Crites v. Kansas City Public Service Co.
| Decision Date | 05 November 1945 |
| Docket Number | 39387 |
| Citation | 190 S.W.2d 924 |
| Parties | David M. Crites, Appellant, v. Kansas City Public Service Company, Respondent |
| Court | Missouri Supreme Court |
From the Circuit Court of Jackson County Civil Appeal Judge Allen C. Southern
Affirmed
While one of the respondent's busses was stopped at Highway 24 and Kentucky Avenue to pick up a passenger it was run into by an automobile driven by Earl W. Sherman. Twenty or thirty minutes after the first collision the appellant, David M Crites, ran into the rear end of the bus. In his action for personal injuries, submitted upon the assignment that the bus was "negligently and carelessly left standing on the paved part" of the highway "without one red light mounted at the back and directed to the rear plainly visible * * * for a distance of at least 500 feet," the jury found for the respondent Kansas City Public Service Company. Upon this appeal Crites contends that there was such prejudicial error in the court's instructions to the jury that he is entitled to a new trial.
By the appellant's proffered instruction number one liability was hypothesized upon a finding of the bus being stopped upon the highway without the statutory red light (Mo. R.S.A., Sec. 8386r) which the instruction said "was the duty of the defendant at the time and place in question to maintain." The trial court modified the instruction by inserting in the quoted clause, following the word "question," the phrase "to exercise the highest degree of care." The court also interpolated the same phrase in the hypothesization of liability. So the instruction as given said: "The court instructs the jury that it was the duty of the defendant at the time and place in question (to exercise the highest degree of care) to maintain on the bus in question one red light * * *," and if the jury found that the bus was left standing on the paved highway "without (exercising the highest degree of care to maintain) one red light mounted at the rear" they were authorized to find a verdict for the appellant. We have the anomaly of a plaintiff objecting to the requirement, in an instruction, that a defendant operator of a motor vehicle "exercise the highest degree of care" which the court added by way of modification.
It is argued that a positive statute (Mo. R.S.A., Sec. 8386r) requires the red light and that non-observance of the requirement is negligence per se. Smith v. Producers Cold Storage Co., (Mo. App.) 128 S.W. 2d 299, 303. The facts are reviewed and it is contended that they demonstrate a violation of the statute and hence negligence per se. The appellant's contention is that the interlined phrases emphasized that the respondent was excused a violation of the positive statute. It may be, once the fact has been found, by the jury or otherwise, that the statute has been violated, that the motor vehicle was being operated without the statutory lights, negligence is made to appear as a matter of law. Smith v. Producers Cold Storage Co., supra. But here the appellant submitted and left to the jury to find as a fact whether the bus was "negligently and carelessly left standing" on the highway "without one red light mounted at the back." So, aside from the question of whether the appellant was bound in any event to submit the credibility of his evidence to the jury (Cluck v. Abe, 328 Mo. 81, 84, 40 S.W. 2d 558, 559), he voluntarily treated the question of the absence of the statutory red light as a fact question to be decided by the jury and he may not now complain, after an adverse finding by the jury, that the issue was one of law. Lochmoeller v. Kiel, (Mo. App.) 137 S.W. 2d 625, 629. Dove v. Atchison, Topeka & Santa Fe Ry. Co., 349 Mo. 798, 804, 163 S.W. 2d 548, 551. Furthermore, in accordance with the general rule and practice, the appellant offered and the court gave two instructions which imposed upon and defined the respondent's duty of exercising "the highest degree of care in the operation of its passenger motor bus," ( Dignum v. Weaver, (Mo. App.) 204 S.W. 566, 568) and so we are unable to see how he was prejudiced by the court's inserting the requirement in his principal instruction. O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W. 2d 1085, 1092.
By instruction E the respondent hypothesized that if the taillight on the bus was broken by the first collision and "defendant's operator" had not had time in which to repair it and that the bus was disabled by the prior collision and "defendant had not had sufficient time in the exercise of the highest degree of care" to remove the bus from the highway, then the respondent was not negligent as to the light or in not removing the bus...
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