Carrel v. Wilkerson
| Decision Date | 04 March 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 507 S.W.2d 82 |
| Parties | Eliza CARREL, Plaintiff-Appellant, v. Dennis WILKERSON, by Mildren Wilkerson, guardian ad litem, Defendant-Respondent. 26194. |
| Court | Missouri Court of Appeals |
Robert B. Paden, Maysville, Downs & Pierce, by James O. Turner, St. Joseph, for plaintiff-appellant.
Price Shoemaker and Robert D. Colley, St. Joseph, for defendant-respondent.
Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.
The plaintiff Eliza Carrel appeals from adverse judgments on her claims for injury to her person and for the wrongful death of her husband, Leonard Carrel, alleged to have resulted when the defendant Dennis Wilkerson negligently operated his motor vehicle into the automobile driven by the decedent and occupied by plaintiff. The plaintiff submitted her causes of action on the theory of defendant's humanitarian negligence. After brief deliberation, the jury found the issues for the defendant.
Our decision does not require that we recount the evidence in detail; the salient features will suffice. The collision between the vehicles occurred on a clear afternoon at the intersection of U.S. Highway 169 and Cemetery Road at the edge of Union Star, Missouri. The defendant Wilkerson was westbound on U.S. 169 () and the decedent and plaintiff were southbound on Cemetery Road. A model of the viaduct, in simulacrum and to scale, prepared by an expert, established that at a point ninety-five feet east of the west end of the railing, the viaduct rises to an apex seventh-tenths of a foot higher than the elevation at the imaginary crossing of the center lines of Cemetery Road and U.S. 169. The stop sign which governs southbound traffic on Cemetery Road is somewhat more than twenty feet from the north edge of the pavement of U.S. 169. From that point, a motorist southbound on Cemetery Road has no view of vehicles on the viaduct approaching the intersection from the east.
It was the testimony of defendant Wilkerson that he was westbound on the viaduct at about 30 to 35 miles per hour when he first saw plaintiff's car 80 feet away. The front of the Carrel car was then one foot or two on the pavement of U.S. 169. Wilkerson immediately applied his brakes and the right front of his car continued in a westerly direction after the impact and did not cross the center line of the highway either before or after the collision. This testimony was generally corroborated by defendant's passenger except that the witness could not confidently say whether the Carrel car was stopped or moving at impact. Also, the witness, who lived in the vicinity, testified that from the stop sign on Cemetery Road there is no view of traffic coming west on the viaduct. A car southbound on Cemetery Road must virtually enter onto the pavement of U.S. 169 in order to see around the bridge abutment for a view of westbound traffic.
The highway patrolman who investigated the accident found 78 feet of skidmarks on the westbound lane of the viaduct leading to a concentration of debris and an additional 39 feet of skidmarks to the west from that point. All the skidmarks were confined to the westbound lane of U.S. 169 and all the debris was found in the east half of Cemetery Road. The highway patrolman had interviewed the driver Carrel, later deceased, who related to him:
The plaintiff Eliza Carrel testified that her husband brought the car, which was southbound on Cemetery Road, to a stop at the sign, could see nothing to the east, pulled about a foot onto the highway, saw a car coming over the apex of the viaduct, and stopped. The other car neither swerved nor slowed but continued coming and struck the Carrel car. The impact severely injured the plaintiff and killed her husband.
On this evidence, plaintiff submitted her causes of action on the theory of defendant's humanitarian negligence in failing to slacken speed and swerve after plaintiff came into a position of immediate danger of injury. Instruction No. 3 (a replica of MAI 17.14), by which the court submitted the humanitarian theory of recovery, directed a verdict for plaintiff--whether or not the decedent was negligent--upon the finding of the propositions submitted.
In the course of final summation, counsel for defendant argued:
Counsel for defendant resumed:
The plaintiff contends that it was prejudicial error for the court to allow defendant, over objection, to argue that decedent violated the stop sign, an act of antecedent negligence which could not defeat the humanitarian recovery and which, in any event, was not imputable to plaintiff. We sustain her claim of error.
The permissible field of jury argument is broad, but the law does not contemplate that counsel may go beyond the issues or record and urge prejudicial matters, or urge a theory of claim or defense which the law does not justify of which conflicts with the trial court's instructions submitting the issues of the case. Collins v. Cowger, 283 S.W.2d 554, 560(7) (Mo.1955); McCandless v. Manzella, 369 S.W.2d 188, 191(8) (Mo.1963). Under the instructions of the court, the single issue for the jury to determine was the humanitarian negligence of defendant. When a plaintiff has submitted his case solely on the hypothesis of the humanitarian doctrine, it is improper for a defendant, either by instruction or argument to inject the issue of the antecedent or contributory negligence of the plaintiff. Fisher v. Williams, 327 S.W.2d 256, 260(3) (Mo.1959); Jones v. Gooch, 453 S.W.2d 653, 654(1) (Mo.App.1970); Schrum v. Ciscell, 403 S.W.2d 657, 660(7, 8) (Mo.App.1966). And, in fact, the court had informed the jury by Instruction No. 3 that plaintiff's right to recover was the same whether or not plaintiff's driver was negligent. Defendant's argument, therefore, which urged the jury to find 'under all the evidence that Mr. and Mrs. Carrel in his car did violate that stop sign, run it, if you will', injected a false and distracting issue into the case: false because it violated the law of the case given by the court in Instruction No. 3; distracting because it diverted the jury from the legitimate inquiry of defendant's negligence to that of the plaintiff, an imputation of fault neither submitted nor otherwise sanctioned by law.
The error plaintiff now urges was sufficiently raised by her objection at the trial and in her motion for new trial that defendant's argument violated the instructions of the court. The response of the court, that the jury would decide the case upon 'what the evidence shows and not what these attorneys say the evidence shows' in effect...
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