Cunningham v. Pulver
| Decision Date | 14 September 1959 |
| Docket Number | No. 46973,No. 2,46973,2 |
| Citation | 327 S.W.2d 227 |
| Parties | Adeline CUNNINGHAM, Appellant, v. Clarence PULVER, Respondent |
| Court | Missouri Supreme Court |
Commodore McFarland Combs, Jr., George C. Denney, Combs & Denney, Kansas City, for appellant.
Don M. Jackson, James W. Benjamin, Rogers, Field, Gentry & Jackson, Kansas City, for respondent.
STOCKARD, Commissioner.
In this suit for $10,000 for personal injuries the jury returned a verdict for defendant and plaintiff has appealed from the judgment entered thereon.
We have concluded that the judgment must be reversed because of an erroneous instruction. We shall, therefore, set forth only such facts as are necessary to demonstrate the reasons for that determination.
On April 21, 1955, plaintiff and her husband, Arthur Cunningham, were traveling on U. S. Highway 50, a three-lane highway, toward Kansas City in a 1952 Plymouth automobile. According to the evidence introduced on behalf of plaintiff, her husband was following defendant's truck in the extreme right or east lane and was about seventy feet to the rear of it. He undertook to pass the truck and moved into the center lane and increased his speed to about forty miles an hour, but when he was thirty or thirty-five feet behind the truck it turned suddenly without warning across the center lane and into the path of his automobile. The right front of the Plymouth struck the left rear dual wheel of defendant's truck.
Defendant's evidence was to the effect that he was driving his truck in the east lane, that he gave a hand signal and moved into the center lane, and then gave a hand signal for a left turn preparing to turn into a driveway ahead of him. When he was sixty to seventy feet from the driveway he looked in his rear view mirror and saw nothing behind him, and he then started to turn at about a forty-five degree angle toward the driveway. While he was turning the Cunningham automobile struck his truck.
Plaintiff testified that she did not drive an automobile and had no driver's license, and that just prior to the collision she was 'fooling' with the car radio attempting to get a news broadcast. She knew there was a truck ahead because she had previously seen it, but she paid no attention to it, except for a glance, until she felt a movement of the Plymouth and looked up and saw the truck 'right in front of us' and said 'watch out.'
Plaintiff submitted her case to the jury on the primary negligence of defendant in attempting to make a left turn into the path of the automobile in which she was riding. At defendant's request the trial court gave instruction 8 as follows:
'The court instructs the jury that the law imposed upon the plaintiff, Adeline Cunningham, the duty to exercise ordinary care for her own safety, and if you do decide, find and believe from the evidence that the plaintiff failed to exercise ordinary care for her own safety in failing, if so, to keep a reasonably vigilant and careful lookout for defendant's truck and in negligently failing, if so, to give a timely warning to her husband of the impending collision and if you further find that plaintiff's negligence, if any, and failure to exercise ordinary care for her own safety, if so, directly contributed in any degree or way to cause the collision, then in such circumstances, if you so find them, your verdict must be in favor of the defendant and against the plaintiff.'
This instruction required plaintiff, in the exercise of ordinary care for her own safety, to 'keep a reasonably vigilant and careful lookout' and 'to give a timely warning * * * of the impending collision.' Plaintiff contends that this instruction imposed a greater duty on her as a guest passenger than the law requires, and she cites Happy v. Blanton, Mo.Sup., 303 S.W.2d 633; Ketcham v. Thomas, Mo.Sup., 283 S.W.2d 642; and Toburen v. Carter, Mo.Sup., 273 S.W.2d 161.
Assuming that plaintiff was a guest passenger in the automobile operated by her husband, this instruction was clearly erroneous. A guest passenger is required to exercise ordinary care for his own safety, Ketcham v. Thomas, supra, and may not entrust his safety absolutely to the driver regardless of the impending danger or apparent lack of ordinary caution on the part of the driver, but such passenger is not required to exercise the same vigilance as the driver and...
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Matta v. Welcher, 8224
...those considered in Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353, and cite us to Happy v. Blanton, Mo., 303 S.W.2d 633; Cunningham v. Pulver, Mo., 327 S.W.2d 227; and State v. Feger, Mo., 340 S.W.2d It was developed during the trial that the plaintiff and his companions had begun their tr......
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Hamilton v. Slover, 53779
...Co., 318 Mo. 363, 1 S.W.2d 99, 101(2), 57 A.L.R. 615. Plaintiff-appellant's citations on this question are not in point. In Cunningham v. Pulver, Mo., 327 S.W.2d 227, the wife's suit was against the third person only and she did not plead and establish by her own evidence the negligence of ......
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Lamfers v. Licklider, 47507
...Carter, Mo.Sup., 273 S.W.2d 161; Ketcham v. Thomas, Mo. Sup., 283 S.W.2d 642; Happy v. Blanton, Mo.Sup., 303 S.W.2d 633; Cunningham v. Pulver, Mo.Sup., 327 S.W.2d 227. In the first paragraph of the instruction, it may be noted the jury was told that it was the duty of a passenger to exercis......
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Dye v. Geier
...as Applebee v. Ross, Mo.Sup., 48 S.W.2d 900, 82 A.L.R. 288, Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, and Cunningham v. Pulver, Mo.Sup., 327 S.W.2d 227. Those cases do not support her contention. They all involve questions of imputed negligence between a living husband and wif......