Eddings v. Keller, 51019
| Citation | 400 S.W.2d 164 |
| Decision Date | 10 January 1966 |
| Docket Number | No. 2,No. 51019,51019,2 |
| Parties | Gertrude EDDINGS, Appellant, v. Henry J. KELLER, Administrator of the Estate of George David Porter, et al., Defendants, Willie B. Osbon, and Watkins, Motor Lines, Inc., Respondents |
| Court | United States State Supreme Court of Missouri |
Joe C. Greene, David W. Bernhardt, Bussell, Hough & Greene, Springfield, for appellant.
Glenn A. Burkart, Mann, Walter, Burkart, Weathers & Schroff, Springfield, for respondents.
STOCKARD, Commissioner.
Plaintiff has appealed from the judgment entered pursuant to unanimous jury verdict in favor of defendants in her suit for wrongful death of Henry Eddings, her husband, in which she sought damages in the amount of $24,200.
The collision which gave rise to this lawsuit occurred about one o'clock of the morning of May 25, 1963, on a bridge over the James River on Highway 60 a few miles southeast of Springfield, Missouri. An automobile traveling south on Highway 60 and operated by David Porter struck the rear of another automobile operated by John Hulston, and the Porter vehicle then veered across the highway into a head-on collision with a tractor-trailer operated by William Colburn. The tractor-trailer overturned, and it came to rest near the north end of the bridge lying on its side and blocking part of the highway. Shortly thereafter Henry Eddings drove his automobile south on Highway 60, and it collided with the overturned tractor-trailer. Following this a Ford, the operator being unidentified, was driven northward through the wreckage and was parked just north of the bridge on the east shoulder. The headlights on this automobile remained on. It was after the occurrence of all these events that defendant Willie Osbon drove his tractor-trailer south on the highway toward the bridge and collided with the Eddings automobile.
Prior to trial plaintiff abandoned certain allegations of primary negligence of Osbon, and her case was submitted to the jury on his humanitarian negligence in failing to stop. Plaintiff submitted that 'Henry R. Eddings was in a position of imminent peril of being struck and injured as a result of a collision' between the truck operated by Osbon and the Eddings automobile, and then submitted that 'Osbon saw, or by the exercise of the highest degree of care, could have seen the vehicle in which the decedent was situated in the aforesaid position of imminent peril, * * * in time thereafter, by the exercise of the highest degree of care and by the use of the appliances on said truck and with reasonable safety to himself and all persons thereat,' to have stopped the truck and avoided the collision.
Plaintiff challenges Instruction 10 which provided that if the jury found that Osbon was driving his tractor-trailer unit southward on Highway 60 toward the James River bridge and was 'exercising the highest degree of care and was not negligent, as defined and submitted to you in other instructions,' and if the jury further found 'that the bright headlights of an automobile stopped on the east shoulder of U.S. Highway 60 and headed in a northerly direction, if so, obstructed defendant Osbon's view of the decedent, Henry Eddings, and his automobile on the James River bridge, so that defendant Osbon did not see, and by the exercise of the highest degree of care on his part could not have seen, Henry Eddings in a position of imminent peril of being struck by said tractor-trailer unit in time for the defendant Osbon thereafter, by the exercise of the highest degree of care, to have stopped said tractor-trailer unit, so as to have prevented the collision between the same and the automobile driven by said Henry Eddings, then plaintiff is not entitled to recover, and you will find your verdict in favor of the defendants.'
Plaintiff asserts this instruction is 'a positive misdirection of law and was prejudicially erroneous' because 'it exonerated (Osbon) of any duty to discover the reasonable appearances of the position of peril,' in that it 'directed the jury that they must find for (defendants) unless they believed he (Osbon) could have seen the decedent Henry Eddings.'
Instruction 10 is a converse instruction. It submits a factual situation supported by the evidence, 'the existence of which would disprove, that is controvert, one or more of the essential factual elements of plaintiff's case.' Liebow v. Jones Store Company, Mo., 303 S.W.2d 660, 662. The instruction apparently was taken from Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, and except for the necessary changes to express the different factual situation it follows the converse instruction approved in that humanitarian negligence case.
Plaintiff cites numerous cases (See v. Wabash R. Co., 362 Mo. 489, 242 S.W.2d 15; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Ukman v. Hoover Motor Express Co., Mo., 269 S.W.2d 35, and many others) which state in effect that it is the reasonable appearances of the situation which imposes a duty on the defendant in a humanitarian situation to take preventative action, and of course we do not disagree with that general proposition. Plaintiff's argument seems to be that Instruction 10 exonerated Osbon of any duty to discover 'reasonable appearances of the position of peril' because, as plaintiff contends, it 'directed the jury that they must find for the (defendants) unless they believed he (Osbon) could have seen the decedent Henry Eddings.' We do not agree that this is what the instruction did, and we are of the opinion that instead of accomplishing what plaintiff contends, the instruction was more restrictive than it needed to be.
In her verdict directing instruction, plaintiff submitted that 'Henry R. Eddings was in a position of imminent peril,' and that Osbon saw or could have seen 'the vehicle in which the decedent was situated in the aforesaid position of imminent peril.' In Instruction 10 defendants submitted that bright headlights of another automobile obstructed Osbon's view 'of the decedent, Henry Eddings, and his automobile * * * so that (he) did not see and * * * could not have seen Henry Eddings in a position of imminent peril.' Apparently plaintiff contends that the submission in Instruction 10 should have been that the bright headlights obstructed Osbon's view so that he did not see and could not have seen the vehicle in which Henry Eddings was situated in a position of imminent peril.
We do not rule in this case whether it was proper for plaintiff to submit in her verdict directing instruction that Osbon saw or should have seen the vehicle in which Henry Eddings was situated. Suffice it to say that the generally used statement in verdict directing instructions for the plaintiff in humanitarian cases is that the defendant saw or should have seen the plaintiff in a position of imminent peril. See Clifford v. Pitcairn, 345 Mo. 60, 131 S.W.2d 508; Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483; White v. Kansas City Public Service Co., 239 Mo.App. 571, 193 S.W.2d 60;
Missouri Civil Instructions (Mo Bar CLE) § 13.6, p. 191. However, we do not think any jury composed of reasonably intelligent persons would have been misled by these two instructions, and that is the ultimate test. Spritz v. St. Louis Public Service Company, Mo., 341 S.W.2d 790; Dell'Aria v. Bonfa, Mo., 307 S.W.2d 479. Plaintiff's instruction authorized a verdict for her if the jury found that Henry Eddings was in a position of imminent peril and if Osbon saw or should have seen the vehicle in which he was situated in the position of imminent peril. Instruction 10 authorized a verdict for defendant if the jury found as a fact that the bright lights of the Ford so obstructed Osbon's view of Henry Eddings and his automobile that Osbon did not and could not have seen Henry Eddings in the position of imminent peril referred to in plaintiff's instruction. Henry Eddings and his automobile were equated in each instruction, and Instruction 10 was not a misdirection. It was plaintiff who deviated from the usual and customary submission, and if she was of the opinion that defendant's instruction, when in the usual form, would have been confusing to the jury in view of her submission, she should have called the matter to the attention of the court when there yet was time to correct it.
Appellant relies on Teague v. Plaza Express Co., 356 Mo. 1186, 205 S.W.2d 563. There a passenger in an automobile, whose host driver had run a stop sign, brought suit based on humanitarian negligence against the operator and owner of the truck which struck the automobile. A new trial was granted, after a jury verdict for defendant, because an instruction given at defendants' request told the jury that it could not find for plaintiff 'unless the plaintiff has shown * * * that the (operator of the truck) saw, or by the exercise of the highest degree of care could have seen the occupants of the Teague car in a place of imminent, immediate and inescapable peril, * * *.' This is not what was provided in Instruction 10 in this case. In the opinion in the Teague case it was pointed out that for plaintiff to recover under the facts of that case on the theory of 'inescapable peril,' it was necessary that plaintiff, who was a passenger in the Teague automobile, be in a position of imminent peril because of the actual obliviousness of the host driver, and it was stated that 'it made no difference whether he (the truck driver) saw or could have seen any occupants of the car.' The Teague case is in no way in conflict with the result we have reached, and the rule there applied is not applicable here. We find nothing erroneous in Instruction 10 which was prejudicial to plaintiff.
Plaintiff asserts error resulted from certain comments made in the opening statement and in...
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