Easterly v. American Institute of Steel Const.

• Decision Date: 05 May 1942
• Docket Number: 37389,37390
• Citation: 162 S.W.2d 825,349 Mo. 604
• Parties: Gertrude Easterly, Plaintiff-Respondent, v. American Institute of Steel Construction, a Corporation, and L. H. Dodd, Defendants-Appellants
• Court: Missouri Supreme Court

162 S.W.2d 825

349 Mo. 604

Gertrude Easterly, Plaintiff-Respondent, v. American Institute of Steel Construction, a Corporation, and L. H. Dodd, Defendants-Appellants

Nos. 37389, 37390

Supreme Court of Missouri

May 5, 1942

Rehearing Denied June 17, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. Thomas J Rowe, Jr., Judge.

Affirmed.

Moser Marsalek & Dearing for appellants.

(1) The court erred in giving plaintiff's Instruction 1. It was error to charge defendants with an absolute duty to so turn as to pass the plaintiff's car without interference, without regard to the position of plaintiff's car on the highway as they met. Sec. 8385 (c), R. S. 1939. Statutes should be given a reasonable construction. The instruction violates this rule. Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89. (2) The award of $ 25,000 damages is excessive. Pitcher v. Schoch, 139 S.W.2d 463; Christianson v. St. Louis Pub. Serv. Co., 333 Mo. 408, 62 S.W.2d 828; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Crockett v. Kansas City Rys. Co., 243 S.W. 902; Lackey v. M. & K. I. Ry. Co., 305 Mo. 260, 264 S.W. 807; Dorman v. East St. Louis Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Rogles v. United Rys. Co., 232 S.W. 93; Corn v. Kansas City & St. J. Ry. Co., 228 S.W. 78; Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865; Weaver v. Mobile & Ohio Ry. Co., 343 Mo. 223, 120 S.W.2d 1105. There should be a reasonable uniformity in the amount of the recovery permitted for injuries of the same or similar severity. O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085, 1093; Lynch v. Baldwin, 117 S.W.2d 273, 278; Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797, 804.

Cox, Blair, Kooreman & Wallach and Scott Peters for respondent.

(1) No question as to excessiveness of damages is for consideration in this court. (2) No charge that the amount of the verdict indicated bias or prejudice is briefed or argued by appellants in their brief. It was abandoned, and cannot be urged in this court. Compton v. Const. Co., 315 Mo. 1068, 287 S.W. 474; Denkman v. Prudential Fixture Co., 289 S.W. 591; Gorman v. Bank & T. Co., 137 S.W.2d 571; Krahenbuhl v. Clay, 139 S.W.2d 978. (3) No question as to excessiveness respecting the amount as reduced by the remittitur is for consideration in this court. It was never attacked in the trial court. This court has never passed expressly on the question. Melenson v. Howell, 130 S.W. 557. (4) As to Instruction 1. (a) When an instruction requires the finding of several acts of negligence, sufficiently proved, in the conjunctive, as was done by Instruction 1 in this case, it is not error even if one thing required to be found, and found, was not alone sufficient or sufficiently proved. Herrington v. Hoey, 139 S.W.2d 483, 345 Mo. 1108. (b) It is settled law in Missouri, and in nearly every other state, that a violation of a duty enjoined by statute (as in this case) is negligence per se. 45 C. J., pp. 720, 721; Beck v. Coal Hauling Co., 293 S.W. 450; Ashby v. Road Co., 99 Mo.App. 185. (c) Instruction 1 did not authorize a finding for respondent until numerous acts constituting negligence as a matter of law were found and not then until the jury found that this negligence, so found, was the proximate cause of respondent's injuries. Now the proximate cause was the "cause without which the injury would not have happened." (There was no "intervening cause.") Diehl v. Brick Co., 299 Mo. 661. (d) Instructions must be read together. Instructions 5 and 11, given at appellant's instance, could there have been any possible tendency to mislead (which there could not), specifically excluded the possibility of any confusion. Stack v. General Baking Co., 283 Mo. 423; Stanton v. Jones, 39 S.W.2d 654, 332 Mo. 631. (5) The verdict was not excessive. The judgment was far from so. The trial court and jury were in the better position to judge the matter of injuries suffered. Morrell v. Lawrence, 203 Mo. 381; State ex rel. v. Daues, 282 S.W. 390; Cobb v. Car & Foundry Co., 270 S.W. 399; Mabe v. Mfg. Co., 219 Mo.App. 248. (a) The preceding rule is peculiarly applicable to this case. Ranier v. Railroad, 271 S.W. 508. (b) It is now to be assumed that, on the issue as to amount of damages, the jury, as was in their province, believed the evidence and drew the inferences most favorable to respondent, and disbelieved unfavorable evidence and rejected unfavorable inferences. Busby v. Tel. Co., 287 S.W. 438; Milzark v. Biscuit Co., 259 S.W. 832; Fitzroy v. Bank, 234 S.W. 865. (c) It was peculiarly the province of the jury to determine the amount of damages. Other complaints of error are not for consideration in this connection. Clooney v. Wells, 252 S.W. 76. (d) The jury, with respondent and the witnesses before them, rendered the verdict. The trial court then considered the amount and reduced it substantially. That court and the jury concluded that $ 25,000 was not excessive. The trial court examined the matter a second time and then deducted part of the accrued interest. The burden on this question is now clearly and "trebly" upon appellant. State ex rel. v. Thompson, 245 Mo. 73; Kersten v. Hines, 283 Mo. 634; Monthey v. Contracting Co., 311 Mo. 156; Arkla L. & Mfg. Co. v. Mfg. Co., 252 S.W. 697. (e) Courts should not interfere unless the amount is "grossly excessive or inadequate." State v. Deuser, 134 S.W.2d 136, 345 Mo. 628. (f) Even the cases appellant cites, by fair comparison, clearly warrant the verdict in this case.

OPINION

Ellison, J.

This case comes to the writer on reassignment. Eleven of the jurors returned a verdict for plaintiff-respondent against both defendants-appellants in the sum of $ 35,000, damages for personal injuries sustained in a collision between their respective automobiles. The trial court enforced a remittitur of $ 10,000 and entered judgment for $ 25,000, this judgment postdating the verdict nearly fourteen months and thus discounting the interest thereon over $ 1600. Both appellants assign error in respondent's Instruction No. 1, and complain that the judgment is still excessive. Appellant Dodd was an employee of the appellant American Steel Institute. Respondent was riding with her husband. The collision occurred a few miles west of Drake, Missouri, in daylight, on U.S. Highway No. 50, which is of concrete slab between 18 and 20 feet wide, with a black traffic stripe in the middle.

Respondent was traveling east and the appellants west. At that point the highway ascends a long hill from the west, makes a curve to the south and levels off somewhat. Respondent's automobile had about reached that curve, and, according to the testimony for her, had been at all times on the right or south side of the highway. She and her husband first saw appellants' automobile when it was 75 to 100 feet away and on the left side of the highway. The hill prevented them from seeing it sooner. It was traveling about sixty miles per hour; respondent's automobile, 35-40 miles per hour. Respondent's husband honked his horn, pressed the brake pedal and tried to turn further to the right, but a violent collision, almost head-on, followed immediately on appellants' left side of the road. Appellant Dodd testified he was coasting down the hill about 35 miles per hour and was on his right side of the pavement. He had seen respondent's automobile from a long distance away but paid no particular attention to it until it was 35-40 feet from him. He noticed it was three or four inches over the traffic stripe, on his side of the pavement. He shounded his horn but respondent's husband violently turned to the left, the collision resulting.

Obviously this evidence presented issues of fact for the jury. Appellants do not deny that; but they say respondent's main instruction was erroneous under the particular facts of the case. No authorities are cited in support of the contention except Sec. 8385(c), R. S. 1939, sec. 7777(c), p. 5213, Mo. Stat. Ann., which provides that "an operator or driver meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center of the highway so as to pass without interference."

The instruction first hypothesizes the facts that respondent's automobile was traveling eastwardly on the right side of the highway; and that appellants' automobile was traveling westwardly and rounding a curve without keeping to the right as far as was reasonably possible, and with the left side of the automobile to the left of the center line. Next it requires a finding that when the two automobiles were meeting each other appellants' automobile failed to turn to the right of the center line so as to pass without interference. Then it advises the jury that said failures to keep to the right while rounding the curve, and to turn to the right when meeting respondent's automobile (if found) constituted negligence; and if they further found such negligence directly and proximately caused the collision and plaintiff's injuries; and that plaintiff at all such times was exercising ordinary care (she was a guest, not the driver); their verdict should be for plaintiff against both defendants.

The fault found with the instruction is that it declares appellants' failure to keep and turn to the right constituted negligence as a matter of law, without regard to the position and movement of respondent's automobile when the two vehicles were meeting. Appellants assert the instruction permitted a verdict for plaintiff even though the jury may have believed respondent's automobile was turned to the left by her husband just before the collision. There is no merit in this assignment. The import of the instruction as a whole was that respondent's...