McDonald v. Plas, 24233

• Decision Date: 21 February 1966
• Docket Number: No. 24233,24233
• Parties: James L. McDONALD, Plaintiff-Appellant, v. Frank C. PLAS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 929

401 S.W.2d 929

James L. McDONALD, Plaintiff-Appellant, v. Frank C. PLAS, Defendant-Respondent.

No. 24233.

Kansas City Court of Appeals, Missouri.

Feb. 21, 1966.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 4, 1966.

Robert A. Meyers and George C. Denney, Kansas City, for appellant.

Norman O. Sanders, Fred J. Freel, Sheridan, Sanders, Peters & Carr, Kansas City, for respondent.

BLAIR, Judge.

James L. McDonald brought suit against Frank C. Plas for $10,000.00 for personal injuries he claimed he suffered as a result of a collision between the ambulance he was operating and an automobile operated by Plas. A trial before the court and jury resulted in a verdict and judgment against McDonald and he appeals.

The collision occurred in the intersection of Brookside Boulevard and 59th Street in Kansas City. Brookside runs north and south and 59th runs east and west. Traffic is controlled at the intersection by colored electric signal lights, green indicating permission to vehicles to proceed through the intersection and red requiring them to stop until the red signal light turns green. When the lights are green for east and west traffic on 59th, they are red for north and south traffic on Brookside and vice-versa.

On October 15, 1962 about 6 P.M. McDonald was operating an ambulance and traveling south on Brookside approaching 59th. Plas was operating his automobile and traveling east on 59th approaching Brookside. The ambulance admittedly was answering an emergency call. It was equipped with the statutory siren and red light. Sec. 304.022 V.A.M.S. McDonald received the emergency call at a time when he was many blocks from the intersection. He turned the siren and light on at once and set out to answer the call. This equipment operated continuously until the ambulance and automobile collided in the intersection. Plas drove into the intersection with a favorable green light facing him. McDonald drove into it with a forbidding red light facing him.

It is not questioned that McConald was authorized to drive his ambulance through the red signal light if he observed the measure of care for the safety of others required of him in the circumstances. Nor is it questioned that Plas failed to yield the right-of-way to McDonald as required by Section 304.022, subd. 1, as follows: 'Upon the immediate approach of an emergency vehicle giving audible signal by siren or while having at least one lighted lamp exhibiting red light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as far as possible to the right of the traveled portion of the highway and thereupon stop and remain in such position until such emergency vehicle has passed, except when otherwise directed by a police or traffic officer.'

McDonald submitted his claim to the jury by a single verdict-directing instruction grounded on the theory that Plas caused the collision and his injury by failing to yield the right-of-way as required by Section 304.022, subd. 1. In substance it told the jury that if it found that McDonald was operating an emergency ambulance, in the exercise of the highest degree of care, and that as he approached the intersection his siren was 'sounding and audible' and that Plas actually heard or, by the exercise of the highest degree of care, could have heard, the siren sounding in time thereafter to have stopped his automobile and yielded the right-of-way, and that he negligently failed to do so and thereby collided with the ambulance and caused McDonald's injuries, then McDonald was entitled to a verdict, unless he was guilty of contributory negligence.

McDonald challenges the propriety of two contributory negligence instructions Numbered 4 and 5 given for Plas by the court. There is no challenge in McDonald's original brief to the sufficiency of the evidence to support these instructions, except this statement in the brief's 'Conclusion': 'Instruction No. 5 ignored and omitted plaintiff's right of way as an emergency vehicle which plaintiff retained unless there be evidence not here present, that he knew or should have known that the defendant would not yield.' Plas says in his 'Statement of Facts' in his responding brief: 'Since no question has been raised in this appeal regarding the sufficiency of the evidence, respondent will not elaborate upon appellant's abbreviated statement of the facts.' McDonald filed a reply brief in which there is no mention of the sufficiency of the evidence. In his 'Points Relied On' and his 'Argument' in his original brief McDonald deals with these two instructions entirely on the theory that they are misstatements of the law and not on any theory that the evidence was insufficient to support giving them to the jury. McDonald's terse and unexplained statement in the 'Conclusion' of his brief that evidence necessary to support Instruction No. 5 is 'not here present' is wholly insufficient to present that question to this court for review. V.A.M.R. Civil Rule 83.05; Lewis v. Watkins, Mo.App., 297 S.W.2d 595, 597; Whitehead v. Schrick, Mo.App., 328 S.W.2d 170, 179; Clemons v. Becker, Mo., 283 S.W.2d 449, 451--452; Vol. 3, Mo.Digest, Appeal and Error, k761. We will assume these instructions were supported by substantial evidence.

'We are mindful that under the terms of Civil Rule 83.24 it is our duty to construe all rules of civil procedure liberally so as to promote justice, to minimize the number of cases disposed of on procedural questions and, generally, to determine cases on their merits. We have adhered to that policy and have in numerous instances overlooked violations of Rule 83.05 when the interests of justice so required. However, this court would be derelict in its judicial duty if it did not insist upon at least substantial compliance with the rules governing appellate procedure. See Ambrose v. M.F.A. Co-Operative Association of St. Elizabeth, Mo.Sup., 266 S.W.2d 647; Weinbrenner v. McCall, Mo.App., 336 S.W.2d 532. The burdens that result from imperfect appeals fall upon responding parties as well as upon reviewing courts. When appellants fail to state facts and define issues as the rules prescribe, respondents are deprived of their just entitlement--a full opportunity to know and answer the precise questions in controversy.' Walker Brothers, Inc. v. J. K. Seear (U.S.A.) Ltd. et al., Mo.App., 364 S.W.2d 51, 52.

Contributory negligence Instruction No. 5, given for Plas, reads as follows: 'The Court instructs the jury that the plaintiff was under an obligation to exercise the highest degree of care and to keep a lookout for the approach of other vehicles at the intersection of Brookside Boulevard with 59th Street, accordingly, if you find and believe from the evidence that the plaintiff failed to exercise the highest degree of care in keeping a lookout for the approach of the automobile operated by the defendant, and if you further find that such failure on the part of plaintiff, was negligence, if you so find, and if you further find that said negligence on the part of plaintiff, if any, directly and proximately contributed to cause the collision mentioned in evidence, then you are instructed that you must return your verdict in favor of defendant even though you may find that he was also negligent in the operation of his said automobile.'

Concerning this instruction McDonald's 'Point Relied On' argues: 'Instruction No. 5 directs a verdict against the plaintiff if plaintiff 'failed to exercise the highest degree of care in keeping a lookout for the approach of the automobile operated by defendant' and was thereby negligent. This was error because it placed upon plaintiff the absolute duty of looking and seeing all that was possible to see when under the law the plaintiff was justified in assuming that the defendant would observe the statute and yield the right of way until plaintiff knew or in the exercise of ordinary care should have known that defendant obviously did not intend to yield the right of way.'

McDonald argues that while operating an emergency vehicle and answering an emergency he was justified in assuming that Plas would observe Sec. 304.022, subd. 1, supra, and yield the right-of-way until he knew or, in the exercise of ordinary care, should have known Plas obviously did not intend to do so. He cites Frandeka v. St. Louis Public Service Co., Mo., Div. 1, 1950, 234 S.W.2d 540, 541, 545; Rowe v. Kansas City Public Service Co., K.C.App., 1952, 241 Mo.App. 1225, 248 S.W.2d 445, 449; and Allman v. Yoder, Mo., Div. 2, 1959, 325 S.W.2d 472, 477--478. These decisions all ruled that the driver of an emergency vehicle answering an emergency was required to exercise only ordinary care. The later decision in Ficken v. Hopkins, Mo., Div. 2, 1965, 389 S.W.2d 193, 199, overrules Allman without mentioning Frandeka or Rowe, saying: 'As previously noted, Section 304.010 requires that 'Every person operating a motor vehicle on the highways of this state * * * shall exercise the highest degree of care, * * *,' and neither it nor Section 304.022, pertaining to emergency vehicles makes any exception. In other words, the driver of an emergency vehicle authorized by par. 4(2) of Section 304.02i to do the things therein provided without constituting a violation of what are known as the rules of the road, when doing them, must exercise the highest degree of care, which is such care as a very careful and prudent person would ordinarily use under the same or similar circumstances. For this reason the statement in Allman v. Yoder, Mo., 325 S.W.2d 472, relied on by Goetz and Eickhoff which indicates that ordinary care only is required in some situations does not correctly state the degree of care required by the statute.' Neither McDonald nor Plas has cited Ficken. Obviously the decisions of ...