George v. Wheeler

• Decision Date: 06 June 1966
• Docket Number: No. 24420,24420
• Citation: 404 S.W.2d 426
• Parties: Vasil T. GEORGE and Evelyn Bradley George, Respondents, v. Robert E. WHEELER, Appellant.
• Court: Missouri Court of Appeals

Page 426

404 S.W.2d 426

Vasil T. GEORGE and Evelyn Bradley George, Respondents, v. Robert E. WHEELER, Appellant.

No. 24420.

Kansas City Court of Appeals, Missouri.

June 6, 1966.

Jerome W. Seigfreid, Edwards, Seigfreid & Runge, Mexico, for appellant.

Falzone & Falzone, Moberly, for respondents.

MAUGHMER, Commissioner.

We have here a suit for damages which arose from a collision of two automobiles. The plaintiffs, Vasil T. and Evelyn Bradley George, were the owners of a 1959 Rambler Station Wagon. Carl Wheeler, as to whom plaintiffs have dismissed, but who was one of the original defendants, was the owner of a 1960 Pontiac Sedan. At about 9:00 p.m. on September 16, 1960, Mrs. George, with her two small children, was driving the Rambler south on Williams Street and just south of its intersection with Grant Street in theCity of Moberly, Missouri, when she attempted to turn left into a 'mobile home park', where she and her family lived in a trailer house. At the same time and place the defendant Robert Wheeler, accompanied by his boyhood friend, John Ehler, was driving the Pontiac south on Williams Street and closely behind Mrs. George. Mrs. George was in the process of turning left into the trailer park and defendant was in the process of passing the Rambler on the left when the two vehicles collided.

The plaintiffs filed this suit alleging personal injuries to Mrs. George and property damage to their automobile in the gross sum of $5,000. There was no breakup as to the amount attributable to either personal injuries or property damage. Plaintiffs specified six charges of negligence in their petition. These charges were: 'High and dangerous speed under the circumstances', 'speed in excess of 25 miles per hour (city ordinance speed limit)', 'failure to keep a lookout', 'attempting to pass when plaintiff was in the act of turning left and in so doing traveled on the wrong side of the street', and 'failure to stop or slow down when he saw plaintiff making or about to make a turn to the left'. Defendant denied generally and alleged plaintiff was guilty of contributory negligence in that she (a) failed to exercise the highest degree of care; (b) drove so slowly as to impede traffic; (c) failed to keep a proper lookout (d) carelessly and negligently made a left turn into defendant's vehicle without signaling her intention so to do and (e) carelessly and negligently caused her vehicle to collide with defendant's vehicle.

At the time of the accident the weather was clear and dry. Williams Street was paved with brick. Defendant had been following plaintiff's car for at least three blocks. He had seen her car and she had seen his for a few blocks. There was testimony that plaintiff's speed was from 10 to 25 miles per hour and defendant was traveling faster. One witness, Rosie Pitney, estimated his speed as high as 60 miles per hour. A police officer found 111 feet of tire brake marks left by defendant's car. In any event, Wheeler 'closed the gap' between the vehicles and attempted to pass. He said his automobile 'overlapped' hers about half way when she pulled left into the collision. He said he blinked his lights before starting to pass. Mrs. George testified that she 'put on my signal and my brakes and pulled over to make my left turn' and that 'the hood or a portion of the hood' was in the driveway when the collision occurred. Her vehicle finally struck a tree on the east side of Williams Street. We have recounted the evidence, not as fully as is usual, but sufficiently to show that there were factual disputes as to speed, location of the vehicles when defendant started to pass and when plaintiff started to turn left, and what signals, if any, were given by either party. In other words, the jury heard evidence from which it might be inferred that plaintiff was negligent, that defendant was negligent, or that both were negligent.

The case was submitted and resulted in a nine member verdict for defendant 'on plaintiffs' claim for personal injuries and property damage'. Thereafter the trial court sustained plaintiffs' motion for new trial on the ground that:

'The Court finds Instruction No. 6, specified in paragraph 2 of plaintiffs' Motion for New Trial, to be erroneous for the reason that in defining right of way, the instruction did not supply the qualifying clause 'provided a very careful person would so proceed under the same or similar circumstances' inasmuch as there was evidence that defendant failed to use such care'.

Defendant has appealed and asserts that Instruction No. 6 need not carry the qualifying clause because it was given only in connection with the submission of contributory negligence and that to require defendant to be in the exercise of the highest degree of care before contributory negligence could apply to plaintiff would in effect destroy such defense because 'contributory negligence implies or presupposes negligence on the part of the defendant'. 38 Am.Jur., Negligence, Section 177.

It is universally understood, we believe, that the defense of contributory negligence presupposes negligence on the part of the defendant and an instruction submitting such defense need not negate generally, negligence on the part of defendant. In fact such instructions usually contain the phrase 'whether or not defendant was negligent' or 'even though defendant was negligent'. This court in Rader v. David, 207 S.W.2d 519, 523, defined it this way:

'Contributory negligence is a want of due care on the part of a plaintiff claiming to have been damaged by the actionable negligence or another, combining and concurring with that negligence, and contributing to the damage as a proximate cause thereof, without which such damage would not have occurred'.

The court then commented:

'Any contributory negligence which is a proximate cause of an injury is sufficient to defeat a recovery, though the co-operating negligence of defendant was negligence per se such as the violation of an ordinance or statute'.

In the case before us it is apparent and all parties agree that Instruction No. 5 is the only direct instruction on contributory negligence which was given. Instruction No. 6 defines 'right of way'. Failure to yield right of way is one of the contributory negligence possibilities submitted by Instruction No. 5. Instruction No. 6 must also be considered as modifying or explaining Instruction No. 5. We set out both instructions in toto:

'INSTRUCTION NO. 5, M.A.I. 28.01 modified

'Your verdict must be for the defendant, whether or not defendant was negligent, if you believe:

'First, plaintiff either

failed to keep a careful lookout, or

failed to signal her intention to make a left turn, or made a left turn when it could not be made with reasonable safety, or

drove her vehicle into collision with defendant's vehicle, or

failed to yield the right of way; and

'Second, plaintiffs' conduct, in any one or more of the respects submitted in paragraph First, was negligent; and

'Third, such negligence of plaintiffs directly caused or directly contributed to cause any damage plaintiffs may have sustained'.

'INSTRUCTION No. 6, M.A.I. No. 14.07 modified

'The phrase 'right of way', as used in these instructions, means the right of one vehicle to proceed ahead of the other.

'When the driver of a vehicle intends to make a left turn into a driveway and another vehicle is overtaking and passing and is so close that the turn would create a traffic hazard, the overtaking vehicle has the right to proceed past the turning vehicle'.

We quote in part from Chapter 304, Traffic Regulations, V.A.M.S. Section 304.019:

'No person shall stop or suddenly decrease the speed of or turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal * * *'.

Section 304.021, subsection 3 and 6:

'3. The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

'6. The driver of a vehicle intending to make a left turn into an alley, private road or driveway shall yield the right of way to any vehicle approaching from the opposite direction when the making of such left turn would create a traffic hazard'.

Section 304.016, subparagraph 1 (3):

'(3) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle'.

We find no statute specifically covering the respective procedures to be followed when an overtaking and left side passing vehicle attempts to go around a left turning automobile.

However, a left turning vehicle is directed by these statutes (1) when in an intersection, to yield the right of way to a vehicle approaching from the opposite direction 'which is within the intersection or so close thereto as to constitute an immediate hazard'; (2) when turning into a driveway to yield to a vehicle from the opposite direction if 'the making of such left turn would create a traffic hazard' and (3) when overtaken on the highway to 'give way to the right' in favor of overtaking vehicle. A left turning automobile driver might almost be said to have only secondary rights. But every operator of a vehicle in Missouri must do so with the highest degree of care else be guilty of negligence.

Not all technical or actual violations of the rules of the road give rise to absolute liability or even always constitute negligence. In Lincoln v. Railway Express Agency, Inc. et al., 359 S.W.2d 759, 765, the Supreme Court said this:

'It has been frequently stated that traffic regulations are not unyielding and inflexible and are not to be applied...