Faught v. Washam

• Court: Missouri Supreme Court
• Writing for the Court: STORCKMAN
• Citation: Faught v. Washam, 291 S.W.2d 78, 365 Mo. 1021 (Mo. 1956)
• Decision Date: 11 June 1956
• Docket Number: No. 44874,No. 2,44874,2
• Parties: Alfred Eugene FAUGHT, by Next Friend, George Faught, Appellant, v. William Warner WASHAM, Respondent

Page 78

291 S.W.2d 78

365 Mo. 1021

Alfred Eugene FAUGHT, by Next Friend, George Faught, Appellant, v. William Warner WASHAM, Respondent.

No. 44874.

Supreme Court of Missouri, Division No. 2.

June 11, 1956.

Errol Joyce, Brookfield, Hess & Collins, Macon, for appellant.

Nolan M. Chapman, Don Chapman, Nolan M. Chapman, Jr., Chillicothe, for respondent.

STORCKMAN, Judge.

This is a suit for damages in the sum of $50,000 for personal injuries which plaintiff alleges he suffered when an automobile operated by the defendant collided with plaintiff's automobile which was on a public highway in a damaged and disabled condition. The case was tried and submitted on the theory of humanitarian doctrine negligence. The verdict was for the defendant and the plaintiff has appealed from an adverse judgment.

The accident occurred October 15, 1953 at about 1:45 a. m. on a bridge over the East Fork of the Chariton River at a point on U. S. Highway 36 about 2.7 miles west of Macon, Missouri. The bridge, 365 feet long, had side railings made of two inch iron pipe. From the east end of the bridge, guardrails 40 feet in length angled out onto the shoulders. The highway and floor of the bridge were 20 feet wide and made of concrete. East of the bridge the highway ran straight for about 1,800 feet to the top of a hill about 53 feet higher than the elevation at the bridge site. For about 350 feet east of the east end of the bridge the highway was practically level. The night was dark and clear and the pavement dry.

The plaintiff, a young man 21 years of age at the time of the trial, had spent the evening with friends in and around Macon. He testified that he had one bottle of beer during that time. Shortly before the accident he left Macon alone driving west on U. S. Highway 36. His automobile was a 1941 Mercury of a dark green or olive drab color with white sidewall tires. As he approached the East Fork Bridge he dozed off to sleep and his car veered to the left and struck the guardrail and bridge railing on the south side of the highway. It was traveling between sixty and sixty-five miles per hour at the time and, in addition to the guardrail, plaintiff's automobile tore down 105 feet of the bridge railing and came to rest crosswise of the highway on the bridge with the plaintiff inside. All of the automobile's lights were extinguished by the collision. The front end of the damaged and disabled car was headed generally south and the rear end of the car was close to the north railing of the bridge.

The plaintiff testified that he received no injuries as a result of his car striking the guardrail and bridge railing, but as he was getting out, his automobile was struck on the left front side by the right rear portion of defendant's car and that he, the plaintiff, then received serious injuries, principally to his right foot and leg.

The defendant was returning from St. Louis to his home in Marceline, Missouri. His automobile, which he was driving, was a 1953 Buick Roadmaster four-door sedan eduipped with power brakes. With him in the car were four women including his wife and her mother and a Miss Wycoff who was killed in the accident. After stopping at a filling station in Macon the defendant drove west on U. S. Highway 36. As he approached the East Fork Bridge he was driving about sixty to sixty-five miles per hour with his headlights on 'high' or 'bright.' When he saw plaintiff's wrecked automobile on the bridge, defendant applied his brakes and swerved to the left to avoid striking it, with the result that his automobile fell from the bridge and came to rest on its left side headed west at a point about even with and south of the Mercury and with its headlights still burning. Defendant testified he did not think the Buick struck the Mercury before it left the bridge, although his answer admitted a paragraph of plaintiff's petition containing an allegation that 'defendant's 1953 Buick automobile collided with plaintiff's 1941 Mercury automobile.'

Other necessary details of the evidence will be given in connection with our consideration of the questions preserved for review.

Plaintiff first complains of the giving of Instruction No. 5 which reads as follows: 'The Court instructs the jury that the defendant had a right to assume, in the absence of notice to the contrary, that plaintiff's automobile, would not be stopped on the public highway, in the night time, that is, a half an hour after sunset and a half an hour before sunrise, to-wit: about 2 o'clock A.M., without a red light on the rear thereof plainly visible from a distance of five hundred feet to the rear, if you find it was so stopped on said public highway and without a red light on the rear thereof; and the Court further instructs you that there was no duty on the part of defendant, William Warner Washam, to stop, or change the course of his automobile until he saw, or in the exercise of the highest degree of care, could have seen that plaintiff's automobile was so stopped upon said public highway and that plaintiff was in imminent peril of being injured, if so; and the Court further instructs you, that if you find and believe from the evidence, that the defendant did not see and in the exercise of the highest degree of care could not have seen the perilous position of the plaintiff, if any, until the automobile of the defendant, William Warner Washam, was so close to the automobile of plaintiff so stopped on said highway, that the automobile of the defendant could not, by the exercise of the highest degree of care, with the brakes and aplliances at hand on defendant's automobile and with safety to defendant and the other occupants of his automobile, besstopped, or the course thereof changed, in time for defendant to avoid striking defendant's automobile, then your verdict must be for the defendant.'

Emphasis in the above-quoted instruction has been supplied, as will be all other italics within quotations unless otherwise noted.

The first part of this instruction in effect tells the jury that the defendant discharges his duty to keep a lookout if he looks with such care that he will be able to discover automobiles that have taillights complying with statutory requirements, and further gives the impression that the plaintiff can be charged with antecedent and contributory negligence if there is not such a rear light on plaintiff's automobile. We have concluded that the instruction is prejudicially erroneous in that it misstates the applicable law and is otherwise misleading.

The humanitarian rule in Missouri has been extended to discoverable as well as discovered peril at places and under circumstances where there is a duty on the operator of the instrumentality to keep a lookout. In Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116, 123, these pertinent rules of law are stated: 'It is prejudicial error, in an instruction submitting humanitarian negligence to in inject therein primary negligence of the defendant or contributory negligence of the plaintiff; to require consideration of any antecedent negligence of either plaintiff or defendant which existed prior to the time that the humanitarian doctrine properly commenced to operate; or to predicate recovery upon any different facts than those which actually existed at the time the peril arose and was discovered, or, if there was a duty to keep a lookout, when it was discoverable by the exercise of the required degree of care.'

The rule as to whether defendant was required to keep a lookout and, if so, the degree of care required is also stated in the Mayfield case as follows, 85 S.W.2d 116, 123-124: 'In the case of automobiles operating upon public streets and highways, the operator has imposed upon him the continuous statutory duty to exercise the highest degree of care at all times and all places thereon to keep a lookout for persons thereon and in every other respect.' See also Frandeka v. St. Louis Public Service Co., 361 Mo. 245, 234 S.W.2d 540, 548, and Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 937-938. It is a statutory duty. Section 304.010 RSMo 1949, V.A.M.S., Anderson v. Prugh, 364 Mo. 557, 264 S.W.2d 358, 364.

The kind of watch required is further described in Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114, 118 as follows: 'It was the duty of defendant to keep a careful watch ahead for other vehicles on the highway; and to fulfill this duty he was required to look in such an observant manner as to enable him to see what a person in the exercise of the highest degree of care for the safety of himself and others would be expected to see under similar circumstances.'

Is this positive statutory duty satisfied by the charge in the instruction 'that the defendant had the right to assume, in the absence of notice to the contrary, that plaintiff's automobile, would not be stopped on the public highway, in the night time' without a red light thereon plainly visible from a distance of five hundred feet to the rear? We do not think so. An instruction approving a lookout for automobiles stopped on the highway with a 'red light on the rear thereof plainly visible from a distance of five hundred feet to the rear' suggests and permits the exercise of ordinary care or something less than the minimum standard of the highest degree of care and the continuous lookout required of operators of motor vehicles. Such a direction to the jury is erroneous and misleading.

As heretofore indicated, the humanitarian rule operates upon the facts as they actually existed at the time the peril arose and was discoverable in the exercise of the highest degree of care. The absence of lights on the wrecked car, in proper perspective, is but one of the evidentiary facts going to the question of when plaintiff's position of peril was discoverable. It is one of several factors affecting the visibility of the automobile. As used in the instruction, it savored of a charge of antecedent or...