Hopkins v. Highland Dairy Farms Co.

• Decision Date: 12 December 1941
• Docket Number: 37608
• Citation: 159 S.W.2d 254,348 Mo. 1158
• Parties: Savannah Hopkins v. Highland Dairy Farms Co., a Corporation, and James A. Flavin, Defendants-Appellants
• Court: Missouri Supreme Court

159 S.W.2d 254

348 Mo. 1158

Savannah Hopkins v. Highland Dairy Farms Co., a Corporation, and James A. Flavin, Defendants-Appellants

No. 37608

Supreme Court of Missouri

December 12, 1941

Rehearing Denied February 26, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Affirmed.

Jones Hocker, Gladney & Grand and Lon Hocker, Jr., for appellants.

Instruction No. 6 correctly advised the jury. (1) The instruction was justified by the evidence. (2) It defined the submitted negligence of the plaintiff's driver. Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487; Stanich v. Western Union, 348 Mo. 188. (3) It properly omitted reference to contributory negligence and imputed negligence. Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Shields v. Keller, 348 Mo. 326. (4) It was not erroneous for failure to use the phrase "sole cause." Stanich v. Western Union, 348 Mo. 188. (5) It was not improper for failure to require an express finding of no negligence; lack of proximate cause being a complete defense. State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 869; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7. (6) Error cannot be predicated upon the submission of an issue likewise submitted by the litigant urging the error. Johnson v. C. & E. I. Ry. Co., 334 Mo. 22, 64 S.W.2d 674. (7) The proximate cause of a calamity can be the concurrent negligence of two or more tort-feasors. Jenkins v. Springfield Traction Co., 230 Mo.App. 1235, 96 S.W.2d 620.

Everett Hullverson for respondent; Orville Richardson of counsel.

(1) The instruction was not supported by the evidence. There was no evidence that Piper's speed was the sole cause of the collision. Flavin's admitted failure to look to the north for approaching cars until in the middle of the intersection was negligence at least contributing to cause the collision. Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Alexander v. St. Louis-S. F. Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023; Woods v. Moore, 48 S.W.2d 202; Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Parkville Mining Co. v. Massman, 83 S.W.2d 128; Sullivan v. Union Elec. L. & P. Co., 331 Mo. 1065, 56 S.W.2d 97. It is error to give a sole-cause instruction not justified by the evidence. Crews v. K. C. Public Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Collins v. Leahy, 344 Mo. 250, 125 S.W.2d 874. (2) The instruction erroneously failed to submit sufficient facts which, if found, would support the conclusion that defendants were not negligent, or that their negligence was not a contributory cause of the collision, and that Piper's negligence was "the direct and proximate cause" (sole cause?) of the collision. Long v. Mild, 149 S.W.2d 853; McGrath v. Myers, 341 Mo. 412, 107 S.W.2d 792; Shields v. Keller, 153 S.W.2d 60; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Stanich v. Western Union Tel. Co., 153 S.W.2d 54. Compare approved instructions in the following cases, wherein the facts were sufficiently hypothesized to show sole-cause situations and to negate defendants' negligence: Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742; Long v. Mild, 149 S.W.2d l.c. 859; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562. (3) The instruction was erroneously misleading since it was abstractly stated, and did not definitely refer to Piper's speed at the place of the collision or the circumstances and conditions then and there existing. Long v. Mild, 149 S.W.2d 853; Bramblett v. Harlow, 75 S.W.2d 626. Compare also right-of-way instructions held erroneous for similar reasons: McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Pappas Pie & Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793. Also wrong-side-of-the-road instructions: Collins v. Beckman, 79 S.W.2d 1052, 1055; Lochmoeller v. Kiel, 137 S.W.2d 625. (4) The instruction erroneously failed to direct the jury that Piper's negligence must be the sole cause of the collision. It was misleading in implying that there was only one direct and proximate cause, whereas there might have been several. (a) There may be many direct and proximate causes. This instruction infers, if not directs, that there could be only one cause: either the negligence of Flavin or that of Piper. King v. Rieth, 341 Mo. 467, 108 S.W.2d 1. (b) The instruction is at least open to the erroneous interpretation that appellants might be relieved of all liability to plaintiff if Flavin was less culpable of negligence than Piper. General Box Co. v. Mo. Utilities Co., 331 Mo. 845, 55 S.W.2d 442. (c) Although the failure to use the exact phrase "sole cause" was not necessarily error, yet the instruction should have contained facts "equivalent to a finding that (Piper's) negligence was the sole cause of the collision." Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373. The use of the phrase "the direct and proximate cause" (instead of "sole cause") without the submission of facts equivalent to sole-cause negligence rendered the instruction misleading and confusing. It was not so plain that no doubt could arise as to its meaning, and, since open to two interpretations, one of which was at variance with the law, was erroneous and ground for new trial. Morris v. Morris, 28 Mo. 114; Schipper v. Brashear Truck Co., 132 S.W.2d 993; Graham v. St. Louis-Red Bud-Chester Bus & Service Co., 147 S.W.2d 205, 207-209 (1-5), where an instruction was held confusing and properly refused because using the phrase "sole proximate cause" instead of "sole cause."

OPINION

Hays, J.

This was an action for personal injuries brought by the present respondent against the Highland Dairy Farms Co., a corporation, and its employee James A. Flavin. A trial in the circuit court of the City of St. Louis resulted in a verdict for the defendants and the plaintiff filed her motion for a new trial, which was sustained on the sole ground that the court had erroneously given instruction number 6, hereinafter set out, at the request of the defendants. From the sustaining of this motion the defendants have appealed.

The instruction complained of by the plaintiff and held erroneous by the trial court purported to embody the doctrine of sole cause. Since this instruction was requested by and given at the instance of the defendants we must look to their evidence in order to determine whether there was sufficient proof to warrant the giving of the instruction. [Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853, l.c. 857; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13.] We, therefore, state the facts from the point of view of the defendants' evidence.

Plaintiff was the proprietor of a retail liquor establishment and Eugene J. Piper was her manager in charge of such place of business. Both of them resided in the same building in which the tavern was located. After closing the tavern on Friday night, May 31, 1940, plaintiff and Piper entertained a few friends and about 3 to 3:30 on Saturday morning they decided to drive to St. Louis to obtain some chop suey for the guests. They made the trip in an automobile belonging to Piper. After obtaining the food they started back to the tavern driving south on Sarah Street, straddling the west rail of the southbound streetcar track. When they arrived at the intersection of Sarah and Gratiot Streets they collided with a truck belonging to the defendant Highland Dairy Farms Company and driven by the defendant James A. Flavin. This truck had come west on Gratiot Street and was, at the time of the collision, proceeding across the intersection of Sarah Street. The truck was loaded with 7500 pounds of dairy products and was being driven by Flavin in the scope of his employment as agent and servant of his co-defendant. Defendants' evidence tended to show that the front of Piper's car and the right-hand side of the truck were damaged.

Gratiot Street is 36 feet 2 inches wide from curb to curb and Sarah Street is also approximately 36 feet wide from curb to curb. As Flavin approached the east-building line on Sarah Street he looked first to the north and then to the south. From this point he could see north along Sarah Street for a distance of some 90 feet. He saw no vehicle approaching from either direction and he then started across Sarah Street moving at a speed of about 15 miles an hour. [Plaintiff's evidence tended to show that the truck was being driven about 60 miles per hour.] He looked north again as he came to the streetcar tracks in the center of Sarah Street and saw an automobile approaching him very fast from that direction. He attempted to swing to the left and set his brakes, when he was struck by Piper's car. The evidence tended to show that the brakes of the truck were in good condition and the vehicle could be stopped within 20 feet from an initial speed of 15 miles per hour.

The case was submitted to the jury upon alleged primary negligence of the truck driver in failing to keep a careful lookout and thereby discover the automobile in which plaintiff was riding and upon the issue of alleged humanitarian negligence of the driver in failing to avoid the accident by stopping or swerving to the left after he had discovered plaintiff in a position of imminent peril. The court, at the instance of the plaintiff, charged the jury that the negligence, if any, of Piper could not be imputed to her.

Instruction number 6, given by the court at the instance of the defendants and complained of herein by the plaintiff, is as follows:

"The court instructs the jury that if you find that Piper, the...