Ficken v. Hopkins, 50593

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Ficken v. Hopkins, 389 S.W.2d 193 (Mo. 1965)
• Decision Date: 12 April 1965
• Docket Number: No. 50593,No. 2,50593,2
• Parties: Emma FICKEN, Respondent, v. Nadine HOPKINS, Respondent, Arlie J. Goetz and E. L. Eickhoff, Appellants

Page 193

389 S.W.2d 193

Emma FICKEN, Respondent, v. Nadine HOPKINS, Respondent Arlie J. Goetz and E. L. Eickhoff, Appellants.

No. 50593.

Supreme Court of Missouri, Division No. 2.

April 12, 1965.

Gayles R. Pine and Pine, Welling, Jones & Mitchell, Warrensburg, for plaintiff-respondent Emma Ficken.

Robert L. Wesner, and Wesner, Wesner & Meyer, Sedalia, for respondent Hopkins.

W. K. Gibson and Martin, Gibson & Gardner, Sedalia, for appellants.

STOCKARD, Commissioner.

On November 3, 1959, about 9:30 o'clock in the evening when the weather was misty or drizzling rain, Arlie Goetz was operating an ambulance, the property of E. L. Eickhoff, north on Grand Avenue in the City of Sedalia, and was taking Albert P. Ficken, who had suffered a stroke, to a hospital. In the back of the ambulance with Mr. Ficken were Charles Fox, who was administering oxygen to him, and also Emma Ficken, his wife, plaintiff in this action. Nadine Hopkins was operating a Chevrolet north on Grand Avenue ahead of the ambulance, and when she attempted to turn left onto 18th Street a collision occurred between the ambulance and the Chevrolet. Mrs. Ficken brought suit in two counts, the first for wrongful death of her husband, who died shortly after the collision, and the second for personal injuries to herself against Nadine Hopkins, Arlie Goetz, E. L. Eickhoff and Charles Fox, but at the trial she dismissed her suit as to Eickhoff and Fox. At the close of all the evidence the trial court directed a verdict in favor of Nadine Hopkins on plaintiff's suit as to both counts. The jury returned a verdict in favor of plaintiff and against Goetz for $10,000 on each count. The trial court thereafter granted Goetz a new trial as to Count I, the action for wrongful death. Upon retrial the verdict on Count I was for Goetz and against plaintiff, and this presents no issue on this appeal. Goetz has appealed from the judgment against him on Count II, plaintiff's action for personal injuries, in the amount of $10,000.

Goetz, Fox and Eickhoff each filed a cross-claim against Nadine Hopkins. Goetz sought $10,000 for personal injuries, and Eickhoff sought $640 for property damage to and loss of use of his ambulance. The Fox cross-claim was dismissed. Plaintiff's action and the two remaining cross-claims were all tried together. The jury verdict was in favor of Hopkins on each cross-claim, and Goetz and Eickhoff have each appealed. This court has jurisdiction because the amount in dispute on this appeal is $20,640.

Instruction No. 5, plaintiff's verdict directing instruction on Count II of her petition is challenged by Goetz, and preparatory to the discussion of it we shall make a few preliminary observations concerning the duties of the operators of motor vehicles, including emergency vehicles. Section 304.010 (all statutory references are to RSMo 1959, V.A.M.S.) provides that 'Every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, * * *.' There are no exceptions to this requirement. Burlingame v. Landis, 362 Mo. 523, 242 S.W.2d 578; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21. In Section 304.022 RSMo 1959, V.A.M.S., an 'emergency vehicle' is defined, and that definition includes any 'privated owned vehicle operated as an ambulance when responding to emergency calls.' This would include the ambulance operated by Goetz and owned by Eickhoff. Although there is a contention that the ambulance was not on an emergency call, the evidence is to the contrary. The driver of an emergency vehicle, pursuant to par. 4(2) of Section 304.022, may, without violating the rules of the road, do four specifically enumerated things other drivers may not do. However, these specifically enumerated exemptions 'shall apply only when the driver of any such vehicle while in motion sounds audible signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted lamp displaying a red light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle.' One of the exemptions above granted is that the driver may 'Exceed the prima facie speed limit so long as he does not endanger life or property; * * *.' In this case, Goetz was exceeding the speed limit of 30 miles an hour applicable on Grand Avenue. While the ambulance was equipped with a siren and with a lamp capable of displaying the required red light, there is a dispute whether at and immediately prior to the collision the red light was turned on and the siren was being sounded. We should also mention that Section 304.022 requires that upon the immediate approach of an emergency vehicle which is giving an 'audible signal by siren or while having at least one lighted lamp exhibiting red light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle,' the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as far as possible to the right of the traveled portion of the highway and thereupon stop and remain in such position until such emergency vehicle has passed, except when otherwise directed by a police of traffic officer. See Politte v. Miller, Mo.App., 301 S.W.2d 839.

Instruction No. 5, given at the request of plaintiff and which Goetz asserts is erroneous, with the deletion of phrases unnecessary to the discussion of the pending issues, is as follows:

'The Court instructs the jury that if you find and believe * * * that * * * defendant, Nadine Hopkins, was operating the Chevrolet automobile * * * northerly on Grand Avenue in the north bound traffic lane of said Avenue in front of the ambulance * * * which was being driven by the defendant, Arlie J. Geotz, northerly on said Grand Avenue * * * and if you further find that plaintiff, Emma Ficken, was riding as a passenger in said ambulance * * * and if you further find that the defendant, Nadine P. Hopkins turned on her left hand turn signal light at the time her automobile was between 20th and 19th Street on said Grand Avenue indicating her intention to make a left hand turn off of said Grand Avenue and that the defendant, Arlie J. Goetz, * * * saw said left turn signal light on the rear of the Hopkins automobile; that the defendant, Arlie J. Goetz, thereafter drove and operated said ambulance from the north bound traffic lane * * * to his left to pass the Hopkins automobile at a speed in excess of 30 miles per hour at a time when the Hopkins automobile was in the process of making a left hand turn off of said Grand Avenue onto 18th Street in Sedalia, Missouri, and that the defendant, Arlie J. Goetz, failed to give an audible signal by born or siren or by exhibiting a red light on the front of said ambulance indicating his intention to pass the Hopkins automobile * * *, and if you further find that in driving said ambulance in excess of 30 miles per hour when he was attempting to pass the Hopkins automobile, under the facts and circumstances shown in evidence was negligence, * * * and if you further find that failure on the part of defendant, Arlie J. Goetz, to give an audible sound of the horn or the siren or to exhibit the red lights on the front of said ambulance indicating his intention to pass the Hopkins automobile, at said time and place, was negligence, * * * and if you further find and believe * * * that as a direct and proximate result of the aforesaid negligence of the defendant, Arlie J. Goetz, said ambulance came into violent collision with the Hopkins automobile at the intersection of 18th and Grand Avenue, * * * and that plaintiff, Emma Ficken, sustained personal injuries as a direct and proximate result of the aforesaid collision, * * * and further that the negligence of the defendant, Arlie J. Goetz, directly contributed to cause the collision and plaintiff's injuries, then you are instructed that your verdict should be in favor of plaintiff, Emma Ficken, and against defendant, Arlie J. Goetz, on Count II of plaintiff's petition and this is true even though you may find that the defendant, Nadine P. Hopkins, driver of the Chevrolet automobile, was also negligent, as defined in other instructions.'

Goetz asserts this instruction is erroneous because 'it ignores the vital issue as to whether or not the ambulance was an emergency vehicle within the meaning of the provisions of Section 304.022.' As previously noted, there was evidence from which the jury could find that the ambulance was equipped with a siren and a red lamp so as to be eligible to be classed as an emergency vehicle within the definition of the above statute, but the evidence was conflicting as to whether at the time of the events which resulted in the collision, the siren was sounding and the red lamp was turned on. By Instruction No. 15 the court defined an emergency vehicle, and by Instruction No. 14 it was submitted that if the jury found that the ambulance was being operated as an emergency vehicle, and that while it followed the Hopkins Chevrolet it displayed a red light, visible under normal atmospheric conditions for a distance of 500 feet to the front, and was sounding an audible signal by siren, and that Hopkins saw the red light and heard the siren, or should have seen the light and heard the siren, in time to drive the Chevrolet to the right of the traveled portion of Grand Avenue and stop until the ambulance had passed, but that Hopkins failed to do so and was negligent, and such negligence 'solely caused the collision' then the verdict should be in favor of Goetz. This presented Goetz's theory of the case. Plaintiff's Instruction No. 5, purported to submit her theory of the case, that is, that the siren on the ambulance was not being sounded, and the red light was not turned on, and for that reason the operator was not entitled to do...