Hamre v. Conger

• Decision Date: 08 March 1948
• Docket Number: 40695
• Citation: 209 S.W.2d 242,357 Mo. 497
• Parties: Cressie Hamre, Appellant, v. Floyd Conger and Don Conger
• Court: Missouri Supreme Court

209 S.W.2d 242

357 Mo. 497

Cressie Hamre, Appellant, v. Floyd Conger and Don Conger

No. 40695

Supreme Court of Missouri

March 8, 1948

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Ben W. Swofford, Robert L. Jackson and Laurence R Smith for appellant.

(1) The trial court in sustaining respondents' motion for a new trial because of alleged error in Instructions 1 and 2 was not acting within the legitimate scope of its judicial discretion. But was ruling upon a matter of law and the correctness of its action in so doing must be reviewed upon this appeal as a matter of law and not of discretion. Schipper v. Brashear Truck Co., 132 S.W.2d 993; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; Flint v. Loew's St. Louis Realty & Amusement Corp., 344 Mo. 310, 126 S.W.2d 193. (2) All assignments of error in respondents' motion for a new trial must be deemed to have been overruled except those specifically set forth in the order sustaining said motion for a new trial. Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518; Millar v. Madison Car Co., 130 Mo. 517, 31 S.W. 574; Manthey v. Kellerman Contracting Co., 311 Mo. 147 277 S.W. 927. (3) The words "Due, Proper and Reasonable" care did not define the degree of care required to be exercised by plaintiff and were not in themselves erroneous. When applied to the case at bar those terms could only mean "Highest Degree of Care." Sec. 8383, R.S. 1939; Black's Law Dictionary, pp. 625, 1446, 1499; Riggs v. Metropolitan Street Ry. Co., 216 Mo. 304, 115 S.W. 969; Sirounian v. Terminal Railroad Assn. of St. Louis, 236 Mo.App. 938, 160 S.W.2d 451; King v. Friederich, 43 S.W.2d 840; McCleary v. Chicago, B. & Q.R. Co., 264 S.W. 376; Stewart v. St. Louis Pub. Serv. Co., 75 S.W.2d 634. (4) Instructions 1 and 2 must be read with and in the light of all the instructions in the case, and when so considered, the law of the case was properly given to the jury, and the court erred in sustaining the motion for a new trial. Engleman v. Railway Express Agency, Inc., 340 Mo. 360, 100 S.W.2d 540; Perkins v. Terminal R. Assn. of St. Louis, 340 Mo. 868, 102 S.W.2d 915; Cornovski v. St. Louis Transit Co., 207 Mo. 263, 106 S.W. 51; King v. Friederich, 43 S.W.2d 840; Conroy v. St. Joseph Ry., Light, H. & P. Co., 345 Mo. 592, 134 S.W.2d 93; Smith v. Gately Store, 24 S.W.2d 200; Wheeler v. Breeding, 109 S.W.2d 1237; Dietderick v. Missouri Iron & Metal Co., 9 S.W.2d 824; Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449.

Arthur C. Popham, Arthur C. Popham, Jr., and Sam Mandell for respondents; Popham, Thompson, Popham, Mandell & Trusty of counsel.

(1) On this appeal respondents have the right to ask this court to consider any errors committed against them below and for which their motion for new trial should have been sustained. Higgins v. Higgins, 243 Mo. 164, 147 S.W. 962; St. Charles Sav. Bank v. Denker, 275 Mo. 607, 205 S.W. 208; Russell v. Union Electric Co., 238 Mo.App. 1074, 191 S.W.2d 278. (2) On his own testimony, plaintiff is guilty of contributory negligence as a matter of law. Sheffer v. Schmidt, 324 Mo. 1042, 26 S.W.2d 592; Van Sickel v. F.M. Stamper Co., 198 S.W.2d 539; State ex rel. Kansas City Pub. Service Co. v. Bland, 354 Mo. 79, 188 S.W.2d 650; Wininger v. Bennett, 104 S.W.2d 413; Wagner v. Wells, 261 S.W. 682; Jackson v. Southwestern Bell Tel. Co., 281 Mo. 358, 219 S.W. 655; Danzo v. Humfeld, 180 S.W.2d 722. (3) Plaintiff's given Instruction 1 correctly told the jury that it was the duty of the defendant to exercise the highest degree of care in the management of his motor vehicle, but erroneously directed the jury to find that plaintiff was not guilty of contributory negligence if he "was using reasonable and proper care for his own safety," since plaintiff was also under a duty to use the highest degree of care. Chamberlain v. Hamilton, 93 S.W.2d 1014; Wilson v. Chattin, 335 Mo. 375, 72 S.W.2d 1001; Stewart v. Jeffries, 224 Mo.App. 1050, 34 S.W.2d 560; State ex rel. Grear v. Ellison, 182 S.W. 961; Grossman v. Wells, 314 Mo. 158, 282 S.W. 710. (4) Plaintiff's given Instruction 2 correctly told the jury that it was the duty of the defendant to exercise the highest degree of care in the management of his motor vehicle, but erroneously directed the jury to find that plaintiff was not guilty of contributory negligence if he "was at all times exercising due care for his own safety," since plaintiff was also under a duty to use the highest degree of care. Cases under (3), supra. (5) The errors in plaintiff's instructions 1 and 2 were not cured by the correct instructions given at the request of the defendants. State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351; State ex rel. Powell Bros. Truck Lines, Inc., v. Hostetter, 345 Mo. 915, 137 S.W.2d 461; Mott v. Chicago, R.I. & P. Ry. Co., 79 S.W.2d 1057; Newkirk v. City of Tipton, 234 Mo.App. 920, 136 S.W.2d 147; Stewart v. Jeffries, supra; Wilson v. Chattin, supra; Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449. (6) The court erred in giving plaintiff's Instruction 4 which erroneously told the jury that if they believed that any witness had wilfully sworn falsely they were at liberty to disregard and disbelieve that part of such witness's testimony or the whole of such witness's testimony. State v. Willard, 346 Mo. 773, 142 S.W.2d 1046; Farmers' State Bank v. Miller, 26 S.W.2d 863. (7) The trial court erred in receiving, over the objections of the defendants, the conclusions of plaintiff's witness Harrison, the highway patrolman, concerning the point of impact. Trowbridge v. Fleming, 269 S.W. 610.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Plaintiff (appellant) brought this suit against Floyd and Don Conger, father and minor son, for personal injuries resulting from a collision between the car the son was driving and owned by the father, and the truck driven by plaintiff. Defendant Floyd Conger, the father, counterclaimed for $ 2750 against plaintiff for damage to his car and loss of services of and medical care for his minor son. The son counterclaimed for $ 10,000 against plaintiff for personal injuries received in the collision. Before the commencement of the trial plaintiff dismissed as to defendant Floyd Conger. The jury returned a verdict in favor of plaintiff and against the minor son, Don Conger, for $ 10,000, and found in favor of plaintiff on both counterclaims. Don Conger's motion for a new trial on the $ 10,000 judgment against him and on his counterclaim were sustained and Floyd Conger's motion for new trial on his counterclaim was sustained. As ground for sustaining these motions the trial court specified error in plaintiff's instructions 1 and 2. Plaintiff appealed.

Plaintiff was maintenance technician of airplane signals for the Civil Aeronautics Administration at Kansas City, and at the time of the collision was on his way in his employer's Chevrolet truck to repair what is termed a fan marker at Excelsior Springs. He was traveling east on U.S. highway 69, a paved highway. Defendants reside at Independence. It was Sunday afternoon; defendant Don Conger had his father's car, a Pontiac, and he and three other boys had driven to Excelsior Springs. At the time of the collision Don and the other boys were returning to Independence (Don driving) and were going west on U.S. highway 69. State highway 33, a north and south gravel road, intersects U.S. highway 69 west of Excelsior Springs. Independence is south of this intersection, and Don was in the process of turning left (south) at the time of the collision.

Plaintiff alleged several grounds of negligence but submitted his case on the alleged negligence of Don in turning his car to the left under the conditions obtaining. The counterclaims of defendants were submitted on the humanitarian rule that plaintiff could have stopped or slowed down and avoided the collision. Defendant Don Conger in his answer to plaintiff's petition charged plaintiff with contributory negligence, and it is contended that plaintiff was guilty of contributory negligence as a matter of law.

The facts, most favorably stated for plaintiff, are as follows The intersection of U.S. highway 69 and State highway 33 is at the top of a small hill. The foot of the grade on the west is about 500 feet from the intersection and from the foot of the grade visibility to the east did not extend east of the intersection, but only to the intersection. Near the intersection on the south side of highway 69 was a slow sign. It was a clear day; roads were dry. Plaintiff approached the intersection from the west at about 45 miles per hour on the south side of highway 69. There was no eastbound traffic on highway 69 between plaintiff and the intersection. It was about 4:30 p.m. and there was considerable traffic on highway 69 going west towards Kansas City; "typical Sunday afternoon traffic approaching Kansas City; it was just a continuous string of cars." One hundred feet west of the intersection visibility extended 100 feet east of the intersection to the extent that the top of a car could be seen. Plaintiff was about 50 feet west of the intersection when he first saw the Conger car about 150 feet away "coming up the hill" east of the intersection and directly in front of plaintiff and south of the line of the westbound traffic on highway 69. There were, at that time, about a half dozen westbound cars on highway 69 on and immediately east and west of the intersection. The speed of these was 35 or 40 miles per hour. The collision occurred about 18 inches south of the south side of the concrete slab of highway 69 and near the east side of highway 33. According to defendants' evidence the collision occurred a few feet south of the slab on...