Johnson v. Dawidoff

• Decision Date: 03 January 1944
• Docket Number: No. 38114.,38114.
• Parties: JOHN JOHNSON, Appellant, v. HARRY DAWIDOFF.
• Court: Missouri Supreme Court

177 S.W.2d 467

JOHN JOHNSON, Appellant, v. HARRY DAWIDOFF.

No. 38114.

Supreme Court of Missouri.

Division Two, January 3, 1944.

Rehearing Denied and Motion to Transfer to Banc Overruled, February 7, 1944.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.

AFFIRMED.

Russell J. Horsefield and Chelsea O. Inman for appellant.

(1) Instruction 10, the sole cause instruction, was not warranted by the evidence. Defendant's testimony that plaintiff suddenly appeared two feet to the right and two feet in advance of his automobile must be disregarded as contrary to physical facts and obviously unbelievable. Crews v. K.C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W. (2d) 54. Viewing the evidence in its light most favorable to the defendant, his automobile traveled at least twelve feet after he discovered plaintiff and before striking him; that the automobile could have been swerved three or four feet within a space of six or eight feet, but defendant did not undertake to do so until his automobile was two feet from the plaintiff. Plaintiff was struck by the bumper and right headlight, and these facts did not show a sole cause situation. Shields v. Keller, 153 S.W. (2d) 60. (2) Instruction 10 was erroneous in that it did not require the finding of sufficient facts to warrant the conclusion that plaintiff's negligence was the sole cause of his injury. It did not require a finding that plaintiff walked so closely in front of the parked automobile, or that the condition of light prevented the defendant from having discovered plaintiff sooner than he did, and did not require the jury to find that plaintiff walked into the path of defendant's automobile in such close proximity thereto that defendant could not, by the exercise of the highest degree of care, have discovered his peril and avoided the collision. Long v. Mild, 347 Mo. 1002, 149 S.W. (2d) 853; McGrath v. Meyers, 341 Mo. 412, 107 S.W. (2d) 792; Reiling v. Russell, 134 S.W. (2d) 33; Shields v. Keller, 153 S.W. (2d) 60; Stanich v. Western Union Telegraph Co., 153 S.W. (2d) 54; Hillis v. Rice, 151 S.W. (2d) 717; State ex rel. v. Shain, 137 S.W. (2d) 527. (3) Instruction 9 (the converse instruction on the humanitarian doctrine) was erroneous and prejudicial in that it confined plaintiff's zone of peril to the actual path of the automobile, whereas all the evidence showed that defendant, by keeping a sufficient lookout, could have discovered plaintiff's peril before and in time to have avoided the accident. Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Shumate v. Wells, 320 Mo. 536, 9 S.W. (2d) 632; Good Roads Co. v. Kansas City Ry. Co., 217 S.W. 858; Shields v. Keller, 153 S.W. (2d) 60; Gray v. Columbia Terminals Co., 52 S.W. (2d) 809, 331 Mo. 73; Schipper v. Brashear Truck Co., 132 S.W. (2d) 993; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W. (2d) 254. Plaintiff was entitled to the benefit of defendant's evidence on the issue of failure to swerve the automobile, because plaintiff's evidence and theory on this vital issue was not wholly inconsistent with defendant's testimony. Anderson v. Davis, 314 Mo. 515, 254 S.W. 439; Gann v. C.R.I. & P.R. Co., 319 Mo. 214, 6 S.W. (2d) 39; Gould v. C.R.I. & P.R. Co., 315 Mo. 713, 290 S.W. 135; Scoggins v. Miller, 80 S.W. (2d) 724. (4) Instruction 12 constituted prejudicial error, because it told the jury that the burden was upon the plaintiff to prove the charge of negligence "to the satisfaction of the jury." This required the plaintiff to prove his case beyond a reasonable doubt and exacted of him a higher degree of proof than is imposed by law in civil cases. Seago v. New York Central R. Co., 164 S.W. (2d) 336; Krause v. Spurgeon, 256 S.W. 1072; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W. (2d) 58.

Wilbur C. Schwartz and Morton K. Lange for respondent; Orville Richardson of counsel.

(1) Instruction 10, the sole cause instruction, was justified by the evidence. Reiling v. Russell, 345 Mo. 517, 134 S.W. (2d) 33; Shields v. Keller, 348 Mo. 326, 153 S.W. (2d) 60. (2) Defendant was not concluded by mere estimates of distance, estimates which were made in an emergency at night, where the whole incident occurred in less than one second. Haddow v. St. L. Pub. Serv. Co., 38 S.W. (2d) 284; Smith v. Producers Cold Storage Co., 128 S.W. (2d) 299. (3) In any event, this instruction also required the jury in the conjunctive to absolve defendant of all charges of negligence made in all other instructions before it could return a verdict for him. It was immaterial, therefore, whether the facts proven or submitted were sufficient to show a sole cause situation. Johnson v. Dawidoff, original opinion herein by Commissioner Bohling and numerous cases therein cited; Wells v. Raber, 166 S.W. (2d) 1073; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W. (2d) 366; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W. (2d) 562; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W. (2d) 527; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W. (2d) 742; Boyce v. Donnellan, 168 S.W. (2d) 120. (4) Instruction 9, a converse construction, did not erroneously confine plaintiff's zone of peril to the actual path of the car. It was a converse of the avoidability and not the discoverability of plaintiff's peril. Its very terms allowed the jury to consider the entire time and space that plaintiff consumed in walking between the parked cars into the path of defendant's automobile. The phrase "into the path of defendant's automobile" (especially where the word "immediately" is omitted) has been held proper in many cases where this very same argument about narrowing-the-danger zone has been made. Johnston v. Ramming, 340 Mo. 311, 100 S.W. (2d) 466; Smith v. Wells, 326 Mo. 525, 31 S.W. (2d) 1014; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W. (2d) 373; Kirkham v. Jenkins Music Stores, 340 Mo. 911, 104 S.W. (2d) 235; Oliver v. Morgan, 73 S.W. (2d) 993; Prater v. Rausch, 344 Mo. 888, 129 S.W. (2d) 910; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W. (2d) 562. (5) Defendant had a right to submit facts relied upon as his defense. On appeal, in considering the correctness of the instruction, the evidence should be viewed in that light most favorable to the successful defendant-respondent. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W. (2d) 742; Poague v. Kurn, 346 Mo. 153, 140 S.W. (2d) 13. (6) Plaintiff could not seek a recovery under the humanitarian doctrine by adopting a view of defendant's testimony which was contradictory to his own and opposed by his theory of the case. Since he could not adopt such testimony, he could not complain of defendant's converse instruction, which failed to give him the benefit of such testimony. He could not demand that defendant's instruction encompass a theory of fact repudiated by his own sworn testimony. Elkin v. St. L. Pub. Serv. Co., 235 Mo. 951, 74 S.W. (2d) 600; Pentecost v. Wabash Ry. Co., 334 Mo. 572, 66 S.W. (2d) 533; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W. (2d) 864; Dilallo v. Lynch, 340 Mo. 82, 101 S.W. (2d) 7. (7) Instruction 12, defendant's burden of proof instruction, did not impose any burden upon plaintiff of proving negligence beyond a reasonable doubt by using the phrase "to the satisfaction of the jury." This very same instruction has been approved by the Supreme Court in many cases. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W. (2d) 742; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W. (2d) 562; Flint v. Loew's St. Louis Realty & Amusement Corp., 344 Mo. 310, 126 S.W. (2d) 193; Grosvener v. N.Y. Central R. Co., 343 Mo. 611, 123 S.W. (2d) 173; Gardner v. Turk, 343 Mo. 899, 123 S.W. (2d) 158. (8) The criticism in Seago v. N.Y. Central R. Co., 164 S.W. (2d) 336, is mere dicta, and the Courts of Appeals have so construed it. Kelly v. Rieth, 168 S.W. (2d) 115; Ritzheimer v. Marshall, 168 S.W. (2d) 159; Boyce v. Donnellan, 168 S.W. (2d) 120.

WESTHUES, C.

Plaintiff sued the defendant to recover $15,000.00 as damages for personal injuries sustained when he was struck by the defendant's car. The trial resulted in a verdict and judgment for the defendant from which plaintiff appealed. The case was heard in this court at the September Term, 1942, and an opinion delivered. A rehearing was granted and the cause reargued at the September Term, 1943.

The trial court submitted the case to a jury on primary negligence and also under the humanitarian doctrine. The parties rebriefed the case on rehearing. The alleged errors complained of pertain to defendant's instructions 9, 10 and 12. Before considering the assignments of error it will be necessary to state the evidence of both plaintiff and defendant for the reason that the instructions must be considered in the light of the evidence. About 9:30 P.M., December 11, 1939, plaintiff was walking west toward Twelfth street on the north side of Chouteau avenue in the city of St. Louis, Missouri. The weather was clear and dry. As he was thus walking west in the ten hundred block he heard a newspaper vender on the south side of the street and decided to cross over and purchase a paper. He started across, and while on the north side of the street was struck by the defendant's car which was being driven west. The dispute in the evidence was with reference to plaintiff's position in the street at the time of the accident and whether plaintiff was standing still or walking when struck. Plaintiff testified that he saw defendant's car approaching as he walked in front of a parked automobile and that he stopped when he reached a point about twelve feet from the sidewalk, at which time he noticed the defendant's car astride the north rail of the street car tracks about fifty feet to the east. Plaintiff stated that had the car continued in a straight line it would have passed him to the south. Plaintiff also testified that after he took notice of defendant's car at that point he looked west to see...