Grimes v. Red Line Service

• Decision Date: 30 July 1935
• Citation: 85 S.W.2d 767,337 Mo. 743
• Parties: Richard D. Grimes v. Red Line Service, Incorporated, a Corporation, Appellant, and Myrtle E. Baldwin, Defendant
• Court: Missouri Supreme Court

85 S.W.2d 767

337 Mo. 743

Richard D. Grimes v. Red Line Service, Incorporated, a Corporation, Appellant, and Myrtle E. Baldwin, Defendant

Supreme Court of Missouri

July 30, 1935

Rehearing Denied July 30, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Fred E Mueller, Judge.

Reversed and remanded.

Strubinger & Tudor for appellant; Allen, Moser & Marsalek of counsel.

(1) The court erred in giving to the jury Instruction 1, offered by the plaintiff, submitting the plaintiff's case on res ipsa or general negligence, this for the reason that the court also gave Instruction 4, offered by the plaintiff submitting plaintiff's case on specific negligence for appellant's failure to keep or drive its bus as close to the right-hand side of the highway as practicable, the specific negligence supplanting the general negligence and the proof of and instruction on specific negligence rendering the instruction on general negligence reversibly erroneous. Sanders et ux. v. Carthage, 51 S.W.2d 531; Cook v. Union E. L. & P. Co., 232 S.W. 248; Conduitt v. Trenton Gas & Elec. Co., 31 S.W.2d 21; Polokoff v. Sanell, 52 S.W.2d 446; McAnany v. Shipley, 176 S.W. 1079; Carpenter v. Burmeister, 273 S.W. 420, 217 Mo.App. 104; Gibson v. Wells, 258 S.W. 3; Heckfuss v. American Packing Co., 224 S.W. 101. (2) The court erred in giving to the jury instructions 7-A and 8-A, offered by codefendant Baldwin, requiring the jury to find the guilt of said defendant beyond a "doubt" and inferring the negligence of appellant. Taken together, the instructions would mislead the jury and cause them to reasonably infer that the court doubted the charges of negligence as to defendant Baldwin, while having no such doubt as to the negligence of appellant. Brooks v. Roberts, 281 Mo. 551, 220 S.W. 11; Aly v. T. R. R. A., 78 S.W.2d 855; Payne v. Reed, 332 Mo. 343, 59 S.W.2d 48; Barr v. Nafziger Baking Co., 41 S.W.2d 559, 328 Mo. 423. (3) The court erred in giving to the jury plaintiff's Instruction 2, covering concurrent negligence of both defendants and referring the jury to the other instructions given, in view of the error in the other instructions 1, 7-A and 8-A, referred to under points and authorities 5 and 6.

Berthold & Chase for respondent.

(1) The assignment of error as to plaintiff's Instruction 1 is insufficient to permit a review by this court. Kansas City Disinfecting & Mfg. Co. v. Bates County, 201 S.W. 93; Blankenship v. St. Louis Pub. Serv. Co., 71 S.W.2d 725; Nitchman v. United Rys. Co., 203 S.W. 493; Lampe v. United Rys. Co., 202 S.W. 348. (a) Where appellant submits his case to the jury upon the same theory as did plaintiff, appellant is estopped on appeal from asserting that that issue was not in the case. Bruns v. United Rys. Co., 251 S.W. 760; Torrance v. Pryor, 210 S.W. 430; Phillips v. Railroad Co., 226 S.W. 863; State ex rel. M. R. B. & T. Railroad v. Allen, 272 S.W. 925. (b) Where the jury is instructed that if they find the facts as alleged in an instruction given at the request of the defendant, they should find for the defendant, and found for the plaintiff, the jury did not believe that the plaintiff received his injury in the way described by the defendant in the answer and in its instructions, and that issue is eliminated from consideration on appeal. Foster v. Ry. Co., 26 S.W.2d 772. (2) If an instruction of codefendant is erroneous, appellant cannot avail itself of the error, for the instruction defines the rights of a codefendant, and plaintiff is the only one prejudiced thereby. Maher v. Donk Bros. Coal & Coke Co., 20 S.W.2d 894; Neal v. Curtis Mfg. Co., 41 S.W.2d 553; Leighton v. Davis, 260 S.W. 989; Brickell v. Fleming, 281 S.W. 953; Clark v. Railroad Co., 234 Mo. 424, 137 S.W. 583; Beave v. Transit Co., 212 Mo. 355, 111 S.W. 52; Barr v. Nafziger Baking Co., 41 S.W.2d 564. (a) Matters not presented in the argument are waived and abandoned. Burch v. Railroad Co., 40 S.W.2d 693; Wertz v. Railroad Co., 40 S.W.2d 519; Denkman v. Prudential Fixture Co., 289 S.W. 591; Moffett Bros. and Andrews Comm. Co. v. Kent, 5 S.W.2d 395. (3) Plaintiff's Instruction 2 is an approved instruction. Banker v. Wells, 274 S.W. 940; Carr v. St. Louis Auto Supply Co., 239 S.W. 828. (a) Concurrent negligence gives cause of action against any or all of the joint tort-feasors. Carr v. St. Louis Auto Supply Co., 239 S.W. 829; Hohimer v. City Light & Traction Co., 262 S.W. 403; Williams v. St. Louis Pub. Serv. Co., 73 S.W.2d 202; Meyers v. Kennedy, 267 S.W. 811; State ex rel. v. Cox, 274 S.W. 376.

OPINION

Frank, J.

Action to recover damages for personal injuries alleged to have been caused by a collision between an automobile and a motorbus on which plaintiff was a passenger for hire. The judgment below was in favor of plaintiff and against defendant, Red Line Service, Incorporated, in the sum of $ 10,000 from which said defendant appealed. The judgment was in favor of defendant, Myrtle E. Baldwin, from which no appeal was taken.

The collision occurred on St. Charles Rock Road in St. Louis County. The bus was traveling west and the automobile was traveling east on said road. The paved portion of this road is forty feet wide consisting of twenty feet of asphalt in the center and ten feet of concrete on each side of the asphalt. The road runs east and west. There is a street car track running east and west on the ten-foot concrete slab on the south side of said road. The petition charges defendant, Myrtle E. Baldwin, the owner and operator of the automobile, with three specific acts of negligence. The charge against the other defendant, Red Line Service, Incorporated, the owner and operator of the bus, was one of general negligence. The evidence against this defendant was specific, showing exactly how the collision occurred. There was a painted yellow line in the center of the paved highway, dividing the north half of the traveled way from the south half thereof. The bus was traveling thirty-five and the automobile fifteen miles per hour. Plaintiff testified that the automobile was at all times on its proper side of the highway. Plaintiff's version of the occurrence appears from the following quotation from his own testimony:

"In describing the course of this Red Line Service bus that I was a passenger on, as the two vehicles approached each other, the chauffeur of the bus ran right across and ran into Miss Baldwin's automobile. He moved the bus southwest as he approached her automobile. He went south of the yellow line in the middle of the highway before the collision occurred. He was straddling the yellow line before the crash. The front of the Red Line Service bus was south of the yellow line when the collision took place with Miss Baldwin's car; I don't know how about the back end of it. I know the front of the bus was south of the yellow line, and the bus was moving southwest.

"From the first time that I saw the automobile of Myrtle Baldwin until the collision, I saw the automobile all the time. Her automobile was coming down in the tracks about fifteen miles an hour and this bus went right across the road and hit her. Miss Baldwin's automobile never did leave the eastbound street car tracks before the collision. The right-hand side of the bus hit the left-hand side of her machine. When her machine was hit, it was in the car tracks, straddling the street car tracks, facing straight east and still straddling the tracks. The bus was headed southwest when the collision took place."

Defendant, Myrtle E. Baldwin, testified as a witness for plaintiff. Her testimony as to the cause of the collision, in the main, corroborates the story told by plaintiff. She testified that it was raining at the time in question. She described the occurrence as follows:

"I was straddling the northern rail. I went to pull out of the street car track and the machine skidded slightly, and I righted the car, and I saw something coming towards me at a terrific rate, and that was the last I remember until I came to in the Overland Hospital. I endeavored to pull out to the left. My car skidded very slightly, as I remember. It did not skid as far as the center of the highway. The object I saw coming toward me was a Red Line bus. I do not remember the actual collision.

"The bus I saw was going west, over on the south side of the road. It was coming toward me at an angle. I would say a forty-five degree angle; it hit me directly on the driver's seat. The bus was headed southwest."

The driver of the bus described the collision and its cause as follows:

"I did not notice particularly the eastbound automobile until it skidded out of the tracks. I know now it was an Oldsmobile coupe. My attention was attracted to it by the sudden skidding out of the car tracks. When I first saw it, the four wheels were in the rails. When I saw it skidding this way, it was probably sixty feet from my bus. I was then driving with the left wheels of my bus about two feet south of the concrete section on the north side of the highway, which would put the left side of the bus about eight feet from the center of the highway, towards the north.

"While I was driving in this position about thirty miles an hour, all of a sudden I saw this machine skid out in front of me; came all the way across the road. I started to turn to the right; the machine came clear across, so to keep from having a head-on; I turned to the left. About that time, this machine came back and we met right there, about a foot north of the center line of the highway. I was then headed in a southwesterly direction, and the other automobile was headed in a southeasterly direction. The right front -- right step of the motorbus and left side of her car came together."

Other witnesses testified in the case, but the evidence above set...