Hower v. Roberts

• Decision Date: 26 February 1946
• Docket Number: 13145.,No. 13144,13144
• Citation: 153 F.2d 726
• Parties: HOWER v. ROBERTS (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

153 F.2d 726 (1946)

HOWER v. ROBERTS (two cases).

Nos. 13144, 13145.

Circuit Court of Appeals, Eighth Circuit.

February 26, 1946.

Walter A. Raymond, of Kansas City, Mo. (Al Mendelson, of Kansas City, Mo., on the brief), for appellants.

Paul Sprinkle, of Kansas City, Mo. (William F. Knowles and Sprinkle & Knowles, all of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

Charles Hower and Katherine J. Hower, his wife, were injured in a single automobile collision and each brought a separate action for damages against Le Roy K. Roberts in the Circuit Court of Jackson County, Missouri, charging that the accident was caused by defendant's negligence. The cases were removed to the Federal court on the ground of diversity of citizenship and jurisdictional amount involved. As the actions arose out of the same collision they were consolidated for trial. Judgment in each case was for defendant and each of the plaintiffs appeals. The appeal is before us on a single record and the cases are argued together.

Turning our attention first to case No. 13,145, we observe at the outset that the interest of the wife, who was the plaintiff, was not in all respects identical with that of the husband who was the plaintiff in No. 13,144, and it would perhaps have been better had the plaintiff in each case been represented by separate counsel so that each plaintiff would have been assured against prejudice from conflict of interest.

The sole question presented involves the propriety of the District Court's refusal of a requested instruction for plaintiff Katherine J. Hower on the issue of concurrent negligence, and in determining this question we view the evidence in the light favorable to her. See Wilson v. Thompson, 345 Mo. 319, 133 S.W.2d 331; Klas v. Yellow Cab Co., 7 Cir., 106 F.2d 935.

On the evening of June 18, 1944, plaintiffs were returning to Kansas City after having spent the day with relatives in Savannah, Missouri. They were traveling south in a Ford truck on Highway 71. Plaintiff Charles Hower was driving and his wife was seated to his right in the cab of the truck. As Highway 71 approaches its intersection with Highway 69 one branch turns to the east and another to the west into Highway 69 which runs east and west, forming a Y with the stem to the north and the branches to the southeast and southwest. On Highway 69 and at a point about 15 feet west of Highway 71 was a large stop sign directed to motorists traveling east on Highway 69. Under Missouri law the stop sign did not oblige a motorist to stop at the intersection under all circumstances and defendant was required to stop only if traffic was such that in the exercise of prudent judgment he should do so. The sign was merely a signal of danger, or, in other words, a warning sign. Highway 71 is downgrade to the south toward Highway 69 until almost to the intersection and then levels off.

Defendant approached the intersection in a Chevrolet sedan from the west on Highway 69. The brakes and steering gear of the Chevrolet were in good working order. The collision occurred between 8 and 9 o'clock on a dry, clear evening and there was no obstruction to the vision of either driver.

Plaintiffs approached the intersection behind other vehicles and, although there was conflict as to the speed of both the car and the truck, plaintiffs' testimony indicated that they were traveling about 35 miles per hour. A car immediately ahead of plaintiffs signalled for a right turn on the branch leading to Highway 69 and Mr. Hower slowed his truck to about 25 miles per hour and continued south on Highway 71. He looked west and observed defendant's automobile 140 to 160 feet west of Highway 71. Because of other traffic he did not again look to the right until it was too late to avoid the collision which occurred in the southwest corner of the intersection. The automobile struck the truck on the right side over the cab door. Neither driver sounded a horn or gave any other warning of his approach.

Mrs. Hower testified that she looked to the west when the truck was about 80 feet north of Highway 69 and observed defendant's car which in her judgment was about twice as far from the intersection as the truck. She testified that she supposed defendant would stop for the stop sign and that she gave no warning to her husband of the approach of defendant's car. She looked west again when the truck was entering the intersection and defendant's car was passing the stop sign. She testified that after the accident and while the parties were being removed in an ambulance, defendant said, "I ran through that Stop sign."

Defendant testified that he observed the truck just before the beginning of the Y but that he believed the truck would turn down the left hand side of the curve of the Y and did not again look north until the truck was within 10 feet of him. He admitted that the truck entered the intersection first and stated that although he did not stop for the stop sign, he did stop momentarily before he reached the sign and at a point 50 feet west of Highway 71 in order to observe a highway marker, and that he did not deem it necessary to stop the second time.

A preliminary question arises concerning whether the oral request for a concurrent negligence instruction was sufficient and whether the refusal of the request is preserved for review. The charge given in effect authorized recovery by plaintiffs if their injuries resulted from the sole negligence of defendant and authorized a verdict for defendant if the injuries resulted from the sole negligence of plaintiff Charles Hower, or if the accident occurred notwithstanding absence of negligence on the part of defendant. After the charge was given, plaintiffs' attorney stated that he had no objection thereto. Defendant's attorney requested a charge on contributory negligence and the request was denied. Thereafter the following colloquy took place between plaintiffs' counsel and the court:

"Mr. Mendelson: I want to make one request, to ask the Court to instruct the jury that the plaintiff, Mrs. Hower, could recover regardless of whether or not her husband, the plaintiff Mr. Hower, was negligent if the jury finds that his negligence concurred with the negligence of the defendant.

"The Court: Now, that would be proper if I were instructing on contributory negligence. Then I would say there was no imputed negligence to her. But since I have eliminated both, then I couldn't give that instruction because that would be inconsistent to give that. So I will refuse that instruction too."

No further request or objection was made by plaintiffs.

While it would have been the better practice to have submitted a written instruction on concurrent negligence at the close of the evidence, Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A. following Section 723c, does not specifically require such procedure. Swiderski v. Moodenbaugh, 9 Cir., 143 F.2d 212; Peterson v. Sheridan, 8 Cir., 115 F.2d 121.

A more serious question is presented by the failure of counsel to object to the refusal of the instruction or to explain more fully his contention in regard to the instruction. It is clear, however, that the trial judge fully understood the request and refused it on the theory that such an instruction would be inconsistent with his submission of the case on the single issue of sole negligence of one driver or the other and his refusal of an instruction on contributory negligence.

The purpose of Rule 51 is to inform the trial judge of possible errors and give him an opportunity to correct them, and it is sufficient if the point urged on appeal was called to the attention of the trial court in such manner as clearly to advise it as to the question of law involved. Williams v. Powers, 6 Cir., 135 F.2d 153. In Alcaro v. Jean Jordeau, 3 Cir., 138 F.2d 767, at page 771, the court said:

"Rule 51 is designed to preclude counsel from assigning for error on appeal matter at trial which he did not fairly and timely call to the attention of the trial court. However, there is no good reason for applying the rule so indiscriminately as to prevent counsel from pointing out on appeal matter which he did endeavor to identify to the trial court and which he had reason to believe the court fully apprehended when granting an exception."

In King v. Mutual Benefit Health & Accident Association, 8 Cir., 120 F.2d 296, relied on...