Ernst v. Emerick, 26856
| Decision Date | 07 July 1975 |
| Docket Number | No. 26856,26856 |
| Citation | 525 S.W.2d 573 |
| Parties | Neza ERNST, Respondent, v. Earl A. EMERICK, Appellant. |
| Court | Missouri Court of Appeals |
Thomas J. Conway, Popham, Popham, Conway, Sweeny & Fremont, Kansas City, for appellant.
Warren D. Welliver, William A. Atkinson, Welliver & Simon, Columbia, for respondent.
Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.
Plaintiff brought this suit for wrongful death of her 14 year old son, Philip. The jury found for the defendant, but the trial court granted a new trial. Defendant appeals.
The fatal accident occurred in Sedalia, Missouri, about 8:00 p.m. on January 21, 1972. The weather was cold and drizzling. Defendant was driving south on Thompson Street, approaching 11th Street, and was following about two car lengths behind an automobile driven by Mrs. Charles. Mrs. Charles made a right turn into a shopping center parking lot, at which time defendant slowed down to approximately 10 to 15 miles per hour. After Mrs. Charles had completed her turn, defendant began accelerating and got his speed up to about 18 to 20 miles per hour. At this same time Philip was running or trotting west across 11th Street and when he reached about or just past the center of Thompson Street, he and defendant's car came into collision. Defendant testified that he noticed someone on the east side of Thompson Street when defendant was about one-half to a block away from 11th Street and that he did not see the boy again until he was within only a very few feet of defendant's automobile. Philip was rendered unconscious by the accident and died without making any statement.
The plaintiff submitted her case under Instruction No. 2, which was based upon failure of defendant to keep a careful lookout and failure to swerve after he knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision. Defendant submitted a converse, Instruction No. 3, and the issue of Philip's contributory negligence under Instruction No. 4.
The ground sustained by the trial court for granting a new trial was that defendant's converse Instruction No. 3 should have been modeled upon MAI 33.04(1), which applies where plaintiff has submitted multiple grounds of negligence, whereas the instruction instead followed MAI 33.03(2) which is intended for use where the plaintiff has submitted only a single ground of negligence. Defendant argues on appeal that this variation does not constitute prejudicial error; and he further argues that in any event the case should not have been submitted to the jury because Philip was guilty of contributory negligence as a matter of law. Plaintiff rejoins that contributory negligence was a jury issue under all of the evidence. She further contends that Instruction No. 3 was erroneous both for the reason given by the trial court and also because it failed to define the term 'negligence.' Since we conclude that Instruction No. 3 is not properly subject to either of the objections leveled against it, there was no error in the jury submission, and it becomes immaterial whether a verdict should have been directed for the defendant on the ground that contributory negligence appeared as a matter of law.
With respect to Instruction No. 3, the first question for determination is whether the use of MAI 33.03(2) instead of 33.04(1) constituted error sufficient to justify the granting of a new trial. The difference between these two approved instructions consists simply of the first framing the issue in terms of whether 'defendant was negligent,' whereas the second of the two approved instructions states the question to be whether 'defendant's conduct was negligent.' It is readily apparent that any distinction between these two virtually identical phrases would require a flight into fanciful metaphysics. Our Supreme Court has already held directly in Price v. Bangert Brothers Road Builders, Inc., 490 S.W.2d 53, l.c. 57 (Mo.1973), that there is no significant difference in these two phraseologies. The Price opinion holds:
Plaintiff attempts to distinguish Price on the ground that the instruction there included a tail which referred to the alleged negligence of defendant 'as submitted in Instruction No. 4.' However, the presence or absence of this tail cannot be of any decisive importance since the Notes on Use to both MAI 33.03(2) and 33.04(1) specifically state that this additional phraseology 'shall be included or omitted at defendant's option.' Moreover, the reasoning of the Supreme Court in the Price opinion attributes no significance whatsoever to the presence of the additional phraseology in question.
Trying to find support for the trial court's ruling, plaintiff cites Davis v. St. Louis Southwestern Railroad Co., 444 S.W.2d 485 (Mo.1969), where the granting of a new trial was affirmed because of error in giving an MAI converse instruction which controverted only one out of multiple submissions of negligence. That was a case under the Federal Employer Liability Act which presented a situation and instructions entirely different from what is involved here....
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