Graham v. St. Louis-Red Bud-Chester Bus & Serv. Co.

• Decision Date: 04 February 1941
• Docket Number: No. 25553.,25553.
• Citation: 147 S.W.2d 205
• Court: Missouri Court of Appeals
• Parties: GRAHAM v. ST. LOUIS-RED BUD-CHESTER BUS & SERVICE CO.

147 S.W.2d 205

GRAHAM v. ST. LOUIS-RED BUD-CHESTER BUS & SERVICE CO.

No. 25553.

St. Louis Court of Appeals. Missouri.

February 4, 1941.

Rehearing Denied February 18, 1941.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by Marianna Graham against the St. Louis-Red Bud-Chester Bus & Service Company for injuries sustained in collision of automobile with defendant's bus. From a judgment granting plaintiff a new trial after verdict for defendant, the defendant appeals.

Judgment affirmed and cause remanded.

Strubinger, Tudor & Tombrink, of St. Louis, for appellant.

Sidney B. McClanahan, Richard T. Brownrigg, and Charles P. Muldoon, all of St. Louis, for respondent.

HUGHES, Presiding Judge.

This action was instituted in the Circuit Court of the City of St. Louis, plaintiff seeking to recover damages for personal injuries alleged to have been sustained on March 18, 1935, in the collision of an automobile in which she was riding as the guest of another person with a bus owned and operated by the defendant. The collision occurred at the intersection of Eighth Street and Trendley Avenue in East St. Louis, Illinois. The charge of negligence on which plaintiff went to the jury was that the driver, who was in charge of and operating the bus, saw or by the exercise of ordinary care could have seen the automobile in which plaintiff was riding and that there was imminent danger of a collision between defendant's said bus and the automobile in which plaintiff was riding, in time thereafter by the exercise of ordinary care, with the means and appliances at hand and with safety to defendant's said bus and to the persons therein, to have avoided said collision and avoided injuring plaintiff, by stopping said bus or by checking its speed or by diverting its course toward the west, but nevertheless he carelessly and negligently failed to exercise said degree of care in any one of said particulars and carelessly and negligently drove said bus against the automobile in which plaintiff was riding and thereby caused the collision and caused plaintiff to be injured.

The defendant based its defense upon the grounds that the driver of the car in which the plaintiff was riding was guilty of negligence in driving into Eighth Street without bringing the automobile to a complete stop at a stop sign on Trendley Avenue for automobiles approaching and crossing Eighth Street, in accordance with the City Ordinance of East St. Louis and also in accordance with the Illinois Statute, both of which were pleaded in the answer and were offered in evidence, and also because such negligence on the part of said driver was the sole proximate cause of the collision and plaintiff's alleged injury. The defense was also based upon contributory negligence on the part of plaintiff herself in permitting herself to be driven into and across Eighth Street in said automobile without warning the driver of said automobile to stop at said stop sign when plaintiff knew, or in the exercise of ordinary care for her own safety would have known, of the presence of said stop sign, and also because the plaintiff permitted herself to be driven on the occasion in question at an excessive and dangerous rate of speed.

The case came to trial on May 22, 1939, and on May 23, 1939, after conflicting evidence on the issues thus presented, the jury returned a verdict in favor of defendant. Plaintiff's motion for a new trial was later sustained by the trial judge on the grounds alleged therein as follows: "2. Because the court erred in giving each and every instruction given by the court at the request of defendant," and "4. Because the instructions given by the court are contradictory and conflicting."

From the order sustaining plaintiff's motion for a new trial defendant appeals.

The trial court gave ten instructions at the request of defendant, and although the record as above stated brings in question each and every instruction given at defendant's request, in fact only one of said instructions seems to have been considered by the trial court in passing on the motion for a new trial, that being instruction No. 6. In this court plaintiff seeks to justify the granting of a new trial on two of defendant's instructions, No. 6 and No. 10.

At the time of sustaining plaintiff's motion for a new trial the court filed a memorandum giving the reason for the ruling, and while there is no provision of law for such a memorandum and it is not properly a part of the record, it is of some value as indicating specifically what occurred in the trial court and the theory on which the case was there tried, and on which the motion for a new trial was sustained. It is as follows:

"I am of the opinion that the instruction criticised by plaintiff's counsel (No. 6) is erroneous and misleading and prejudicial, whether plaintiff's case was submitted on primary negligence or on humanitarian negligence, in that it fails to call attention to the negligence of the defendant in the operation of the bus. I think this ruling is sustained by the case of McGrath v. Meyers 107 S.W.2d 792, which is a case similar to the instant case The misleading feature of this instruction is that it tells the jury that if the negligent acts of the driver, which are specifically pointed out, were the sole cause of the injury, then the plaintiff cannot recover, yet it is true that the negligence of the driver cannot be imputed to the plaintiff. It was essential to a correct and fair understanding of this question that the jury be told that the defendant's negligence would authorize plaintiff's recovery. In that case the Court, upon this point, says: `Such instruction (meaning one like the instruction here) should, in order to avoid confusion and conflict, contain the sole cause provision, and what we may term a not due to negligence of the defendant provision, as in the Doherty case [Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742].'

"I think the motion for new trial should be sustained on this ground."

Defendant's instruction No. 6 is as follows: "The Court instructs the jury that while the negligence, if any, of the driver of the automobile in which the plaintiff was riding at the time of the collision mentioned in the evidence cannot be imputed to the plaintiff, nevertheless, if you find and believe from the evidence in this case that the driver of the automobile in which the plaintiff was riding drove said automobile into and across said Eighth street at the place mentioned in the evidence without bringing said automobile to a full stop as near the right of way line as possible before driving upon said Eighth street, if you find the driver of said automobile did so, and drove said automobile immediately in the path of the defendant's bus, if so, and if you further find that such driving and operation of said automobile, if you so find, was the sole proximate cause of the collision mentioned in the evidence, and the plaintiff's injuries, if any, then the plaintiff cannot recover in this case and your verdict must be in favor of the defendant."

In considering whether this instruction No. 6 is contradictory and conflicting with other instructions, it is necessary to set out plaintiff's instruction No. 1. Plaintiff had only two instructions, No. 1 covering the right of recovery, and No. 2 on the measure of damages. Plaintiff's instruction No. 1 is as follows: "The Court instructs you that, if you find and believe from the evidence that on, to wit, the 18th day of March, 1935, an automobile in which plaintiff was riding, which was being driven eastwardly by another person on Trendly avenue and across Eighth street in the City of East St. Louis and State of Illinois, was run against and collided with by a motor bus of the defendant, which was being operated and driven by the defendant southwardly on said Eighth street and across Trendley avenue, and if you further find and believe from the evidence that plaintiff was thereby caused to be injured, and if you further find and believe from the evidence that defendant's chauffeur, who was in charge of and operating its said bus saw, or by the exercise of ordinary care could have seen the automobile in which plaintiff was riding and that there was imminent danger of a collision, if you find there was such danger, in time, after he saw or by the exercise of ordinary care could have seen said dangerous situation, if any, by the exercise of ordinary care and with the means and appliances at hand and with safety to defendant's said bus and to the persons therein to have avoided said collision and have prevented plaintiff from being injured, by stopping said bus or diverting the course of said bus to the west, and if you further find and believe from the evidence that defendant's said chauffeur carelessly and negligently failed and neglected to exercise said degree of care in either or both of said particulars, and if you further find and believe from the evidence that the said negligence of the defendant, if any, directly contributed to cause the collision shown in the evidence and plaintiff's injuries, if any, and if you further find and believe from the evidence that plaintiff, at and before the time of the collision shown in the evidence, was riding as the guest of another person in an automobile which was being...