Karnes v. Ace Cab Co.
| Decision Date | 21 February 1956 |
| Docket Number | No. 29240,29240 |
| Citation | 287 S.W.2d 378 |
| Parties | Larry KARNES, a minor, by his next friend, Lorraine Karnes (his mother and natural guardian) (Plaintiff), Respondent, v. ACE CAB COMPANY, a corporation, (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Morris A. Shenker, William P. Byrne, St. Louis, for appellant.
Robert D. Bransford, St. Louis, for respondent.
HOUSER, Commissioner.
This is an action by 13-year old Larry Karnes against Ace Cab Company for damages for personal injuries allegedly sustained by plaintiff when his bicycle collided with one of defendant's taxicabs. Defendant appeals from a judgment rendered upon a jury verdict for plaintiff for $3,500, contending that instructions given the jury (1) improperly imposed the highest degree of care whereas only ordinary care was required of defendant under the circumstances, and (2) improperly injected a false issue, that of contributory negligence, thus misleading and confusing the jury; and that the verdict is excessive.
The petition, inter alia, charged that while defendant's taxicab was stopped on the east side of a public street in the City of St. Louis, headed north, its driver negligently opened the left front door of the taxicab into and against the path of plaintiff's bicycle at a time when plaintiff was in such close proximity that the driver of the taxicab knew or by the exercise of the highest degree of care should have known that there was danger of a collision, etc. Defendant's answer consisted of a general denial, coupled with a plea that 'its said taxicab was parked and its driver was not in or near said taxicab and that whatever injuries, if any, plaintiff sustained were caused solely and directly as a result of his negligence and carelessness in falling or jumping from his said bicycle and onto the aforesaid street.'
The collision occurred in front of Larry Davis' Food Shop at 1402 Tower Grove Avenue, to which address the taxicab had been driven to pick up a fare. The taxicab was stopped or parked on the east side of the street, headed north. Plaintiff, riding his bicycle and heading north, approached the taxicab from the rear. There were no cars parked to the south of the taxicab. The bicycle was proceeding about 2-3 feet west of the east curb. At a point 2 yards south of the rear of the taxicab plaintiff turned his bicycle to the left to go around it, and while passing the taxicab some 6-12 inches to the west of its left side the taxicab driver, in the process of getting out of the taxicab, opened its left front door from the inside, directly in plaintiff's path. The handle bars of the bicycle hit the door and plaintiff fell to the pavement. The taxicab driver got out of the taxicab after the collision. Plaintiff testified that prior to this occurrence, as he was crossing Hunt Avenue, he saw the taxicab stop 'about a block up the street,' so we must assume that at the time of the collision the taxicab had been stopped or parked for a very brief period of time. Apparently the taxicab was parallel to and parked in a proper position adjacent to the curb. There is no intimation that the taxicab was not properly parked. There was no testimony on the question whether the engine had been turned off or was still running at the time of the collision.
Having in mind Section 304.010 RSMo 1949, V.A.M.S. 1 the first question for determination is whether the driver's act of opening the left front door to alight from a motor vehicle, after properly parking it on a city street, is an act of operating or driving the vehicle.
Appellant contends that the statutory duty to exercise the highest degree of care extends only to the driving of, and not to the act of alighting from, a motor vehicle. This begs the question. No exceptions are provided for in Sec. 304.010, supra, and nothing in the section indicates 'that one in driving a motor vehicle, should be held to the highest degree of care in doing or failing to do some things, and only ordinary care in doing or in failing to do other things.' Robinson v. Ross, Mo.App., 47 S.W.2d 122, loc. cit. 126. The question remains whether alighting from a motor vehicle is part and parcel of the operation or driving of the vehicle.
Appellant contends that the operation of an automobile signifies a personal act in working its mechanism; that the taxicab was not being driven or operated but was parked; that an automobile is not being operated or driven when it remains stationary and while no person is making an attempt to move it. The idea that an automobile must be in motion in order to be 'operated' within the meaning of Sec. 304.010, supra, (then Sec. 19, p. 91, Laws of Missouri, 1921, First Extra Session) was rejected in Stewart v. Jeffries, 224 Mo.App. 1050, 34 S.W.2d 560, loc. cit. 562 wherein it was said:
'* * * and it would be too narrow a construction to attempt to say that while a motor vehicle was moving it was being operated, but the moment it stopped by reason of lack of gasoline, or by reason of defective spark plug, or a broken gas line, or from any other cause, it was not in operation, and that the person who had been driving and had gotten out from under the steering wheel, and was attempting to find the trouble was not its operator, and was not then engaged in operating it. * * *'
The same concept was reiterated in Taylor v. Silver King Oil & Gas Co., Mo.App., 203 S.W.2d 147, loc. cit. 154, as follows:
In the Taylor case the vehicle had been stopped on the highway, its hood was up and its driver was working on the mechanism of the car at the time of the collision, according to the testimony of the prevailing party plaintiff. While the facts of the Stewart and Taylor cases, supra, differ from the facts in the instant case we see no logical distinction in the legal principles applicable. See also Maher v. Concannon, 56 R.I. 395, 185 A. 907; Cook v. Crowell, 273 Mass. 356, 173 N.E. 587; Stroud v. Water Com'rs of City of Hartford, 90 Conn. 412, 97 A. 336; Scheppmann v. Swennes, 172 Minn. 493, 215 N.W. 861; Hanser v. Youngs, 212 Mich. 508, 180 N.W. 409. If 'operation' includes activity of the driver after leaving his stopped vehicle, a fortiori it includes his activity in the course of leaving (while alighting from) such vehicle. We construe the 'operating' or 'driving' of a motor vehicle within the meaning of Sec. 304.010, supra, as encompassing all acts necessary to be performed in the movement of a motor vehicle from one place to another or fairly incidental to the ordinary course of its operation, including not only the act of stopping en route for purposes reasonably associated with the transit but also all acts which, in point of time and circumstance, are reasonably connected with entering the vehicle at the point of departure and alighting therefrom at destination. Stewart v. Jeffries, supra; Taylor v. Silver King Oil & Gas Co., supra; Southern Surety Co. v. Davidson, Tex.Civ.App., 280 S.W. 336; Lima Used Car Exchange v. Hemperly, 120 Ohio St. 400, 166 N.E. 364; Kennedy v. Consolidated Motor Lines, 312 Mass. 84, 43 N.E.2d 121. Accordingly, there was no error in giving Instructions Nos. 1, 2 and 4 imposing upon defendant the duty to exercise the highest degree of care and relating to the burden of proof in connection therewith.
Appellant's next point is that the court erred in giving Instructions Nos. 5 and 6 relating to contributory negligence, as requested by plaintiff. Instruction No. 5, a converse contributory negligence instruction, follows:
'The Court instructs the jury that you cannot find against the plaintiff on the ground that the plaintiff was contributorily negligent unless you find that the negligence, if any, on the part of the plaintiff entered into and formed a direct, producing and efficient contributory cause of the casualty mentioned in evidence and absent which such casualty would not have occurred.'
Instruction No. 6 laid the burden of proof of contributory negligence upon defendant, defined the burden, and directed the jury that they could not find against plaintiff on the issue of contributory negligence if defendant 'has failed to carry such burden.' Defendant did not offer and the court did not give any other instructions on the question of contributory negligence. Defendant contends that contributory negligence was not made an issue by the pleadings or evidence; that defendant contended that the accident was caused solely by plaintiff's falling or jumping from his bicycle and that defendant's taxicab driver had nothing to do with it because she was outside of the taxicab, standing on the sidewalk, when the incident occurred; that the injection of this issue was misleading and confusing and that the theory of the defense was thereby destroyed 'thus imposing on the defendant after trial a burden it had chosen not to assume during trial.'
We agree that defendant's plea that any injuries sustained by plaintiff were caused solely and directly as a result of plaintiff's own negligence was not an affirmative plea of contributory negligence, since it makes plaintiff's negligence the sole cause of the injury. Such a plea merely denies plaintiff's cause of action. Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743; Lankford v. Thompson, 354 Mo. 220, 189 S.W.2d 217; Lanio v. Kansas City Public Service Co., Mo.Sup., 162 S.W.2d 862; Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548. We further agree that contributory negligence was not made an issue by the manner in which the parties...
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... ... Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 130(9); Teters v. Kansas City Public Service Co., Mo., 300 S.W.2d 511, 516(9); Karnes v. Ace Cab Co., Mo.App., 287 S.W.2d 378, 380(2). In Taylor v. Silver King Oil & Gas Co., Mo.App., 203 S.W.2d 147, where (according to plaintiff's evidence) defendant's truck had stopped on the paved roadway without lights and the driver had been working under the raised hood, it was said [loc ... ...
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