Lewis v. Zagata

• Decision Date: 01 December 1942
• Docket Number: 38165
• Citation: 166 S.W.2d 541,350 Mo. 446
• Parties: Florence Isabelle Lewis, a minor by Harold O. Piening, Guardian of her person and estate, Appellant, v. John L. Zagata, Doing Business as Rolla Student Taxi Company
• Court: Missouri Supreme Court

166 S.W.2d 541

350 Mo. 446

Florence Isabelle Lewis, a minor by Harold O. Piening, Guardian of her person and estate, Appellant, v. John L. Zagata, Doing Business as Rolla Student Taxi Company

No. 38165

Supreme Court of Missouri

December 1, 1942

Appeal from Phelps Circuit Court; Hon. William E. Barton Judge.

Reversed and remanded.

Hay & Flanagan for appellant.

(1) Instructions should require the jury to find fact issues and not pass upon questions of law. Gillioz v. State Highway Comm., 153 S.W.2d 18, l. c. 26; Long v. Mild, 149 S.W.2d 853; Shields v. Keller, 153 S.W.2d 60. (2) Instructions should not assume as true facts in issue. Hengelsberg v. Cushing, 51 S.W.2d 187; Williams v. Excavating Co., 93 S.W.2d 123. (3) Instructions should not be given as abstract declarations of law, but should require the jury to find fact issues. Long v Mild, 149 S.W.2d 853; Shields v. Keller, 153 S.W.2d 60; Stanich v. Western Union, 153 S.W.2d 54; City Trust Co. v. Crockett, 274 S.W. 802, 309 Mo 683; City of Weston ex rel. v. Chastain, 234 S.W. 350. (4) Instructions are erroneous when they contain contradictory and misleading clauses. Gardner v. Met. St. Ry., 122 S.W. 1068, 223 Mo. 389, 18 Ann. Cas. 1166; Landon v. United Rys., 237 S.W. 496; Belt v. Goode, 31 Mo. 128. (5) One's prior negligence is not excused by conduct in emergency where the emergency resulted from such negligence. Windsor v. McKee, 22 S.W.2d 65; O'Rourke v. Lindell Railway, 44 S.W. 254, 142 Mo. 342; Iman v. Walter Freund Bread Co., 58 S.W.2d 477. (6) In sole negligence instructions, the jury should not be asked to pass on questions of law. It is the function of a jury to decide fact issues. Long v. Mild, 149 S.W.2d 853; Shields v. Keller, 153 S.W.2d 60.

Breuer & Northern for respondent.

(1) A person meeting a car coming from the opposite direction may be justified, under some circumstances, in turning out to the left instead of to the right. 2 Blashfield, sec. 920, p. 64; Goehring v. Beltz, 14 S.W.2d 502; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89. (2) A person is not to be deemed contributorily negligent when, in face of sudden danger or in an emergency, he does not exercise the wisest judgment possible. When faced with such a situation, he is bound only to exercise that caution and judgment which could reasonably be expected from an ordinarily prudent person under the circumstances. 4 Blashfield, sec. 2733, p. 482; Egan v. Palmer, 221 Mo.App. 823, 293 S.W. 460; 12 Blashfield, sec. 7706, p. 82. (3) Cautionary instructions are allowable not as a matter of right, but largely within the discretion of the court, and have received the approval of the appellate courts of this State in numerous decisions and in late cases. Gardner v. Turk, 123 S.W.2d 158. (4) It is unnecessary to qualify each instruction by express reference to the others. 1 Raymond on Instructions, sec. 71, p. 63; Scott-Force Hat Co. v. Bank, 127 Mo. 392, 30 S.W. 183. (5) The subsequent assumption of a fact previously submitted in the instruction is not erroneous. Guthrie v. Albert Wenzlick Realty Co., 54 S.W.2d 801; Koonse v. Mo. Pac. R. Co., 322 Mo. 813, 18 S.W.2d 467; Costello v. Kansas City, 219 S.W. 386; Schraff v. Standard Tank Car Co., 214 Mo.App. 658, 264 S.W. 56; Nash v. People's Motor Bus Co., 20 S.W.2d 570; Burton v. Phillips, 7 S.W.2d 712. (6) The giving of an instruction correctly stating abstract proposition of law is not error when accompanied by others properly applying the law to the facts. 1 Raymond on Instructions, sec. 67, p. 56; Purdoin v. Trenton, 116 Mo. 358, 22 S.W. 728; Johnson v. Springfield Traction Co., 176 Mo.App. 174, 161 S.W. 1193; Bales v. K. C. Public Serv. Co., 328 Mo. 171, 40 S.W.2d 665. (7) The test of the correctness of an instruction is how the instruction will naturally be understood by the average men who compose our juries on whose judgment of the facts the court must act. Instructions are not required to be drawn with such technical accuracy as to be free from hypercritical objections but are sufficient if the jury can correctly understand therefrom the rules of law applicable. 1 Raymond on Instructions, sec. 68, p. 57; Knapp v. Hanley, 153 Mo.App. 169, 132 S.W. 747; Torreyson v. United Rys. Co., 144 Mo.App. 626, 129 S.W. 409; Nash v. People's Motor Co., 20 S.W.2d 570; Keith v. Kansas City, 95 S.W.2d 647; Gilpin v. Aetna Life Ins. Co., 132 S.W.2d 686. (8) Defendant's Instruction 6 was a cautionary instruction and following an approved instruction. 12 Blashfield, sec. 7721, p. 83; Gardner v. Turk, 123 S.W.2d 158. (9) Defendant's instruction numbered 7 is based upon the unquestioned rule of law that under appropriate circumstances a motorist meeting another car may turn left. The subsequent assumption of the fact previously submitted in the instruction, is not erroneous. Guthrie v. Realty Co., 54 S.W.2d 801; Koonse v. Mo. Pac. R. Co., 322 Mo. 813, 18 S.W.2d 467; Schraff v. Standard Tank Car Co., 214 Mo.App. 658, 264 S.W. 56; Nash v. People's Motor Bus Co., 20 S.W.2d 570; Burton v. Phillips, 7 S.W.2d 712.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

Action for $ 15,000 damages for personal injuries alleged to have been sustained on account of the negligence of defendant taxicab owner, when the taxicab, in which plaintiff was riding as a fare paying passenger, collided head-on with another motor vehicle traveling in the opposite direction upon the highway. The jury returned a verdict for defendant. Plaintiff has appealed and complains of four instructions read to the jury at the request of the defendant.

Plaintiff was employed as a waitress at a hotel in Rolla. On March 10, 1941, she left the hotel about 10 p.m. and went to defendant's taxicab station where she secured a taxi to take her out to Kidd's place on U.S. Highway 66 east of Rolla. Plaintiff testified concerning the trip and circumstances leading to the collision as follows: "I noticed the taxi driver was not altogether on his right side of the road. . . . I know he was going 60, not under, because we were going fast. We came around the curve pretty fast and all at once he saw this car ahead of us. . . . I saw it coming and thought the taxi driver was going to do something, but he didn't do anything, just kept right on, and then just before it got up on us the taxi driver made a sharp turn right in front of it. He turned to the wrong side of the highway. . . . He didn't get over on his full side where he should have been from the time he entered the main highway. . . . The accident happened right there as we were going around the curve. There is a broad driveway and that leads off from Highway 66. That driveway goes into the Pennant station. The public coming off of the highway use it to come into the Pennant Tavern. . . . When I first saw the automobile approaching from the opposite direction it was coming down the hill. I would say it was about a block and a half away. The car approaching from the opposite direction was on its own side of the road. . . . I don't know whether Mr. Sherrell, the driver (of the taxicab), attempted to avoid this accident or not. He did, however, swing his car right in front of the other one. . . . He swung over on the left side of the road. He swung his car abruptly to the left when the other car was three or four yards away from him."

Edward Evans, the operator of the other automobile testified that he didn't slacken his speed when he saw the taxicab coming over to his side of the highway, because he thought the taxicab would turn back. He further said that just before the collision he turned his automobile sharply to the right to avoid a collision with the taxicab. He fixed the speed of the taxicab at about 40 miles an hour and that of his own automobile at about 40 or 50 miles an hour. He admitted he had been drinking intoxicants. According to defendant's evidence, Evans was intoxicated.

The taxicab driver testified for defendant as follows "After I turned on to the highway I proceeded in an easterly direction around 30, not past 40 miles an hour. I was traveling on the right side of the highway. . . . There is a road there that runs down south on the east side of the Pennant Tavern. . . . People generally use that road and driveway in pulling into the tavern when they are traveling toward Rolla from St. James. The other car was traveling about 35 miles an hour. When I first observed this car on my side of the road I slackened my speed. . . . From all appearances he was either turning into the Pennant or was intending to turn down that road. . . . The car did not slow down from the time I first saw it. When he continued to travel on my side of the road toward me I slackened my speed and waited to see if he was going to turn into that road or get back on his side. . . . I remained on my side of the road and then proceeded cautiously on up the road. I couldn't tell just what he was intending to do. I gave him plenty of time and he didn't go back to his side or go into the driveway either one, and I swerved to the left to miss him. . . . The right front end of the cars collided. I swerved suddenly to the left and sped up trying to miss him. I was not on the left-hand side of the road at any time up to the time I pulled to the left. . . . When I first noticed him on the wrong side of the highway he was about 150 or 200 feet away. At that time I was going about 40 miles an hour. I then slackened my speed to 15 or 20 miles an hour. . . . During the time I saw this man over on my side of the highway, it was apparent to me that he was going to make a left turn into this roadway or into the Pennant station. The other man's speed was around 50 miles an hour. He never slowed up. . . . When I was 15 or 20 feet away from this other car I made a sharp turn to...