Doherty v. St. Louis Butter Co.

• Decision Date: 17 November 1936
• Parties: Robert Doherty, an Infant, by John D. Doherty, His Next Friend, Appellant, v. St. Louis Butter Company, a Corporation
• Court: Missouri Supreme Court

98 S.W.2d 742

339 Mo. 996

Robert Doherty, an Infant, by John D. Doherty, His Next Friend, Appellant, v. St. Louis Butter Company, a Corporation

Supreme Court of Missouri

November 17, 1936

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge;

Affirmed.

S D. Flanagan for appellant.

(1) And where people are apt to pass behind a vehicle under circumstances such driver should anticipate, he should signal his approach and regulate his speed so as to have his automobile under control. Reynolds v. Grain Belt Mills Co., 78 S.W.2d 132. Since respondent's driver was therefore, admittedly negligent, appellant's alleged conduct could not have been the sole cause of his injury, and said instruction was, therefore, erroneous, as an instruction must be based on the facts in evidence. Unterlachner v. Wells, 278 S.W. 79; Reith v. Tober, 8 S.W.2d 607, 320 Mo. 725; Head v. Leming Lbr. Co., 281 S.W. 441; Whitehead v. Fogelman, 44 S.W.2d 261. (a) Because an instruction which directs a verdict for the defendant if plaintiff's injuries were due to his sole negligence, in a case submitted under the humanitarian doctrine, is improper, as such an instruction is very likely to mislead the jury, and, therefore, such instruction should not be given. Schmitt v. American Press, 42 S.W.2d 969; Gray v. Columbia Terminal, 52 S.W.2d 812, 331 Mo. 73. (b) Because appellant's case was submitted under the humanitarian doctrine, and, therefore, the only defense available to respondent was to show that he could not have avoided appellant's injuries after he saw or should have seen him in or approaching a position of peril. Banks v. Morris & Co., 257 S.W. 482, 302 Mo. 254; Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 675, 331 Mo. 933; Homan v. Mo. Pac. Ry. Co., 70 S.W.2d 880, 335 Mo. 30; Larey v. M.-K.-T. Railroad Co., 64 S.W.2d 686, 333 Mo. 949; Boland v. St. L.-S. F. Railroad Co., 284 S.W. 141. (c) Because if appellant's negligence was the sole cause of his injuries, the court should have so held on demurrer, and should not have submitted such issue to the jury. Kleinlein v. Foskin, 13 S.W.2d 648, 321 Mo. 887; Homan v. Railroad Co., 70 S.W.2d 880, 335 Mo. 30. (d) Because said instruction tends to confuse the issues in this case, i. e., could or could not respondent have avoided appellant's injuries after he saw or could have seen him in or approaching a position of peril. Instruction which tends to confuse the issues should not be given. Boland v. Railroad Co., 284 S.W. 145; Causey v. Wittig, 11 S.W.2d 11, 321 Mo. 358; Cross v. Wears, 67 S.W.2d 517. (e) Because said instruction is in the nature of a lecture to the jury, and such instructions are improper. Brown v. Wheelock, 83 S.W.2d 911; Unterlachner v. Wells, 278 S.W. 79. (f) Because said instruction, in directing a verdict for respondent if appellant's conduct was the sole cause of his injuries, and said injuries were not due "to any negligence on the part of the operator of the truck in any particulars set out in other instructions herein" was erroneous, because it is improper for an instruction to refer to other instructions, as it complicates and confuses the issues. McGrory v. Thurnau, 84 S.W.2d 147; Francis v. Mo. Pac. Transp. Co., 85 S.W.2d 918. (g) Because it did not define the meaning of the words "sole cause of the collision" so that the jury might have found most anything to have been such sole cause, even appellant's contributory negligence, or foolhardiness, which are no defenses in a case submitted under the humanitarian doctrine. Silliman v. Munger Laundry Co., 44 S.W.2d 159, 329 Mo. 235; Willhauck v. Ry. Co., 61 S.W.2d 336, 332 Mo. 1165; Wholf v. Ry. Co., 73 S.W.2d 195, 335 Mo. 520; McGowan v. Wells, 24 S.W.2d 633, 324 Mo. 652; Banks v. Morris & Co., 257 S.W. 482, 302 Mo. 254; Hinds v. Railroad Co., 85 S.W.2d 173; Larey v. Railroad Co., 64 S.W.2d 686. (h) Because said instruction is vague and indefinite in not stating what acts on respondent's part constituted negligence as referred to in the clause "and not due to any negligence on the part of the operator of the truck," as the jury may have thought that the negligence referred to was speeding or the like, instead of negligence under the humanitarian doctrine. An instruction submitting a question of negligence should specify what facts are necessary to constitute negligence. Ward v. Poplar Bluff Ice & Fuel Co., 264 S.W. 80; Eastridge v. Kennett Cypress Lbr. Co., 188 Mo.App. 438, 174 S.W. 462; Feldewerth v. Railroad Co., 181 Mo.App. 630, 164 S.W. 711.

Clark M. Clifford for respondent.

(1) Instructions should always be construed so as to support judgment. There is a settled rule of law to the effect that the trial court's instructions should always be construed so as to support the judgment where, as here, it is reasonably possible to do such; a strained interpretation of the trial court's charge will not be indulged in to upset the judgment of the trial court. Jackson v. Sewell, 284 S.W. 197; Bogue v. Roeth, 98 Cal.App. 257, 276 P. 1071; Huber v. Scott, 122 Cal.App. 334, 10 P.2d 150; Wright v. Foreman, 86 Cal.App. 595, 261 P. 481. (2) Trial court did not err in giving Instruction 3 requiring appellant to prove the charge of negligence by the preponderance, that is, the greater weight of the credible evidence "to the satisfaction" of the jury. (a) Because an instruction requiring proof of alleged negligence "to the satisfaction of the jury" is a proper and correct instruction. Norris v. Ry. Co., 239 Mo. 695 144 S.W. 783; Malone v. Franke, 274 S.W. 369; Sisk v. Industrial Track Co., 316 Mo. 1143, 295 S.W. 751; Jackson v. City of Malden, 72 S.W.2d 850. (b) Because Instruction 3 should be read as a whole and, as thus interpreted, it is not erroneous for the word "reasonable" was inserted in the first paragraph of said instruction preceding the word "satisfaction." Schweig v. Wells, 26 S.W.2d 853; Sitts v. Daniel, 284 S.W. 862; Hicks v. Vieths, 46 S.W.2d 607; Chilton v. Ralls, 220 Mo.App. 355, 286 S.W. 718; Hagen v. Wells, 221 Mo.App. 715, 277 S.W. 581. (3) Trial court did not err in giving Instruction 7, which told the jury to return a verdict for defendant-respondent if they found from the evidence that plaintiff-appellant walked or ran against the side of defendant's truck and that plaintiff's act in so doing was the sole cause of plaintiff's injuries and was not due to any negligence on the part of the operator of defendant's truck in any particulars set out in the other instructions. (a) Because the challenged instruction was proper and correct; has been given in other cases and approved; is not open to the objection that the only defense submittable under the humanitarian doctrine was whether respondent could have avoided injuring appellant after he saw or should have seen appellant in a position of peril; and is not open to the objection that it injects appellant's negligence into the case. Ward v. Fessler, 252 S.W. 667; Oliver v. Morgan, 73 S.W.2d 993; Borgstede v. Waldbauer, 88 S.W.2d 373. (b) Because challenged instruction was not erroneous on the ground that it referred to other instructions. Ivey v. Hanson, 226 Mo.App. 38, 41 S.W.2d 840; Renfro v. Central Coal & Coke Co., 223 Mo.App. 1219, 19 S.W.2d 766; Williams v. Hyman-Michaels Co., 277 S.W. 593; Shutz v. Wells, 264 S.W. 479; Burns v. Polar Wave Ice & Fuel Co., 187 S.W. 145; 64 C. J., sec. 579, p. 640. (c) Because challenged instruction is not erroneous on ground that it failed to define "sole cause of the collision," where appellant fails to tender an instruction defining those words. Griffin v. Arney, 12 S.W.2d 95; Williams v. Hyman-Michaels Co., 277 S.W. 593; Wolters v. Chicago Ry. Co., 193 S.W. 877; State ex rel. Am. School of Osteopathy v. Daues, 322 Mo. 991, 18 S.W.2d 487; Ambrose v. Allen, 113 Cal.App. 107, 298 P. 169; Torres v. Brazos, 30 S.W.2d 375. (d) Although Instruction 7 failed to specify what facts were necessary to constitute negligence, appellant cannot predicate error thereon where, as here, other given instructions fully covered the facts constituting negligence. Plater v. Mullins Const. Co., 17 S.W.2d 658; Lammert v. Wells, 282 S.W. 487. (e) Because said instruction did not ignore the evidence, and was based on facts in evidence. (f) Because Instruction 7 should be read in connection with the other given instructions, and on appeal there is a presumption that the jury considered all the given instructions, and as thus construed Instruction 7 was not erroneous. Schweig v. Wells, 26 S.W.2d 853; Sitts v. Daniel, 284 S.W. 862; Hicks v. Vieths, 46 S.W.2d 607; Chilton v. Ralls, 220 Mo.App. 355, 286 S.W. 718; Hagen v. Wells, 221 Mo.App. 715, 277 S.W. 581; 4 C. J., sec. 2890, pp. 918-19; 10 Blashfield, Cyc. of Automobile Law & Practice, sec. 6677, pp. 479-80. (g) Because an appellant cannot predicate error on the giving of an instruction which appellant claims is vague, indefinite, confusing and therefore is alleged to have been misleading where, as here, appellant did not request the trial court to give an instruction that cured the claimed misleading features of the challenged instruction. Nelson v. Heinz Stove Co., 320 Mo. 655, 8 S.W.2d 920; Maloney v. United Rys. Co., 237 S.W. 515; Plath v. Brunken, 102 Neb. 467, 167 N.W. 567; Alabama Power Co. v. Armour & Co., 207 Ala. 15, 92 So. 111; Gunn v. Meyer, 267 Ill.App. 592. (4) Trial court did not err in giving Instruction 4. (a) Because Instruction 4 should be read in connection with other given instructions, and on appeal the presumption is that the jury so considered it, and as thus interpreted said instruction is correct and did not inform the jury that appellant had charged the respondent with failure to exercise "due care," but, on the contrary, told the jury that appellant had charged the respondent with...