Coit v. Bentz

• Decision Date: 10 July 1961
• Docket Number: No. 2,No. 48047,48047,2
• Citation: 348 S.W.2d 941
• Parties: Fay C. COIT, Respondent, v. G. J. BENTZ, Appellant
• Court: Missouri Supreme Court

Page 941

348 S.W.2d 941

Fay C. COIT, Respondent, v. G. J. BENTZ, Appellant.

No. 48047.

Supreme Court of Missouri, Division No. 2.

July 10, 1961.

Motion for Rehearing or for Transfer to Court en Banc Denied

Sept. 11, 1961.

A. Warren Francis, Lloyd A. Hamrick, Kansas City, for appellant.

Garrett, Weed & Jones, Kansas City, for respondent.

EAGER, Judge.

This appeal is from an order of the trial court granting plaintiff a new trial on account of error in an instruction, after the jury had found for the defendant. Since plaintiff's prayer was for $17,500, we have jurisdiction. The case arises out of an automobile collision in Kansas City. The only points made involve instructions, and we may state the facts briefly.

Plaintiff testified: that he was driving west on Admiral Boulevard, approaching Troost Avenue, in the middle of three west-bound lanes; there was a stop light at the intersection and this could be operated manually by a push button; he saw children at the corner, and the light turned amber when he was three or four car lengths back; he had slowed to 12-15 miles per hour, and stopped about 2-3 feet from the crosswalk. As he stopped with his foot on the brake, he took the car out of gear and had gotten a cigarette out of his pocket when there was a violent crash at the back of his car. He further testified: that his car was knocked 5-6 feet over the white line; that he got out, recognized the defendant, and they pulled around the corner and talked; plaintiff's left bumper guard was knocked off and the 'gravel guard' bent; defendant's car had some broken grille work; plaintiff felt no personal injuries at that time; he had previously seen, in the mirror, a car behind him; he estimated that he had been stopped 2-5 seconds before the impact. He emphasized on cross-examination that the stopped in the center lane, and had been in it since he entered Admiral from the south at Paseo. He testified that the north lane was used for parking at times, but not during the rush hours, as this was; he had, however, just passed a car which had stopped in the curb lane for some purpose; he admitted that in his deposition he had testified that he was in the 'north lane,' but he sought to explain that he meant the more northerly of the two lanes not used for parking; he also said that his car was 8-9 feet from the curb at the time of the impact. He began to note painful injuries the next morning, but these are immaterial here.

Defendant's version was: that he was driving alone, as was plaintiff; he was in the center lane of the westbound lanes and he had noted a car ahead of him (which proved to be plaintiff's), but this was in the lane to his right; he had slowed to a 'stopping speed' as the light at Troost turned to amber, when suddenly and without warning this car in front 'swerved to the left just a little bit * * *,' and came 3-4 feet into defendant's lane; he applied his brakes, but his bumper hit the left side of plaintiff's bumper just as he stopped; the cars did not move at the impact; he asked plaintiff why he turned over, and the latter replied that 'I didn't want to hit them people.' He further testified: that he was 1-3 car lengths behind plaintiff when the latter swerved; that plaintiff's bumper guard 'flipped' into his grille.

The instruction held erroneous was defendant's No. 5; however, in order to understand it adequately, we must quote plaintiff's Instruction No. 1, as follows: 'The Court instructs the Jury that if you find and believe from the evidence that on the 5th day of November, 1957, plaintiff, Fay C. Coit, was operating an automobile, mentioned in evidence, in a westerly direction on Admiral Boulevard in Kansas City, Missouri, in the second lane for westbound traffic, north of the center line of said Admiral Boulevard, and was approaching the intersection of said Admiral Boulevard with Troost Avenue, if so, and if you further find and believe from the evidence that defendant was operating an automobile mentioned in evidence in the same direction of plaintiff's automobile on said Admiral Boulevard, if so, and if you further find and believe from the evidence that plaintiff was required to and did bring his automobile to a stop at the intersection of said Admiral Boulevard and Troost Avenue for a red light for westbound traffic on said Admiral Boulevard, if so, and if you further find and believe from the evidence that when plaintiff's automobile was so stopped at said intersection, if you so find, the defendant caused, suffered and permitted the front end of his said automobile to come into contact with the rear end of the automobile with plaintiff therein, and if you further find and believe from the evidence that defendant did not exercise the highest degree of care in keeping a lookout ahead to observe plaintiff's automobile and its movements, and in keeping the car operated by defendant under control so as to avoid a collision, and if you further find that such conduct on the defendant's part, if any, was negligence, and if you further find and believe from the evidence that plaintiff was at all times exercising the highest degree of care, and if you further find and believe from the evidence that as a direct and proximate result of the contract between said automobiles, if any, plaintiff was injured, then you will find the issues in favor of plaintiff and against the defendant.'

Defendant's Instruction No. 5 was as follows: 'The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in evidence defendant was keeping a lookout ahead for other automobiles, including plaintiff's automobile, if so, and if you further find that defendant did have his automobile under control, if so, then you are instructed your verdict should be against plaintiff and in favor of defendant.'

After the first submission of this appeal the court, of its own motion, ordered a rehearing. The case has been rebriefed and reargued; it will not be necessary to consider all the points now briefed. The principal controversies raised in the briefs are whether or not plaintiff submitted the 'rearend collision' doctrine in his Instruction No. 1, whether it was necessary for defendant to converse any such supposed submission in his Instruction No. 5, and, of course, whether Instruction No. 5 was otherwise correct as a converse. Certain other matters will be referred to in the opinion.

It is doubtful, to say the least, whether plaintiff pleaded the rear-end doctrine as a theory of negligence, but defendant concedes that such might properly have been submitted under the evidence, whether pleaded or not. And see, Sec. 509.500 RSMo 1959 and V.A.M.S.; Civil Rule 55.54 V.A.M.R.; Gooch v. Lake, Mo., 327 S.W.2d 132, 134. We first consider whether Instruction No. 1 submitted that theory of negligence, as plaintiff insists it did. When Instruction No. 1 is analyzed, it is seen that the only acts of defendant hypothesized as negligence are: 'And if you further find and believe from the evidence that defendant did not exercise the highest degree of care in keeping a lookout ahead to observe plaintiff's automobile and its movements, and in keeping the car operated by defendant under control so as to avoid a collision, * * *.' The words,--'and if you further find that such conduct on the defendant's part, if any, was negligence,' clearly refer only to the two acts just previously hypothesized as constituting a failure to exercise the highest degree of care. The preceding part of the instruction, which plaintiff now asserts was a submission of negligence based on the rear-end doctrine, namely, '* * * and if you further find and believe from the evidence that plaintiff was required to and did bring his automobile to a stop at the intersection of said Admiral Boulevard and Troost Avenue for a red light for westbound traffic on said Admiral Boulevard, if so, and if you further find and believe from the evidence that when plaintiff's automobile was so stopped at said intersection, if you so find, the defendant caused, suffered and permitted the front end of his automobile to come into contract with the rear end of the automobile with plaintiff therein, * * *' is a mere statement of the evidentiary facts of the collision, preliminary to the specifications of negligence; this is immediately followed, as already noted, by the words: '* * * and if you further find and believe from the evidence that defendant did not exercise the highest degree of care in * * *' (lookout and control). The claim here of a submission of the rear-end doctrine would seem to be an afterthought; had plaintiff actually intended to submit it as such, he should certainly have required a finding that defendant, in causing and permitting his car to strike the rear end of plaintiff's car, failed to exercise the highest degree of care and was negligent. As indicating such a manner of submission, see: McVey v. St. Louis Public Service Co., Mo., 336 S.W.2d 524 (where the requirement of negligence is emphasized); Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360; Gooch v. Lake, Mo., 327 S.W.2d 132; Witherspoon v. Guttierez, Mo., 327 S.W.2d 874; State ex rel. Spears v. McCullen, Banc, 357 Mo. 686, 210 S.W.2d 68; Doggendorf v. St. Louis Public Service Co., Mo.App., 333 S.W.2d 302. Plaintiff should also have pypothesized enough of the circumstances and environment to show that his car was in a place where it had a right to be at the time of the collision (as, for instance, that it stopped in the same lane in which it had been traveling), that it was being properly operated, and that defendant, following him, drove his car into plaintiff's car in that place and position. Jones, supra; Chiodini v. Terminal R. Ass'n of St. Louis, Mo.App., 287 S.W.2d 357; Doggendorf v. St. Louis Public Service Co., Mo.App., 333 S.W.2d 302. That requirement has...