Dean v. Moceri

• Decision Date: 05 November 1935
• Docket Number: No. 23489.,23489.
• Citation: 87 S.W.2d 218
• Parties: DEAN v. MOCERI et al.
• Court: Missouri Court of Appeals

87 S.W.2d 218

DEAN v. MOCERI et al.

No. 23489.

St. Louis Court of Appeals. Missouri.

November 5, 1935.

Rehearing Denied November 19, 1935.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Action by Gladys Dean against Joe Moceri, an individual doing business as the Western Meat Market, and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Bass & Bass and John Grossman, all of St. Louis, for appellant.

Clark M. Clifford and Lashly, Lashly & Miller, all of St. Louis, for respondents.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Gladys Dean, in a collision between an automobile in which she was riding as a guest of its driver, Joe Graf, and a truck owned by Joe Moceri and being driven at the time by the latter's agent and servant, defendant John Jenkins, in the regular course of his employment. Upon a trial to a jury, a verdict was returned in favor of the defendants; and plaintiff's appeal to this court has followed by the usual steps.

The accident occurred at the intersection of Sarah street and Enright avenue, in the city of St. Louis, on the morning of July 11, 1932. The automobile in which plaintiff was riding was being driven southwardly on Sarah street, the collision occurring when it was practically across the intersection. Defendants' truck was eastbound on Enright avenue.

There was evidence pro and con upon the issue of where the fault for the collision lay, and a verdict for either party would have had abundant support in substantial evidence. As a matter of fact there is no issue raised on this appeal regarding the sufficiency of the evidence to have supported the verdict, and so the details of the evidence are no longer of any particular importance.

Plaintiff relied in the statement of her case upon negligence under certain ordinances of the city of St. Louis requiring the operator of a motor vehicle to drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the life or limb of any person, and to keep the same as close to the right-hand side of the street as practicable. She also pleaded negligence for failure to warn; and coupled with her charge was an assignment under the humanitarian doctrine predicated upon the failure of the driver of the truck to have stopped the same, slowed it down, or have changed its course so as to have avoided the collision.

For their answer defendants filed a general denial, and along with it set up a plea of contributory negligence on plaintiff's part, which, incidentally, was not submitted to the jury; the instructions, in so far as the issues of negligence were concerned, being limited and restricted to a defense as against the humanitarian doctrine, which, seemingly, was regarded by all parties as the chief issue in the case. Plaintiff herself asked for and received no instructions.

Plaintiff replied to defendants' answer in the conventional manner; and upon the issues as thus made up the case was brought to trial, resulting in the verdict for defendants, as has already been disclosed.

Plaintiff bases her claim for a reversal solely upon the ground of error in the giving of instructions Nos. 3 and 4 for defendants, and ordinarily any other instructions in the case might not be of moment, but here the nature of her criticisms of the two particular instructions requires that they be read and interpreted in the light of the entire charge to the jury, and so, along with instructions Nos. 3 and 4, we think it necessary that we set out instruction No. 2 as well. Defendants also received instruction No. 1 upon the burden of proof in the case, but it is in no wise in issue on this appeal and therefore will not be further adverted to.

The three instructions in question were as follows:

"2. The court instructs the jury that plaintiff charges that defendants saw, or by the exercise of the highest degree of care could have seen, the automobile in which plaintiff was riding upon Sarah street at its intersection with Enright avenue and in a position of imminent peril of being struck, in time thereafter, by the exercise of the highest degree of care, with the means and appliances at hand and with safety to the driver, to have stopped defendants' automobile truck, slowed same down, or to have turned same aside so as to have avoided striking plaintiff.

"In reference to said charge, the court instructs the jury that if you believe and find from the evidence that as soon as the automobile in which plaintiff was riding reached a position of peril of colliding with defendants' automobile truck, the driver of said truck could not, by the exercise of due care, have prevented the automobile in which plaintiff was riding from colliding with the automobile truck of defendants, then and in that case plaintiff is not entitled to recover, and your verdict shall be for the defendants."

"3. The court instructs the jury that by the phrase `due care' as used in these instructions with reference to the parties to this suit, is meant the highest degree of care which a very careful, prudent, and skillful automobile operator would exercise under the same or similar circumstances."

"4. The court instructs the jury that if you believe and find from the evidence that defendants' automobile reached the intersection of Enright avenue and Sarah street shortly prior to, or at approximately the same time that the automobile of plaintiff reached said intersection, then and in that case the driver of defendants' automobile had the right of way to proceed across said intersection.

"And if you further believe and find from the evidence that as soon as plaintiff's automobile reached a position of peril of a collision with defendants' automobile, the driver of defendants' automobile did exercise due care to slow down said automobile and stop same as quickly as possible.

"And if you further believe and find from the evidence that the driver of defendants' automobile, in so doing, did exercise due care to avoid a collision with plaintiff's said automobile, but that it was impossible under the then existing circumstances for the driver of defendants' automobile, by the exercise of due care, to avoid such collision, then and in that case plaintiff is not entitled to recover, and you will find your verdict for the defendants."

As a matter of objection to instruction No. 3, counsel argue with much insistence that it required the highest degree of care to be exercised by plaintiff, who was but a passenger in the automobile involved in the collision with defendants' truck, and so was concededly to be held to the exercise of no more than ordinary care for her own safety; that if the instruction should be read as having had any reference to Graf, the driver of the automobile in which plaintiff was riding, then it erroneously imputed his negligence to plaintiff; that it erroneously made the question of plaintiff's exercise of due care an issue in the case submitted solely under the humanitarian doctrine, and so left the jury with the impression that negligence on plaintiff's part sufficed to bar her recovery under the humanitarian doctrine; that it required the same degree of care to be exercised by plaintiff as by defendants, and so had the wrong effect of measuring or limiting the question of defendants' negligence by plaintiff's negligence when the degree of care required of defendants' driver was higher than that required of plaintiff; and, finally, that it was in any event erroneous, in that in defining "due care" to mean the highest degree of care which a very careful, prudent, and "skillful" automobile operator would exercise under the same or similar circumstances, it enjoined upon...