Kuzuf v. Gebhardt, 61672

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWELLIVER; SEILER; BARDGETT; HIGGINS, J., dissents in separate dissenting opinion filed and concurs in separate dissenting opinion of BARDGETT; MORGAN, J., dissents and concurs in separate dissenting opinion of HIGGINS; SEILER; BARDGETT; HIGGINS
Citation602 S.W.2d 446
PartiesSteven KUZUF, Respondent, v. Helen GEBHARDT, Appellant.
Docket NumberNo. 61672,61672
Decision Date13 May 1980

Daniel G. Tobben, St. Louis, for appellant.

Richard L. Hughes and Thomas Gregory, St. Louis, for respondent.


Respondent sued for damages resulting from injuries sustained when struck by appellant's automobile. The jury returned a verdict for appellant. Respondent's motion for new trial was sustained on the ground that appellant's verdict directing instruction, submitting the issue of contributory negligence, was prejudicially erroneous. Appellant sought review of the order granting a new trial, and the appeal was transferred after opinion from the court of appeals. We decide the case as though on original appeal, Mo. Const. art. V, § 10, and utilize substantial portions of the opinion of the court of appeals without quotation marks.

The judgment is reversed and the cause remanded with directions to the trial court to enter judgment on the jury verdict for appellant.

On the afternoon of June 27, 1974, respondent, an "Electrical Helper II" employed by the City of St. Louis, was working on rewiring the electric traffic signals at the intersection of Lindell and DeBaliviere, adjacent to Forest Park. The accident occurred while respondent was checking whether the traffic signals on the island south of Lindell Boulevard were functioning.

Although there was conflicting evidence, respondent testified at trial that as he stepped off the island's curb to inspect the traffic lights, he looked to see whether there were any cars approaching eastbound on Lindell Boulevard. The closest car was approximately one-half to one block away. In respondent's words, "there was a car quite a way west of me, but it was too far for me to really pay that much attention to." Cognizant that before the car reached him it would have to stop at a portable stop sign erected at the southwest corner of Lindell and DeBaliviere, respondent left the curb, walked three or four feet out into Lindell Boulevard, turned around to face the curb and watched the stoplight for thirty to forty seconds. Without again checking eastbound traffic on Lindell, he walked back to the curb. As he placed his left foot on the curb, he was struck on his right knee and thigh by appellant's auto.

Officer Wheeler of the City of St. Louis Police Department arrived at the scene a few moments after the accident. At trial Wheeler testified that respondent stated that he had stepped back off the curb to observe the traffic lights and had been struck by appellant's auto. In respondent's signed accident report filed with the City of St. Louis the day after the accident, respondent gave a version of the accident consistent with Officer Wheeler's testimony. In the section titled "CIRCUMSTANCES OF ACCIDENT" respondent wrote: "I stepped off of curb to check traffic light. I took two steps backwards from curb and was struck on the right thigh by her right head lamp frame."

Appellant was too ill to attend trial. In her deposition, read at trial, she admitted never having seen respondent. In fact, she stated she first became aware that she had been in an accident when respondent's fellow employees called out and she stopped. In her accident scene statement to Officer Wheeler she stated respondent had backed off the curb into the path of her automobile.

Appellant's verdict directing instruction, Instruction No. 5, reads as follows:

Your verdict must be for the Defendant if you believe:

First, Plaintiff either:

failed to keep a careful lookout or

Left a place of safety and walked into the immediate path of Defendant's vehicle; and

Second, Plaintiff's conduct in one or more of the respects submitted in Paragraph First was negligent; and

Third, such negligence of Plaintiff directly caused or directly contributed to cause, any damage Plaintiff may have sustained.

Fourth, the term "negligent" or "negligence" as used in this Instruction means the failure to use that degree of care that an ordinarly (sic) careful and prudent person would use under the same or similar circumstances.

(MAI 32.01 and 11.02)

The jury returned its verdict in appellant's favor on March 6, 1978.

On March 20, 1978, respondent filed a motion for new trial, assigning six errors in Instruction No. 5: (1) the disjunctive submission in paragraph first was an improper deviation from MAI because MAI 17.01 to 17.13 do not contain a "left a place of safety" submission as a specification of contributory negligence and because "left a place of safety" is included within failure to keep a careful lookout; (2) submission of both failure to keep a careful lookout and leaving a place of safety constituted a double submission of the same issue; (3) the definition of negligence contained in paragraph fourth was not the proper standard by which to judge a streetworker's conduct; (4) there was no evidence that even if respondent had kept a careful lookout he could have avoided the accident; (5) there was no evidence respondent failed to keep a careful lookout; and (6) there was no evidence respondent moved into the street and into the path of the appellant's automobile. On May 26, 1978, the trial court sustained respondent's motion for new trial "on the grounds set out in paragraph two thereof, to-wit: because of the Court's erroneous submission of Instruction No. 5."

On May 26, 1978, appellant filed notice of appeal from the trial court's order granting respondent's motion for new trial. On August 14, 1979, the Court of Appeals, Eastern District, filed an opinion which would affirm the judgment of the trial court, and on September 17, 1979, denied appellant's motion for rehearing or transfer to this Court. On October 10, 1979, on appellant's application, we ordered the case transferred to this Court.

When a motion for new trial is granted because of prejudicial error in the instructions, the question presented on appeal is a question of law. "Whether the instruction was erroneous and, therefore, prejudicial was a question of law to be determined upon the record presented. No fact question was involved." Highfill v. Brown, 340 S.W.2d 656, 664 (Mo. banc 1960). Accord, Wims v. Bi-State Development Agency, 484 S.W.2d 323, 326 (Mo. banc 1972). When several grounds are assigned by the trial court for its action in granting the motion for new trial, the trial court's action must be upheld on appeal if any one of those grounds is valid. State ex rel. State Highway Commission v. Klipsch, 414 S.W.2d 783, 786 (Mo.1967); Davis v. Perkins, 512 S.W.2d 868, 870 (Mo.App.1974).

The trial court erred in granting a new trial on the first two grounds listed above. The questioned language is not an improper deviation from MAI but a modification of MAI 32.01(2) by the addition of a specification of negligence; not included in the various specifications of negligence set forth in Chapter 17, MAI. Rule 70.02(e) provides that "(w)here an MAI must be modified to fairly submit the issues in a particular case," modifications are permissible so long as they are "simple, brief, impartial, free from argument, and . . . (do not) require findings of detailed evidentiary facts."

In Anderson v. Sellers, 521 S.W.2d 33, 36 (Mo.App.1975), the court stated that "(t)here is no MAI form submitting the contributory negligence of a pedestrian who leaves a place of safety with actual or constructive knowledge of the approach of a moving vehicle and moves into the immediate path of the vehicle." The court cited several cases approving the submission of a "leaving a place of safety" instruction. The court in Anderson distinguished failure to keep a careful lookout from leaving a place of safety, calling the former a "negative omission" and the latter an "affirmative act." Id. at 37. Leaving a place of safety is logically distinguishable from failure to keep a careful lookout and presents a separate issue for the jury's consideration. One may act negligently by leaving a place of safety and entering a dangerous position when it was unsafe to do so though he kept a careful lookout and in fact saw the danger; conversely, one's negligent failure to keep a careful lookout may expose him to injury though he did not move from a position of relative safety into a position of danger. Although the propriety of the disjunctive form of the instruction was not in issue, similar submissions were made and approved in Young v. Grotsky, 459 S.W.2d 306, 309 (Mo.1970) and Morris v. Duker, 414 S.W.2d 77, 81 (Mo.1967). There was evidence to support the submission of the two separate acts of negligence. The instruction did not constitute a double submission of the same issue and submitting both acts of negligence in the disjunctive was not error.

Respondent's third ground in his motion for new trial was that the definition of negligence included in appellant's verdict directing instruction was not the proper standard by which to judge a streetworker's conduct. Appellant's verdict directing instruction submitted the issue of respondent's contributory negligence, defining "negligent" and "negligence" in accordance with MAI 11.02, to mean "the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances." In respondent's motion for new trial, he challenged the submission of this instruction on the ground that it incorrectly defined "negligent" or "negligence" because,

as a working man whose job required him to be in the street, plaintiff (a) was under no duty to keep a lookout, and (b) was not under the same duty as an ordinarily careful and prudent person (MAI 11.02), i. e., an ordinary pedestrian, but rather was obligated to use that degree that an ordinarily prudent city street employee would under the same or similar circumstances.

In support of his contention, respondent cites Gaylor v. Wienshienk, 221 Mo.App. 585...

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