Service Co., 339 Mo. 1092, 100 S.W.2d 269.] Plaintiff's wife also brought suit for her injuries. [Burow v. St. Louis Public Service Co. (Mo. App.), 79 S.W.2d 478.] Reference is made to these cases for a more complete statement of the facts.

Defendant's Instruction No. 2 was, as follows:

"The Court instructs the jury that there was no duty resting upon the chauffeur in charge of the motorbus described in the evidence to stop said bus, or slacken the speed thereof, until it became apparent, in the exercise of the highest degree of care upon the part of the chauffeur in charge of said bus, that the automobile being operated by the plaintiff was in a position of peril on said highway described in the evidence; therefore, if you find and believe from the evidence that the perilous position of the automobile so driven by the plaintiff, if any, became so apparent to the chauffeur in charge of said motorbus mentioned in the evidence, when said motorbus was so close to the automobile, so driven by the plaintiff, that the speed of said motorbus could not be checked, nor said motorbus stopped in time to avoid a collision with the automobile so operated by the plaintiff, then plaintiff is not entitled to recover and your verdict must be in favor of the defendant Red Line Service, Inc."

Plaintiff's criticism of this instruction is that it failed to require the jury to find that defendant's motorbus could not be checked, nor said motorbus stopped in time to avoid a collision, "by the exercise of the highest degree of care on the part of defendant's chauffeur." Plaintiff says "the defendant completely disregarded any mention of any care at all after the situation of peril arose." The instruction did state the requirement of the exercise of the highest degree of care on the part of defendant's driver to discover plaintiff in a position of peril, and then said that defendant was entitled to a verdict if thereafter "the speed of said motorbus could not be checked nor said motorbus stopped in time to avoid a collision." Logically considered this instruction is more favorable to plaintiff than it would have been if the requirement as to stopping or checking speed had been limited by inserting the words plaintiff says should have been inserted. This is true because the instruction as written only authorizes a verdict for defendant if it was impossible, upon any hypothesis, for the bus driver to have stopped or checked speed. [See discussion of highest degree of care in Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; see also instructions discussed in Carle v. Akin (Mo.), 87 S.W.2d 406; Oliver v. Morgan (Mo.), 73 S.W.2d 993; Sackmann v. Wells (Mo.), 41 S.W.2d 153.] Certainly, since the plaintiff's main instruction gave the jury a correct statement of the degree of care imposed upon defendant, this instruction could not have misled the jury. This instruction did not conflict with any requirement of plaintiff's instruction and in this situation the instructions must be read together. [McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37, and cases cited.] While this kind of an instruction could be more clearly worded, we hold that it was not prejudicial error to give it in this case.

Plaintiff's remaining assignment is that the court erred in permitting defendant's counsel to make statements and to proffer improper evidence within the hearing of the jury with reference to the negligence charged in the petition against the St. Louis Public Service Company, a former codefendant, the judgment against which had been reversed outright by the Supreme Court on the former appeal. The record of the opening statement for defendant shows the following occurrence.

"Mr Dearing: And we will have the documentary evidence here in the court file showing that the plaintiff claimed at that time, among other things, that it was the negligence of the Street Railway Company in maintaining a nuisance which caused his automobile to swerve over into the north side of the road, and there is also an allegation in that petition to the effect that this defendant could have stopped. Now, the street railway --

"Mr. Hullverson: Just a minute. I object to anything with reference to what was said about some one who is not a defendant in this case. The Court has acted upon that defendant. The Supreme Court has acted on that. I am not permitted to go into it, and it is taking an unfair advantage for counsel to say something --

"Mr. Dearing: It is an abandoned pleading, Judge, and I am going to offer it in evidence for what it is worth.

"Mr....