Griffith v. Delico Meats Products Co.

• Decision Date: 11 December 1940
• Docket Number: 36642
• Citation: Griffith v. Delico Meats Products Co., 145 S.W.2d 431, 347 Mo. 28 (Mo. 1940)
• Parties: John H. Griffith v. Delico Meats Products Company, Appellant
• Court: Missouri Supreme Court

145 S.W.2d 431

347 Mo. 28

John H. Griffith v. Delico Meats Products Company, Appellant

No. 36642

Supreme Court of Missouri

December 11, 1940

Appeal from Jackson Circuit Court; Hon. John M. Cleary Judge.

Affirmed.

James R. Sullivan and Arthur R. Wolfe for appellant.

(1)The trial court erred in giving plaintiff's Instruction 1 and in submitting the case to the jury on the theory of primary negligence, which theory was inapplicable under the issues made by the pleadings and evidence.Defendant's driver proceeding with the green light, cannot be held guilty of primary negligence in failing to anticipate that plaintiff's driver would run the red light in violation of law and could be held liable only for humanitarian negligence after he knew or should have known of the other automobile.Blashfield on Automobile Law, sec. 1028;42 C J., sec. 701;45 C. J., sec. 86;Sponsler v. Schroeder,72 S.W.2d 150;Lord v. Austin,39 S.W.2d 575;Minnis v. Brewing Co.,226 S.W. 1000;Freeman v. Green,186 S.W. 1168;Hornsby v. Fisher,85 S.W.2d 594;Stanton v. Jones,59 S.W.2d 653;Harris v. Moran,182 A. 661;Osborn & Sons v. Howatt,167 So. 469;Teas v. Eisenlord,253 N.W. 797;Zindell v. Central Mut. Ins. Co. of Chicago,269 N.W. 329;Travis v. Eisenlord,239 N.W. 304;Church v. Shaffer,297 P. 1098;Cleveland Ry. Co. v. Goldman,170 N.E. 641;Henderson v. Cleveland Ry. Co.,175 N.E. 864;Graff v. Scott Bros.,172 A. 660;Keir v. Trager,134 Kan. 505, 7 P.2d 50;Crowley v. Fifth Avenue Coach Co.,292 N.Y.S. 475;Morris v. Bloomgren,187 N.E. 2;Cincinnati St. Ry. Co. v. Waterman,198 N.E. 497;United States F. & G. Co. v. Continental Baking Co.,190 A. 768;Halpin v. Tillon,126 A. 666;Hammond v. Emery, Bird, Thayer D. G. Co.,240 S.W. 173;Hangge v. Umbright,119 S.W.2d 384;Pfiffner v. Kroger Grocer & Baking Co.,140 S.W.2d 81.(2)The trial court erred in giving plaintiff's Instruction 1 because it fails to cover and wholly ignores the defense made by the pleadings and the evidence on the vital fact as to which automobile had the right of way given by the traffic signal lights.Alexander v. Hoenshell,66 S.W.2d 168;State ex rel. Ins. Co. v. Cox,307 Mo. 194, 270 S.W. 114;Pence v. K. C. Laundry Serv. Co.,59 S.W.2d 636;Pevesdorf v. Union E. L. & P. Co.,64 S.W.2d 947;Jones v. Ry. Co.,50 S.W.2d 220;Woods v. Moore,48 S.W.2d 206;Cantley v. Plattner,66 S.W.2d 131;Allison v. Dittbrenner,50 S.W.2d 202;Daniels v. Langensand,96 S.W.2d 919;Cuddy v. Shell Petroleum Corp.,127 S.W.2d 30;Alexander v. Barnes Gro. Co.,7 S.W.2d 373;Ryan v. Browne,322 Mo. 633, 17 S.W.2d 271;Dean v. Moceri,87 S.W.2d 222;Merkling v. Ford Motor Co.,296 N.Y.S. 393, 251 A.D. 89.(3)The court erred in giving Instruction 1 for plaintiff because said instruction assumes as true that the automobile in which plaintiff's wife was riding was "following closely" the automobile next in advance as it entered and crossed the street intersection, thus prejudicially assuming a highly controverted factual issue in the case.Counts v. Thomas,63 S.W.2d 420;Hengelsberg v. Cushing,51 S.W.2d 189;Daniel v. Artesian Ice & C. S. Co.,45 S.W.2d 553;McCombs v. Ellsberry,337 Mo. 491, 85 S.W.2d 138;Barr v. Nafziger Baking Co.,328 Mo. 423, 41 S.W.2d 599;Schimmelpfenning v. Wells,24 S.W.2d 160;Kirkham v. Jenkins Music Co.,104 S.W.2d 237;Sheppard v. Travelers Protective Assn.,104 S.W.2d 788;Kamer v. M.-K.-T. Ry. Co.,32 S.W.2d 1084;Hockley v. Hulet, etc., Co.,16 S.W.2d 753;Eudy v. Fed. Lead Co.,220 S.W. 505;Holloway Cotton Co. v. Railroad Co.,77 S.W.2d 192;Shephard v. Century Elec. Co., 299 S.W. 92.

Homer A. Cope, L. V. Copley, Cope & Hadsell and Walter A. Raymond for respondent.

(1)The court committed no error in giving plaintiff's Instruction 1 submitting the case on the theory of primary negligence.Plaintiff's wife was a guest in the rear seat of the other automobile and is entitled to recover regardless of any negligence of the driver of that automobile which merely concurred with the negligence of the defendant's truck driver.Decker v. Liberty,39 S.W.2d 548;Crowley v. Worthington,71 S.W.2d 745;Nichols v. Schleusner,227 Mo.App. 1106, 59 S.W.2d 711;Treadway v. United Rys. Co.,300 Mo. 156, 253 S.W. 1041;Rawie v. C., B. & Q. Ry. Co.,310 Mo. 72, 274 S.W. 1038;Fawkes v. Natl. Refining Co.,341 Mo. 630, 108 S.W.2d 11;Bradley v. Becker,321 Mo. 405, 11 S.W.2d 10;Nyberg v. Wells,14 S.W.2d 531;State ex rel. Sirkin & Needles Mov. Co. v. Hostetter,340 Mo. 211, 101 S.W.2d 55;Sullivan v. Union E. L. & P. Co.,331 Mo. 1065, 56 S.W.2d 100;Bramblett v. Harlow,75 S.W.2d 632;Vitale v. Duerbeck,332 Mo. 1184, 62 S.W.2d 562;Perryman v. Mo. Pac. Ry. Co.,326 Mo. 176, 31 S.W.2d 7;Kamer v. M.-K.-T. Ry. Co.,326 Mo. 792, 32 S.W.2d 1083;Larey v. M.-K.-T. Ry. Co.,333 Mo. 949, 64 S.W.2d 684;State ex rel. Robertson v. Hope,102 Mo. 410, 14 S.W. 989;Fenton v. Hart,73 S.W.2d 1040;Jennings v. Cooper,230 S.W. 328;Wilson v. Thompson,133 S.W.2d 334;Borgstede v. Waldbauer,337 Mo. 1205, 88 S.W.2d 378;Stanton v. Jones,332 Mo. 631, 59 S.W.2d 652;Root v. Q., O. & K. C. Ry. Co.,237 Mo. 640, 141 S.W. 614;Gately v. St. L.-S. F. Ry. Co.,332 Mo. 1, 56 S.W.2d 63.(2)The trial court committed no error in giving plaintiff's Instruction 1.That instruction did not ignore the defense as to which automobile had the right of way.If it had, the error would have been cured by defendant's Instruction 5 submitting that issue.Smith v. Kansas City Pub. Serv. Co.,328 Mo. 979, 43 S.W.2d 555;Zeikle v. St. Paul & K. C. S. L. Ry. Co.,71 S.W.2d 155;Gately v. St. L.-S. F. Ry. Co.,332 Mo. 1, 56 S.W.2d 62;Warren v. Giudici,330 Mo. 483, 50 S.W.2d 636;Root v. Q., O. & K. C. Ry. Co.,237 Mo. 640, 141 S.W. 614.(3)Plaintiff's Instruction 1 is not erroneous as assuming any fact therein submitted.Any such danger is further guarded against by plaintiff's Instruction 2 cautioning against the assumption of any facts in the instructions.Pogue v. Rosegrant,98 S.W.2d 530;Pearson v. Kansas City,78 S.W.2d 83;Reith v. Tober,8 S.W.2d 611;Green v. Kansas City,107 S.W.2d 105;Allen v. Purvis,30 S.W.2d 201;McAnany v. Shipley,196 S.W. 379;Jackson v. Madden,72 S.W.2d 856;Mabe v. Gille Mfg. Co., 219 Mo.App. 234, 271 S.W. 1028.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is an action under the compensatory section of our death statute, Sec. 3263, R. S. 1929, Mo. Stat. Ann., p. 3371, for damages for the death of plaintiff's wife, Edith Griffith, alleged to have been caused by the negligence of defendant's truck driver.Verdict and judgment for $ 10,000 went for plaintiff and defendant appealed.

Mrs. Griffith received fatal injuries January 27, 1938, when the car in which she was riding as a guest was struck by defendant's truck on the intersection of 27th Street, an east and west street, and Troost Avenue, a north and south street, in Kansas City, Missouri.The acts of negligence submitted were failure to keep a vigilant lookout, failure to sound a warning, failure to drive to the right of the center of the street, and excessive speed.

The answer was a general denial and a plea that the sole cause of Mrs. Griffith's death was the negligence of the driver of the car in which she was riding, in that he drove at an excessive speed, and "failed to keep a proper and sufficient lookout ahead and laterally," as he approached, entered, and crossed the intersection, and that he entered the intersection "against the red traffic control signal light."The reply was a general denial.

Plaintiff's case shows the facts as follows: January 27, 1938, plaintiff's wife attended the church funeral of Mrs. Dora Gangel, and when fatally injured was on the way (traveling east on 27th Street) to the cemetery and was riding as a guest in a car, in the funeral procession, driven by Thomas A. Flanigan.There were six in the car, three in each seat.Plaintiff's wife was sitting between two women in the rear seat.There were 25 or 30 cars in the procession, and the first 4 or 5, including the hearse, carried funeral flags.There was a space from 12 to 15 feet between the cars in the procession, which moved at 12 or 15 miles per hour.There were traffic lights at the intersection of Troost Avenue and 27th Street, and for north and south traffic on Troost, the green period was 17 seconds, amber 4 seconds, and red 21 seconds.For east and west traffic on 27th Street, the green period was 15 seconds, amber 4 seconds, and red 21 seconds.When the procession entered the intersection of 27th Street and Troost Avenue, both north and southbound traffic on Troost stopped.The car, in which Mrs. Griffith was riding, was 8 or 12 feet behind the next car, in the procession, in front, and entered the intersection on the east and west green light, and at a speed of 12 or 15 miles per hour.At that time, 4 or 5 northbound cars were standing on Troost immediately south of the intersection, and 2 or 3 cars were waiting on the north side of the intersection.After the Flanigan car had entered the intersection, defendant's truck, south bound, without warning and against the red light, drove into the intersection at a speed of 30 or 40 miles per hour, and without swerving or slackening speed, struck the Flanigan car about midway on the left side at a point on the intersection about five feet south of the center line of 27th Street, and a few feet east of the center line of Troost Avenue.

Defendant's case: R. H. Armstrong, driver of defendant's truck testified that he entered the intersection from the north and on the north and south green light, and at a speed of 16 or 18 miles per hour; that he first saw the Flanigan car when the front end of the truck "was about eight feet into the...