Guiley v. Lowe

• Decision Date: 09 June 1958
• Docket Number: No. 45670,No. 2,45670,2
• Citation: 314 S.W.2d 232
• Parties: Doris K. GUILEY, Respondent, v. Albert S. LOWE and Mrs. Kenneth Brizendine, Appellants
• Court: Missouri Supreme Court

Page 232

314 S.W.2d 232

Doris K. GUILEY, Respondent, v. Albert S. LOWE and Mrs. Kenneth Brizendine, Appellants.

No. 45670.

Supreme Court of Missouri, Division No. 2.

June 9, 1958.

Rufus Burrus, Independence, for appellants.

George M. Hare, Independence, F. L. Thompson, Sam Mandell, Kansas City, for respondent. Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.

EAGER, Judge.

The plaintiff-respondent sued the defendants-appellants for personal injuries incurred in an intersectional automobile collision on May 24, 1950. We shall refer to the parties as they appeared below. Plaintiff alleged negligence in failing to keep a lookout ahead and laterally, excessive speed, and negligence in driving into the intersection against a red traffic control light. The speed allegation was not pressed at the trial. The defendant Mrs. Brizendine was driving defendant Lowe's car at his request and on a mission for him. The collision occurred in the northern part of Independence at the intersection of U. S. Highway No. 24 and Liberty Street. Both defendants counterclaimed for personal injuries and Lowe also for property damage. The jury awarded plaintiff $8,200 against both defendants and found against both defendants on their counterclaims. Judgment was entered accordingly, motion for new trial was overruled, and this appeal followed in due course.

Plaintiff had for some years been working as a restaurant cook; she was 34 years of age at the time of the accident. The car she was driving was a 1939 Plymouth and defendants' car was a 1938 2-door Ford. Plaintiff was proceeding east, alone, on Highway 24 (which we shall refer to as No. 24), and the defendants, with two passengers, were traveling north on Liberty Street. Since there is no contention that plaintiff failed to make a submissible case, we will not be required to state the evidence in great detail. Plaintiff testified: that she was familiar with this intersection and on this occasion was driving in the southern, or outside, lane of the 4-lane No. 24; when she was just west of Osage Street, the next cross street west of Liberty, she saw that her traffic light at the Liberty intersection was red; she was then traveling at approximately 25 miles an hour; just after she passed Osage the light at Liberty Street for eastbound traffic turned green, and remained green until after the collision; there was a terrace and a retaining wall on the southwest corner of the Liberty Street intersection, which obscured somewhat the vision to the south as one approached it on No. 24; at some time before entering the intersection plaintiff slackened her speed to 15-20 miles an hour. She further testified: that she saw defendants' car when it was 25-50 feet south of the south line of No. 24, and when she, plaintiff, was still west of the intersection; that defendants' car then seemed to be slowing down so she proceeded, looking to her left to see if anything was approaching from that direction; that when she looked back defendants' car was 'right there at me,' and that it had not stopped; that she, plaintiff, applied her brakes and swerved to the left, but the impact came almost immediately. The front of plaintiff's car, actually more to the right front, struck the left side of defendants' car at approximately its mid-section; plaintiff testified that the impact occurred in the 'passing lane' or inside lane for eastbound traffic on No. 24. Plaintiff further testified that when she asked defendant Brizendine why she hadn't stopped for the light, the latter said, as plaintiff recalled, that she 'didn't see a light.' Plaintiff was corroborated substantially by a witness who was driving slightly behind her and to her left and who was able to stop soon enough to escape being involved.

Defendant Brizendine, corroborated to some extent by her passengers, testified: that when she was some distance south of No. 24 on Liberty Street she saw that the traffic light was red, and that she gradually slowed down to give it a chance to change; that she had nearly come to a stop before actually reaching the intersection; that she had looked to her left when she was about 50 feet to the south and had seen no car; that the light changed when the front of her car was about two feet from the south line of No. 24, and she shifted gears to proceed, intending to turn right on No. 24; that just at that time plaintiff's car struck hers, as she 'had just entered the highway'; that the impact pushed at least part of her car against the east curb of Liberty Street; that she did not see plaintiff's car because her eyes were 'centered on the light,' and that she did not look back to her left 'the second time'; that she only looked to the left once because she 'had the light'; that at ten feet from the intersection there was nothing to prevent her from seeing traffic approaching from her left, and that she was then moving at 4-5 miles an hour and could have stopped within five feet or less. It was defendants' theory that plaintiff struck their car before it got fully out into the intersection. There was much controversy concerning the position of the cars after the collision, which we need not discuss. Nor need we, at this point, relate plaintiff's injuries; so much of that as may be necessary will be discussed in connection with plaintiff's damage instruction.

The first point made by the defendants is that plaintiff's principal verdict-directing instruction was reversibly erroneous in failing to negative plaintiff's contributory negligence, and in the it was broader than the negligence pleaded in the petition. The instruction does not require a finding that plaintiff was not negligent. Defendants cite cases, generally, to the effect that it is error to omit all reference to an essential fact or element in a verdict-directing instruction. We need not discuss those cases. Plaintiff, on the other hand, insists that there was no sufficient plea of contributory negligence and that plaintiff was under no duty to include that issue in her instruction when the defense was not pleaded, citing: Brady v. St. Louis Public Service Co., Mo., 233 S.W.2d 841, 844; Cox v. Consolidated Cabs, Inc., Mo.App., 290 S.W.2d 658, 661. On the day of trial defendants amended their joint and separate answers so as to allege the following: 'That if any injury or damage had been or was sustained or suffered by the plaintiff herein, the same was sustained or suffered as a direct result of her own carelessness and negligence.' Plaintiff relies upon White v. Powell, 346 Mo. 1195, 145 S.W.2d 375, and the cases therein cited, as holding that such is not a plea of contributory negligence; and we note also Smith v. Kansas City Public Service Co., Banc, 328 Mo. 979, 43 S.W.2d 548, 555. Counsel for defendants in their brief and reply brief apparently regard plaintiff's objection to the plea as one going to its generality, citing cases to the effect that a general plea of contributory negligence is good if not attached by motion. State ex rel. Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673; Kobusch v. Ruberoid Co., 355 Mo. 48, 194 S.W.2d 911. That is not the question primarily involved here; the question actually is whether, as stated in Smith, supra, this allegation was 'merely a denial of plaintiff's cause of action,' since it actually sought to cast all negligence upon plaintiff and thereby sought to exonerate the defendants. Our forms of pleading have been substantially liberalized under the Civil Code (section 509.040 RSMo 1949, V.A.M.S.) but there is still a substantive difference between contributory negligence and proximate cause negligence. In this instance, however, we find it unnecessary to decide whether this allegation might, under any circumstances, have operated as a plea of contributory negligence, for the reasons now to be stated. In passing, however, we may say that it is certainly not to be recommended.

It has been stated in various cases that if contributory negligence has been pleaded and if there is substantial evidence thereof, it is error for a plaintiff to fail to require a finding upon that issue in his verdict-directing instruction, unless such error is cured by an instruction submitting that issue on defendant's behalf. Marsh v. Heerlein, Mo., 299 S.W.2d 441; Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 564. The rule has been criticized as illogical, in that it permits a conflict in instructions where the defendant does submit the issue and plaintiff does not, and also for the reason that the defendant should be held to have abandoned that affirmative defense unless he does choose to submit an instruction upon it. This point is not briefed here, and we do not consider the present case as a suitable vehicle for a reconsideration of the rule. We do, however, note these substantial criticisms of the rule.

In this case we have determined that the issue of plaintiff's negligence, as made by the defendants, was of direct and proximate cause negligence (at least suggestive of sole cause negligence), and that contributory negligence, as such, was not an issue; in other words, these combatants joined issue on the question of which one was guilty of such negligence, pro or con, as to constitute the direct and proximate cause of the collision; in this, we have construed the amendment to the answers in the light of the instructions given on behalf of the defendants. Defendants' given instructions refer to plaintiff's negligence in several places, but never as 'contributory' negligence, nor was the word 'contributed' so used; thus, plaintiff's alleged negligence was submitted in Instruction 4 as negligence directly resulting in the collision and thereby requiring verdicts for the defendants both on their counterclaims and on plaintiff's petition. That instruction did, it is true, negative contributory negligence on the part of the defendants, but that finding could only apply to their...