Knox v. Weathers, 43033

• Decision Date: 11 May 1953
• Docket Number: No. 2,No. 43033,43033,2
• Citation: 363 Mo. 1167,257 S.W.2d 912
• Parties: KNOX v. WEATHERS
• Court: Missouri Supreme Court

Page 912

257 S.W.2d 912

363 Mo. 1167

KNOX v. WEATHERS.

No. 43033.

Supreme Court of Missouri, Division No. 2.

May 11, 1953.

Orville Winchell, Lebanon (Orville Richardson, St. Louis, of counsel), for appellant.

J. W. Grossenheider, Lebanon, for respondent.

BARRETT, Commissioner.

In this action for damages for personal injuries, by a guest in an automobile against her host, a jury has returned a verdict for the defendant and the plaintiff appeals. The sole question upon the appeal is whether the trial court so prejudically erred in instructing the jury that the plaintiff is entitled to a new trial.

On June 8, 1951, the appellant, Esther Knox, was the guest of her friend, Mernie Weathers, on a trip to Fort Leonard Wood. On the return trip to Lebanon, on U. S. Highway 66, the respondent, Sergeant Delbert Weathers, was driving his 1950 Chevrolet automobile. Mis wife, Mernie, sat in the front seat next to him and Esther Knox sat to the right of Mrs. Weathers, holding the Weathers' baby in her lap. As they left Fort Leonard Wood there was a high wind and a severe rainstorm and traffic was heavy. By 6:20 the storm had subsided but it was raining and visibility was poor. Approximately five miles west of Waynesville, near Buckhorn, they were traveling in a line of traffic following a large Coca-Cola truck, driven by Harry Nickerson. There were three passenger cars ahead of the Coca-Cola truck. The cars and the truck came over a hill and were proceeding along a level stretch of road that made a gradual turn to the left. Sergeant Weathers had followed the Coca-Cola truck for a mile and a half at speeds varying from fifteen to thirty miles an hour, maintaining a distance between his car and the truck of one and a half to two car lengths. As the line of traffic proceeded across the level stretch of concrete highway a panel truck pulled onto the highway ahead of the automobiles and after traveling a distance of about five hundred feet stopped before turning left across the highway. The passenger cars stopped on the pavement back of the panel truck and the Coca-Cola truck stopped. Sergeant Weathers immediately applied the brakes on his Chevrolet and swerved to the right, but the left front part of his automobile struck the right rear corner of the truck and Mrs. Knox was thrown forward into the windshield.

To recover damages for her resulting injuries, Mrs. Knox instituted this action against Sergeant Weathers. Her right to recover and his liability were hypothesized upon a finding 'that the motor vehicle immediately ahead of the defendant's car came to a stop on said highway after having given a signal of its intention to stop * * * and that he (the defendant) negligently and carelessly failed to keep a look-out ahead for persons and property on said highway and by reason of the carelessness and negligence of the defendant, if any, his car was caused to collide with the vehicle immediately ahead of the defendant's car and as a direct and proximate result thereof the plaintiff was injured thereby; or, if you find and believe from the evidence the defendant was driving his car and that he negligently and carelessly failed to keep a proper distance behind the car ahead of him, * * *.' It may be interpolated here that there was evidence in support of the plaintiff's hypothesized acts of negligence, but, as we have said, the jury returned a verdict in favor of the defendant and there was evidence to support his version of the occurrence.

Among other instructions, the court instructed the jury upon the subject of contributory negligence. The instruction is as follows:

'The court instructs the jury that Mrs. Knox was required to exercise that degree of care that an ordinary prudent person under the same or similar circumstances would exercise for her own safety and could not intrust herself absolutely to the driver of the vehicle in which she was riding. The court further instructs the jury that if you find and believe from the evidence that the defendant Sgt. Weathers was negligent as described in the other instructions, if you so find, and if you further find that the plaintiff Mrs. Knox at the time and place of the collision mentioned in the evidence had an adequate opportunity to influence the situation for safety by requesting defendant to keep a greater distance between his automobile and the vehicle ahead of him and by requesting defendant to keep a close lookout for property and persons on the highway; and if you find that Mrs. Knox failed to so act to influence the situation for safety and that her failure to so act was negligence which contributed to her injuries mentioned in the evidence, if you so find, you must find the issues for the defendant and against the plaintiff Esther Knox on Court I of plaintiff's petition.'

There were no other instructions upon this subject, and so there is no claim of conflict in the instructions. It is claimed however, that the instruction 'has several serious faults,' is erroneous 'in detail and in general' and was prejudical.

It is pointed out that the instruction does not employ the word 'directly' preceding the word 'contributed,' or the phrase 'to cause' following the word, in the clause 'and that her failure to so act was negligence which contributed to her injuries.' The function of the word 'directly,' or of similar words, in an instruction on contributory negligence is to exclude remote negligence as a contributing factor and to require a finding of causal connection between the plaintiff's negligence and her injury. Roeslein v. Chicago & E. I. R. Co., Mo.Sup., 214 S.W.2d 13, 18. The appellant concedes that if the instruction meets that requirement it is not necessary to use the word 'directly,' provided the jury is given to understand that the negligence submitted 'contributed' to or proximately caused the plaintiff's injuries. White v. United Railways Co., 250 Mo. 476, 157 S.W. 593. Nevertheless the appellant urges, since the instruction did not use either the word 'directly' or the phrase 'to cause,' that the question of proximate cause was not 'clearly' submitted, an error of omission and misdirection. But the test is whether the facts specifically hypothesized 'from their nature, not only constituted negligence, but which, if found, also contributed to cause plaintiff's injury.' Roeslein v. Chicago & E. I. R. Co., supra ; Christman v. Reichholdt, Mo.App., 150 S.W.2d 527; Barr v. Missouri Pac. R. Co., Mo.Sup., 37 S.W.2d 927; Terrell v. McKnight, 360 Mo. 19, 26, 226 S.W.2d 714. Or, as was said in Carr v. City of St. Joseph, Mo.Sup., 225 S.W. 922, 923, 'If an instruction on contributory negligence requires the finding of negligent acts which, in the nature of things, necessarily contributed directly to cause the injury and necessarily formed a part of the efficient cause thereof, then the instruction cannot be held erroneous because it does not require the jury to draw the inference which the law itself draws therefrom.' If the instruction meets the test of so submitting the facts relied upon and they constitute negligence it is not prejudicially erroneous, and the appellant does not claim that the instruction is erroneous or improper in this respect as was the fact in Stumpf v. Panhandle Eastern Pipeline Co., 354 Mo. 208, 189 S.W.2d 223, 228. In that case 'the facts of the case do not compel the inference that the plaintiff's negligent failure to observe, hypothesized in the instructions, was a direct, producing or efficient cause of the casualty, and the question should have been left to the jury.'

As we have just pointed out, it is not claimed that the facts hypothesized in the instruction, if found, do not constitute negligence directly contributing to cause the plaintiff's injuries, but it is insisted that the instruction is not supported or warranted by the evidence. In her brief the appellant admits 'that the plaintiff testified that the defendant for some little period before the collision had been driving, as she said, 'too closely' to the automobile truck ahead of him,' and, in addition, she did not say or do anything about it. To sustain her argument that the instruction did not have evidentiary support the appellant says, 'On the other hand, there was no evidence that the defendant failed to keep a lookout ahead of him until just before the impact of the collision. It was then and for the first time that, according to the plaintiff, he took his eyes from the road and reached across his wife to grasp the baby's foot. The impact followed almost immediately thereafter.' Therefore, it is urged that the plaintiff had no opportunity to warn and there was no evidence that she did or that a warning at that late date would have avoided the casualty. However, the plaintiff did not protest or warn and, as she admits, she had observed for some time that he had been driving 'too closely' to the vehicle ahead of him. It is not claimed that there was no evidence to support this specification of contributory negligence. The specifications were conjunctively submitted, Corley v. Kroger Grocery & Baking Co., 355 Mo. 4, 193 S.W.2d 897, 900, and the rule applicable to plaintiff's instructions should also apply to a defendant's instruction. Lindquist v. Kansas City Public Service Co., 350 Mo. 905, 913-914, 169 S.W.2d 366, 370-371. No one can say whether her warning him as to a lookout immediately prior to the collision would have avoided the casualty because, as she admits, we do not have the circumstance of its having been given. As to her duty, 'When dangers, which are either reasonably manifest or known to an invited guest, confront the driver of a vehicle, and the guest has an adequate and proper opportunity to conduct or influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury, this is negligence which will bar recovery.' Kaley v. Huntley, 333 Mo. 771, 778, 63 S.W.2d 24. Whether a...