Lanasa v. Downey

• Decision Date: 18 February 1947
• Docket Number: No. 27075.,27075.
• Parties: LANASA v. DOWNEY.
• Court: Missouri Court of Appeals

201 S.W.2d 179

LANASA v. DOWNEY.

No. 27075.

St. Louis Court of Appeals. Missouri.

February 18, 1947.

Rehearing Denied March 21, 1947.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Jack Lanasa, a minor, by Marcella Lanasa, his parent and natural guardian, against Leo Lee Downey, for injuries suffered when struck by automobile. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

Robert A. Roessel, of St. Louis, for appellant.

Louis E. Miller, Miller & Landau and B. Sherman Landau, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff on the morning of January 26, 1945, when he was struck by defendant's automobile while the same was being operated southwardly on Broadway at or near its intersection with Wisconsin Avenue in the City of St. Louis.

Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $6,000. Judgment was entered in accordance with the verdict; and following an unavailing motion for a new trial, defendant gave timely notice of appeal, and by proper steps has caused the action to be transferred to this court for our review.

The negligence pleaded and relied upon by plaintiff was defendant's alleged failure to keep a careful watch ahead and laterally of the path of travel of his automobile, and to sound a warning signal of his intention to swerve his automobile to the left for the purpose of overtaking and passing an automobile which was preceding him.

The answer was a general denial, coupled with a plea that plaintiff's injury was the direct result of his own carelessness and negligence directly contributing thereto, in that he saw or could have seen defendant's approaching automobile in time to have avoided colliding with it; ran directly into the path of defendant's approaching automobile; and crossed the street at a place other than the regular pedestrian crossing.

Plaintiff was eleven years of age at the time of the accident, which occurred shortly after seven o'clock in the morning, as he was attempting to cross Broadway from east to west. It was dark at the time, with daylight saving in effect, and automobiles on the streets had their headlights burning.

According to plaintiff's version of the facts, he looked for traffic before stepping off the curb, and observed the lights of an automobile approaching from the north about a block away. He started across Broadway, and proceeded to the second or innermost rail of the northbound street car track, where he stopped and waited for the approaching automobile to pass. At the time he stopped, the automobile was "some four doors or more" up the street, and was straddling the outermost rail of the southbound street car track. While he was "standing still" at the point indicated, the automobile passed by him, and at the moment it did so, defendant's automobile, which was following immediately behind it, and which plaintiff had not seen, was suddenly pulled around to the left upon the track on which plaintiff was standing, where it ran into plaintiff, knocking him to the street, and inflicting painful and serious injuries. Plaintiff testified that there was no warning of defendant's intention to swerve to the left, and that all he saw of defendant's automobile was a "quick flash" of lights as it headed towards him.

Defendant's evidence, on the other hand, was that as defendant approached the point of the accident, he was driving in the space to the west of the street car tracks; that about half a block north of the intersection with Wisconsin Avenue, he pulled over upon the outermost rail of the southbound street car track in order to pass the automobile ahead of him; that as he did so, he saw plaintiff running across the street about two feet in front of him; and that he immediately applied his brakes, but was unable to avoid striking plaintiff with the left front end of his automobile.

For his first point defendant assigns error to the giving of plaintiff's principal instruction No. 1, which submitted the case upon the hypothesis that "defendant failed to exercise the highest degree of care to keep a careful watch ahead and laterally of the path of travel of his said automobile and failed to sound a warning signal of his intent to swerve his said automobile to the left".

The instruction concluded with the direction that if the jury should find that such failure on the part of defendant constituted negligence, and that such negligence directly and proximately caused defendant's automobile to strike and injure plaintiff, then the verdict should be in favor of plaintiff, and against defendant.

The objection to the instruction is based upon the inclusion of the failure to sound a warning signal as an element of defendant's liability. There is no suggestion of the lack of supporting evidence for such hypothesis, since defendant himself admitted that he did not sound his horn. On the contrary, the whole point is one of lack of causal connection between the failure to sound the horn and plaintiff's subsequent injury, it being defendant's contention that with plaintiff aware of the approach of at least the first automobile, the sounding of a horn would have given him no more information than he already possessed, and that the submission of failure to warn as an element of actionable negligence was consequently an invitation to the jury to enter the field of speculation, surmise, and conjecture.

There is undoubtedly room for serious argument whether defendant's failure to have sounded his horn was a proximate cause of the accident. There could have been no signal by the horn that would have specially indicated defendant's intention to swerve to his left in order to overtake and pass the automobile ahead of him; and even if the horn had been sounded, and plaintiff's attention called to the approach of defendant's automobile, it might still be questioned whether plaintiff could have done anything to save himself in the fleeting moment at his disposal.

As it happens, however, there is no necessity for determining whether defendant's failure to have sounded a warning signal could have constituted a proximate cause of the accident, since even if the answer should be in the negative, the inclusion of such element in plaintiff's instruction would nevertheless have fallen short of rendering the instruction prejudicially erroneous.

The rule is firmly fixed in the decisions that where the grounds of negligence are stated conjunctively in an instruction, and any one of such grounds is sufficient to authorize the verdict, the instruction is not to be held prejudicially erroneous because some one of the other grounds lacks supporting evidence to warrant its inclusion. When the jury, in such a situation, purports to find for the plaintiff upon all the grounds hypothesized, it necessarily finds for him upon the ground which has support in the evidence; and its purported finding upon the unsupported ground is therefore harmless to the defendant. The soundness of the rule has been brought into question (Adams v. Thompson, Mo.App., 178 S.W.2d 779), but it has been repeatedly announced and followed, and is a controlling principle wherever it applies. Corley v. Kroger Grocery & Baking Co., Mo.Sup., 193 S.W.2d 897; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780; Potterfield v. Terminal R. Ass'n, 319 Mo. 619, 5 S.W. 2d 447; Halley v. Federal Truck Co., Mo. App., 274 S.W. 507; Crupe v. Spicuzza, Mo.App., 86 S.W.2d 347; Daggett v. American Car & Foundry Co., Mo.App., 284 S.W. 855.

So far as concerns plaintiff's instruction No. 1, there is no complaint about the inclusion of the question of whether defendant failed to keep a careful watch ahead and laterally. There is no suggestion of the lack of substantial evidence to warrant the submission of such ground of liability, or of the absence of causal connection between such negligence and plaintiff's resulting injury. Instead, the only question is with regard to the inclusion of the element of failure to warn, which defendant contends could not have constituted a proximate cause of the accident. But as the instruction was drawn, the two grounds of negligence were stated conjunctively, so that even if the inclusion of the element of failure to warn should be regarded as technically erroneous, its joinder with the issue properly submitted would have prevented any prejudice to the rights of defendant.

Defendant next complains of plaintiff's instruction No. 4, which told the jury that if they found and believed from the greater weight of the credible evidence that the facts were as submitted in instruction No. 1, then plaintiff had met and carried the burden of proof required of him under the law and under the instructions in the case.

The objection leveled at the instruction is that it is confusing and misleading in that it places an undue and unfair emphasis on instruction No. 1, and for all practical purposes directs a verdict in plaintiff's favor.

By defendant's instruction No. 3, the jury were told that the question for their determination was whether defendant was negligent as charged; that in determining this question they were to be guided solely by the evidence; and that for plaintiff to recover, it developed upon him to prove by the preponderance or greater weight of the evidence that defendant was actually guilty of negligence which was both charged and submitted by the court, and that such negligence, if any, directly caused plaintiff's injury.

It is thus to be observed that plaintiff's instruction No. 4 was in effect the complement of defendant's instruction No. 3. The latter instruction told the jury, as we have already pointed out, that for plaintiff to...