Davis v. Hilton
| Decision Date | 01 April 1963 |
| Docket Number | No. 23679-80,23679-80 |
| Citation | 366 S.W.2d 501 |
| Parties | Verne Albert DAVIS, Appellant, v. William M. HILTON, Respondent. |
| Court | Missouri Court of Appeals |
August V. Spallo and Joseph P. Spallo, Kansas City, for appellant.
Lester J. Vandever, Deacy & Deacy, Kansas City, for respondent.
This is an action for damages for personal injuries plaintiff claims he sustained in a collision between an automobile he was driving and one operated by the defendant. The trial was to a jury which returned a verdict in favor of defendant. Plaintiff appeals from the adverse judgment.
Although plaintiff's petition contains a prayer for judgment in the amount of $20,000.00, his counsel, in closing argument, asked the jury to return a verdict for plaintiff in the amount of $3500.00. Plaintiff's good faith demand was thereby reduced from the amount prayed in his petition to the sum of $3500.00. Daly v. Schaefer, Mo.App., 331 S.W.2d 150. Therefore, the amount presently in controversy is within the monetary jurisdiction of this court. V.A.M.S.Const. Article V, Section 13.
Plaintiff confines the scope of review in this appeal to one question: whether the trial court erred in giving Instruction No. 5, at the request of defendant, submitting the affirmative defense of contributory negligence on the part of plaintiff. In presenting his single point plaintiff has seen fit to file only a partial transcript. The evidence is not fully set out therein and is not in question and answer form. The only facts before us, as reflected by the record, are contained in a short narrative entitled 'The Evidence', which plaintiff has incorporated in the transcript.
From the narrative in the transcript and from plaintiff's brief we learn that prior to the collision plaintiff was traveling westbound on Highway 169 and the defendant was traveling eastbound on the same highway, both parties approaching the intersection of Highway 169 with Highway 71 at Riverside, Missouri. At that intersection, where Highway 71 runs north and south, plaintiff made a left turn when the traffic light was green for east-west travel, and headed south on Highway 71. Although Highway 169 west of the intersection is generally a two lane highway with only one lane for eastbound travel, it widens from one lane eastbound to two lanes eastbound at a point 'quite some distance west of the intersection'. It is plaintiff's evidence that when he was making his left turn, the defendant, who had been traveling in the inside eastbound lane of Highway 169, 'switched' to the outside lane when he was 6 or 7 car lengths from the intersection, drove around some cars which were stopped in the inside lane, proceeded into the intersection and drove his automobile into plaintiff's. It is defendant's evidence that when he reached the point west of the intersection where Highway 169 widens from one lane eastbound to two lanes eastbound he remained in the outside, or southernmost portion of Highway 169 as he approached the intersection of Highway 71; that he never at any time was in the inside (northernmost) eastbound lane of Highway 169 from the point where it widens into two lanes for eastbound travel; that as he so traveled into the intersection, plaintiff turned suddenly in front of him; and, that he applied his brakes but was unable to avoid the collision.
The case was tried and submitted on behalf of plaintiff under the theory of primary negligence on the part of defendant, in suddenly switching from the inside to the outside lane of Highway 169, and running into plaintiff's vehicle as he was making the left hand turn. Plaintiff's verdict-directing Instruction No. 1 is essentially a hypothesization of the evidence given on his behalf as above set out.
It is plaintiff's complaint that the trial court erred in giving defendant's Instruction No. 5 because 'the instruction failed to locate the lane of travel of respondent's (defendant's) vehicle on Highway 169 as respondent approached the intersection of 169 and 71 highways'. Amplifying the point, plaintiff says that 'Respondent's lane of travel was an essential factor in the case and hotly contested and failure to include the lane of travel in the instruction permitted the jury to find that appellant was required to keep a lookout for respondent's vehicle in the inside lane of Highway 169 when such vehicle could not present a hazard to appellant'. The text of Instruction No. 5 reads as follows:
'The Court instructs the jury that if you believe that at the time and place mentioned in evidence, the plaintiff, Mr. Davis, was driving a Chevrolet automobile in a westerly direction on Alternate U. S. Route 169, and if you find that the defendant was operating his Pontiac automobile in an easterly direction on said Route and that defendant was proceeding at a speed of at least 30 miles an hour and approaching the intersection of Route 71, and if you further find after plaintiff entered the intersection of said Route 169 and Route 71 the plaintiff turned his vehicle to the left and across the center line of Route 169 and into the direct and immediate path of defendant's automobile, if so, and that at the time plaintiff so turned his automobile the automobile of defendant was so close to said intersection as to constitute an immediate hazard of collision, if you so find, and if you find that such action upon the part of the plaintiff in so turning was negligent, if so, and if you further find that plaintiff failed to exercise the highest degree of care to keep and maintain a lookout for eastbound traffic and was thereby negligent, and such negligence of plaintiff in either of said regards, if so, directly caused or contributed to cause the collision and plaintiff's injuries, if any, then you are instructed that the plaintiff cannot recover in this case and your verdict shall be in favor of the defendant, Mr. Hilton, and this is true even though you may also find that defendant was negligent as submitted in the other instructions given you herein'.
The quoted instruction is based on and is declaratory of (1) plaintiff's statutory duty, in making the left turn shown in evidence, to 'yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard'; (Section 304.021(3), V.A.M.S.) and (2) his duty to maintain a constant and vigilant lookout, particularized in the instruction as the duty 'to exercise the highest degree of care to keep and maintain a lookout for eastbound traffic'. If factually supported, the instruction is a correct and proper statement of the law.
It is plaintiff's contention that since defendant's whole case was predicated on the theory that defendant was 'always in the outside lane, never in the inside lane', and did not 'swing into the outside lane * * * six or seven car lengths west of the intersection', Instruction No. 5 should have contained those facts as a hypothesis prerequisite to a finding by the jury that plaintiff was contributorily negligent. Plaintiff urges that the general hypothesis contained in the instruction erroneously permitted the jury to find him contributorily negligent under the facts constituting his own theory of the case, to-wit, that as he started to make his left turn, defendant was still in the inside lane behind some cars which had stopped in that lane, but that defendant swung out into the outside lane six or seven car lengths back of the intersection and proceeded into the intersection and into collision with plaintiff's vehicle. Plaintiff submits that 'under these circumstances he was entirely justified in making his left turn to go through the intersection'. Plaintiff further complains of the instruction that it led the jury to believe that 'no matter which lane respondent (defendant) was in he could present an immediate danger of a hazard and that appellant was required to watch for cars coming from the west on Highway 169 no matter where they might be on the highway'.
In order that plaintiff's appeal theory be thoroughly understood, we indulge in one more quotation from his argument,...
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