Goldstein v. Fendelman

• Decision Date: 13 June 1960
• Docket Number: No. 1,No. 47785,47785,1
• Citation: 336 S.W.2d 661
• Parties: Lena GOLDSTEIN, Plaintiff-Respondent, v. Erwin FENDELMAN, Defendant-Appellant
• Court: Missouri Supreme Court

Page 661

336 S.W.2d 661

Lena GOLDSTEIN, Plaintiff-Respondent, v. Erwin FENDELMAN, Defendant-Appellant.

No. 47785.

Supreme Court of Missouri, Division No. 1.

June 13, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 11, 1960.

Schwartz, James & Sweet, Harry M. James, St. Louis, for defendant-appellant, Joseph Nessenfeld, St. Louis, of counsel.

Walter S. Berkman, St. Louis, for respondent.

HYDE, Judge.

Action for damages for personal injuries sustained when plaintiff was struck by defendant's automobile. Plaintiff had a verdict for $20,000 and defendant has appealed from the judgment entered.

Defendant concedes plaintiff made a submissible case on failure to exercise the highest degree of care to keep a lookout, which was the only ground of negligence submitted. Plaintiff was struck by defendant's car about 5:15 A.M., June 24, 1958, a dark, rainy morning, at the intersection of Delmar and Melville in University City, where she was waiting to board an approaching streetcar. The principal fact issues were whether plaintiff was struck while standing in the safety zone in the street, when defendant passed the streetcar and ran through the safety zone ahead of it, as plaintiff and the streetcar motorman testified; or whether defendant was driving behind the streetcar when plaintiff came from the sidewalk and ran into the side of defendant's right front fender in attempting to get across ahead of defendant's automobile as defendant testified. Defendant's own testimony at least left in doubt his exercise of the highest degree of care in keeping a lookout.

Defendant alleges error in giving Instructions 1, 5 and 6. Instruction 1, submitting plaintiff's theory of recovery, was as follows:

'The Court instructs the jury that if you find and believe from the evidence that on the occasion in question, the plaintiff, Lena Goldstein, was standing inside the safety zone located on Delmar Avenue at the intersection with Melville Avenue, in University City, Missouri, waiting for an eastbound Delmar street car; and if you further find and believe from the evidence that thereafter the defendant was driving an automobile eastwardly on Delmar Avenue near said safety zone and failed to keep and maintain a careful watch and lookout ahead and laterally to observe plaintiff standing therein, if you so find; and if you further find and believe from the evidence that in so failing, if you so find, the defendant did not exercise the highest degree of care and was negligent; and if you further find and believe from the evidence that as a direct result of such negligence, if you find he was negligent, the defendant drove said automobile into said safety zone and struck the plaintiff and she was directly injured thereby, then your verdict should be in favor of the plaintiff and against the defendant, Erwin Fendelman.'

Defendant says this instruction 'imposed an absolute duty upon defendant to keep a lookout and observe plaintiff standing in the safety zone,' when 'the duty to keep a lookout is simply one of exercising the highest degree of care to keep a lookout and to see and know only what could be seen and known by the exercise of the highest degree of care.' Defendant further says 'the error in imposing this absolute duty is not cured by the subsequent requirement that the jury find that by failing to keep this lookout (absolute and without qualification), the defendant did not exercise the highest degree of care and was negligent, * * * for the obvious reason that the jury was permitted to and would necessarily find that defendant was negligent if he failed to comply with the absolute duty imposed upon him by the instruction'; citing Johnson v. Presley, Mo., 320 S.W.2d 518, 524; Welcome v. Braun, Mo., 319 S.W.2d 586, 588-589; and Toburen v. Carter, Mo., 273 S.W.2d 161, 165. The Johnson case was a humanitarian negligence case in which the main instruction was held to impose on defendant's driver 'an absolute duty to keep a lookout and to know what he could have known by such a lookout.' (Hypothesizing 'that by keeping a lookout * * * could or should have known that plaintiff was in such position of imminent peril'; see also Lay v. McGrane, Mo.Sup., 331 S.W.2d 592, 596.) In the Welcome and Toburen cases, defendants' instructions submitting plaintiffs' contributory negligence, the required findings were 'she could have seen the approaching automobile of the defendant if she had looked to the north' (319 S.W.2d loc. cit. 588); and 'plaintiff could have seen and known of the position of the automobile in which she was seated * * * and could have warned, * * *.' (273 S.W.2d loc. cit. 165). It was correctly held that these instructions, which made no reference to the degree of care required to keep a lookout, placed an absolute duty on the party concerned to know what it was possible to know or see. Instruction 1 did not submit a mere finding of 'could have known or seen' and thus make defendant's liability depend upon what he could possibly have known or seen so as to impose an absolute duty. Instead it made his liability depend on a finding that he 'failed to keep and maintain a careful watch and lookout ahead and laterally * * * and * * * that in so failing * * * the defendant did not exercise the highest degree of care and was negligent.' It would have been clearer and better to have directly required the finding: 'Failed to exercise the highest degree of care to keep and maintain a which and lookout ahead and laterally' and then require a finding of negligence. Nevertheless, our view is that this was the meaning of Instruction 1 and that it did not impose an absolute duty on defendant to see and know that plaintiff was in the safety zone if it was possible at all for him to so see and know that fact. We see no essential difference between this instruction and the lookout instruction held not erroneous in Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, 21. Therefore, we hold there was no prejudicial error in giving Instruction 1.

Instruction 5 was as follows: 'The Court instructs the jury that the burden is upon the defendant to prove that plaintiff was guilty of contributory negligence by the preponderance or greater weight of the credible evidence and unless he has done so your verdict must be in favor of the plaintiff on said issue.'

Defendant says as to this instruction: 'The average juror could well have understood the instruction to mean that unless defendant sustained his burden of proving plaintiff guilty of contributory negligence, then a verdict in favor of plaintiff was mandatory.' The instruction would have been clearer and better if it had used the word 'finding' instead of the word 'verdict'. (See Wheeler v. Bowles, 163 Mo. 398, 408, 63 S.W. 675.) However, this was not a legally incorrect statement and the fact issues in this case were simple and clear. If the jury believed that plaintiff was standing in the safety zone as defendant approached, there could have been no contributory negligence; because the jury could have found contributory negligence only by accepting defendant's version, as submitted in Instruction 4, that plaintiff ran from the sidewalk, when defendant approached, into the right front side of his automobile. We do not believe the jury could have been confused by the use of the word 'verdict' and hold this instruction was not prejudicially erroneous.

Instruction 6 defining the terms 'negligent,' and 'negligence' and 'highest degree of care,' commenced as follows: 'The Court instructs the jury that it is the duty of every operator of an automobile upon the public streets and highways of this State to exercise the highest degree of care so as not to endanger the life or limb of any person.' Defendant says this was an abstract statement of law wholly unrelated to any verdict-directing instruction, was prejudicially misleading and allowed the jury to speculate on other grounds of negligence not submitted. However, this was not a verdict-directing instruction and the trial court in passing on the motion for new trial did not find it to be misleading. Therefore, in view of the simple and clear fact issues in this case hereinabove noted, we hold it was not prejudicially erroneous.

Defendant also contends that the verdict was grossly excessive; that this excessiveness resulted from prejudicial questions, statements and argument of plaintiff's counsel and therefore cannot be cured by remittitur; and that the court erred in permitting these statements and arguments and in refusing to declare a mistrial. However, for the reasons hereinafter stated, we do not find the verdict excessive and we consider that fact in determining the prejudicial effect of the matters raised. At the voir dire, plaintiff's counsel asked several members of the panel such questions as: 'Is there anything that would force you * * * not to fully compensate this woman because it would mean returning a verdict in a very large sum of money?' and 'Would you feel that we can't compensate this lady fully because if we do we will come out with a great big verdict?' and 'If you found in her favor and her injuries and damages add up to a big sum, you wouldn't be afraid to award her a big sum?' and 'Would you refuse to give her the full amount that she was entitled to because it would mean returning a verdict in a big sum of money?' These questions were improper on voir dire because they were argumentative, implying an obligation to return a large verdict for plaintiff before any evidence had been heard. However, no objection was made to any of them until after one panel member was removed by the court, when in answer to the Judge's questions, after plaintiff's counsel's interrogation, she indicated there would be a limit on the amount to which she would agree even if she 'felt that she was entitled to it.' Defendant did not object to that action but thereafter did object to a question...