Fontana v. Davis

• Decision Date: 05 October 1964
• Docket Number: No. 23962,23962
• Parties: Josephine FONTANA, Appellant, v. Floyd Allen DAVIS, Respondent.
• Court: Missouri Court of Appeals

Page 835

382 S.W.2d 835

Josephine FONTANA, Appellant, v. Floyd Allen DAVIS, Respondent.

No. 23962.

Kansas City Court of Appeals, Missouri.

Oct. 5, 1964.

Knowlton & Drape, Kansas City, for appellant.

Thomas A. Sweeny, Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondent.

CROSS, Judge.

In this action plaintiff Josephine Fontana seeks to recover damages from defendant Floyd Allen Davis in the sum of $10,000.00 for personal injuries she claims to have suffered in an automobile collision. A jury trial resulted in a verdict and judgment in favor of defendant. Thereafter, the trial court overruled plaintiff's motion for a new trial. Plaintiff appeals.

The facts here set out will be sufficient for our consideration of two assignments of error made by plaintiff. On August 30, 1961, at approximately 8:00 P.M., plaintiff was riding as a passenger in a Ford automobile being driven by her father, Angelo Licata, in an easterly direction along Highway No. 40 and toward intersectiion with a north and south street in Independence, Missouri, known as Sterling Avenue. Mr. Licata testified that it was his intention to make a left turn into Sterling Avenue, and that as he approached the intersection the traffic light was green for east and west travel, but that he couldn't make the turn because of oncoming traffic, so he 'just stopped and waited for the traffic' which he described as 'heavy'. Licata stated that when the light turned yellow he saw defendant's automobile a hundred yards or more away, but that he 'figured' he could make his left hand turn on the yellow light because he thought defendant had 'plenty of room to stop'. Accordingly, Licata then drove the Ford to the left into Sterling Avenue and undertook to cross the two westbound lanes of Highway 40. He cleared the inner lane and traveled about half way across the outer lane, where his vehicle was struck on the right rear by defendant's automobile and 'pushed * * * about four or five feet over on Sterling'.

Defendant Davis testified that just before the collision he was traveling westbound on the northernmost lane of Highway No. 40 at a speed of 40 to 45 miles an hour, that when he was only two or three car lengths from the Sterling Avenue intersection the traffic light turned yellow, and that he then saw the Licata car pulling out from behind another westbound automobile which had stopped in the inside or south lane to make a left turn toward the south on Sterling Avenue. Davis said that he immediately applied his brakes as hard as he could when he saw the Licata car turning in front of him at the stated distance of two or three car lengths, that in so doing he laid down 60 feet of skid mark, but that he was unable to stop. After the defendant's vehicle had been slowed to approximately 20 miles per hour, it collided with the Licata car in the northernmost lane for westbound travel. The front of the Davis car struck the right rear fender of the Licata car. At the scene of the accident, defendant inquired of Mr. Licata whether any one in his automobile was hurt. Licata stated that a child passenger had received a scratch on its hand, but that no one else in the car was injured.

At the time of the collision plaintiff was riding in the front set of the Ford car next to the right front door, but she does not claim to have seen defendant's car before the collision. She testified that 'right at the time' (after the impact) she thought nothing had happened to her to cause injury, except that she 'felt the jab of this arm-rest on the door'. When asked by a lady at the scene of the accident if she had been hurt, plaintiff state, 'No, I don't think so'. Later that evening plaintiff still didn't think she was hurt and she 'went right on to bed'. Next morning, according to her testimony, she was 'just black and blue all over'. She consulted a physician, Dr. Downey, to whom she complained that she was 'just sore and sick all over'. She claimed she was having 'trouble' around her neck and shoulders, and all over her side, arm, and leg, and that 'it was just quite a bit of all over my body'. Dr. Downey's treatment of plaintiff on this occasion consisted of giving her some sleep inducing medicine. Plaintiff said she returned to the doctor at different intervals--about eight or nine times altogether--and that 'about all he was giving me was these pills to put me to sleep and telling me to lie down, take it easy and rest, not do any housework or any pushing or lifting or anything of that sort'. During this period of time no X-ray examination of plaintiff was made. Plaintiff's complaints as of the time of the trial were that she had pain in her neck, back and shoulders and that her stomach still 'bothers' her. The transcript contains no medical testimony on behalf of either party.

It is further shown by plaintiff's testimony that on May 19, 1962, almost nine months after the automobile collision, she slipped and fell on the floor at her home. At the direction of Dr. Downey, to whom she talked by telephone after sustaining her fall, she went to St. Mary's Hospital for examination. According to the hospital 'Emergency Record' which plaintiff produced in evidence as 'Plaintiff's Exhibit I' she gave the following history of her fall: 'Patient sat down forcibly on wet floor after slipping this A.M.' An X-ray picture of her back was interpreted by the hospital radiologist as follows: 'Impression: Compression fracture superior margin of D.6'. Plaintiff was not admitted to the hospital as a patient but returned to her home after the examination.

Plaintiff's case was submitted to the jury under her verdict directing instruction (Instruction No. 1) which reads as follows: 'The Court instructs the jury that if you find and believe from the evidence that on or about August 30, 1961, in the vicinity of 40 Highway and Sterling Avenue, plaintiff was a guest passenger in an automobile being driven in an easterly direction on Highway 40 to a northerly direction on Sterling Avenue, and using ordinary care for her safety, and, at the same time an automobile driven by defendant, Floyd Davis, was being operated in a westerly direction on said Highway 40, and, if you find that defendant Davis, by keeping a constant lookout ahead and laterally, could have seen and observed the automobile in which plaintiff was a guest passenger, and that thereafter defendant Davis could have by the highest degree of care avoided colliding with the automobile in which plaintiff was a passenger, and that defendant Davis negligently failed to do so, and that in so doing defendant Davis failed to exercise the highest degree of care and was thereby negligent, and if you find that such negligence directly caused injuries to the person of the plaintiff, then your verdict should be in favor of plaintiff, Josephine Fontana, and against defendant Davis'.

Plaintiff's first point is a contention that the trial court erred in giving defendant's Instruction No. 8 'because it is an abstract statement of law inapplicable to the case, does not hypothesize any facts; if it is a converse instruction, it is not an exact converse of plaintiff's submission, or the converse of any one of the elements essential to plaintiff's recovery and does not submit facts which disprove factual elements necessary to plaintiff'. Instruction No. 8 reads as follows: 'The Court instructs the jury that if you find and believe from the evidence that on the occasion in question Mr. Davis was at all times exercising the highest degree of care to keep a lookout ahead and laterally for vehicles with which there was danger of collision, then your verdict must be in favor of Mr. Davis, the defendant, and against the plaintiff'.

In deciding whether Instruction No. 8 is erroneous or proper we first examine plaintiff's verdict directing Instruction No. 1 for comprehension of its meaning and to ascertain the issues it defines and submits. In so doing we are mindful of all the basic and well established principles governing such inquiry, including the rules that instructions are to be read and construed in the light of the issues pleaded and presented upon trial and the evidence adduced, and, that the meaning of an instruction is to be determined from its entirety and not from isolated words or phrases. See State ex rel. Burcham et al. v. Drainage District No. 25, Mo.App., 280 S.W.2d 683, and cases cited. Plaintiff's petition is materially significant to the question at hand, since instructions 'should conform to the pleadings', and, generally, 'should not be broader than the issues made by the pleadings'. Raymond, Missouri Instructions, Vol. 1, Sec. 91, pp. 71-73.

In her petition plaintiff pleads five separate specifications of primary negligence on the part of defendant as grounds for recovery by alleging that he was careless and negligent in (a) 'failing to keep a vigilant and proper lookout ahead and laterally for automobiles which might be on or at said intersection at the time and place in question, including the automobile in which plaintiff was a passenger'; (b) operating his automobile at a dangerous and excessive rate of speed; (c) failing to have his automobile under proper control; (d) failing to give any warning by horn or otherwise; and (e) failing to stop, swerve or slacken the speed of his automobile. It is clearly apparent from reading Instruction No. 1 that in submitting her case plaintiff abandoned all of the specific grounds of negligence she had pleaded in her petition except the first one--her complaint that defendant failed to keep 'a vigilant and proper lookout ahead and laterally for automobiles which might be on or at said...