Middleman v. Complete Auto Transit, Inc.
| Decision Date | 13 November 1972 |
| Docket Number | No. 55770,55770 |
| Citation | 486 S.W.2d 456 |
| Parties | Stephen MIDDLEMAN, Respondent, v. COMPLETE AUTO TRANSIT, INC., Appellant. |
| Court | Missouri Supreme Court |
James E. Hullverson, Hullverson, Richardson & Hullverson, St. Louis, for respondent.
F. X. Cleary, Paul S. Brown, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for appellant.
STOCKARD, Commissioner.
Defendant has appealed from a judgment in the amount of $80,000 for personal injuries resulting from a collision between defendant's truck and plaintiff's Volkswagen bus. This appeal was pending in this court prior to January 1, 1972, and we retain jurisdiction to make final disposition of the case pursuant to par. 4, § 31, 1970 Amendment to Art. V, Constitution of Missouri, V.A.M.S.
Defendant's transport tractor-truck was being operated by Thomas Oliver eastward on Interstate Highway 70 in the middle lane of the three-lane highway at approximately 45 miles an hour. At the time it was raining, the truck was on a slight downgrade, and the highway curved a little to the right. Mr. Oliver applied the foot brakes of the truck to slow down. The truck then 'jackknifed' and Mr. Oliver lost control, the truck hit the guardrail on the median, then straddled it and knocked down 120 feet of the railing and stopped with the front end of the tractor inside the lane for westbound traffic.
Plaintiff was operating his Valkswagen bus westwardly and a collision occurred between the tractor-trailer and the Vokswagen in the lane nearest the guardrail.
Defendant challenges Instruction No. 3 which was as follows:
Your verdict must be for plaintiff if you believe:
First, the driver of defendant's vehicle failed to apply brakes on the vehicle in such manner as to prevent it from jackknifing and sliding out of control, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence the plaintiff sustained damage.
Defendant contends this instruction was erroneous because it gave the jury a roving commission (a) 'to determine the meaning of the phrase 'in such manner as to prevent it (the vehicle) from jackknifing and sliding out of control;" (b) 'to determine what kind of manner of application would prevent the vehicle from jackknifing and sliding out of control' and therefore 'it failed to hypothesize the ultimate fact in issue and violated Civil Rule 70.01(e) (V.A.M.R.);' (c) a finding under the instruction 'would have to be based on speculation, conjecture and surmise as to the appropriateness of the manner in which the brakes were applied or of the fact that whatever the manner of the application, it would have prevented a jackknifing and sliding out of control;' and (d) there was an available MAI such as MAI 17.13, and for that reason Civil Rule 70.01(b) was violated.
We will first consider the last contention. Appellant argues that Civil Rule 70.01(b) provides that whenever there is an MAI applicable in a particular case, such instruction shall be given to the exclusion of any other on the same subject, and that MAI 17.13, authorizing the submission that 'defendant drove on the wrong side of the road,' was applicable and therefore it was error to submit that defendant's truck operator failed to apply the brakes properly.
This case was tried before Friederich v. Chamberlain, Mo., 458 S.W.2d 360, which overruled Strickland v. Barker, Mo., 436 S.W.2d 37. In the Strickland case it was ruled that when a vehicle skidded out of control of the operator into the wrong lane of a highway the vehicle 'was not 'driven' across the center line, and it was error to submit the case on that theory.' In the pending case, the truck of defendant 'jackknifed' and went out of control of the operator, and then crossed the median into collision with plaintiff's Volkswagen. Therefore, at the time of the trial of this case, under the then applicable rulings of this court, it would have been error to submit that defendant's driver 'drove on the wrong side of the road.' In the Friederich case this court overruled the Strickland case, and held that when a vehicle skids out of control of the operator and into the wrong side of the road, a 'prima facie case is made,' and the 'burden of evidence then shifts to the operator of the skidding vehicle to excuse the presence of his vehicle on the wrong side of the road.' In accordance with the then applicable law, plaintiff submitted as negligence the acts of the operator of the truck which he contended caused the truck to 'jackknife' and go out of control. By reason of the rule of law in existence at the time of trial, MAI 17.13 was not then applicable within the meaning of Civil Rule 70.01(b), and we cannot now rule that at the time of trial it was error for the court to fail to submit that defendant's driver drove on the wrong side of the road as the negligence relied on by plaintiff.
The first three reasons asserted by defendant in its challenge to Instruction No. 3 are related and may be considered together.
The instruction was supported by the evidence. Defendant's truck operator testified that when he sought to slow down the truck he applied the foot brake 'in a normal way.' The truck then began to 'jackknife' or 'fishtail,' and the operator released the foot brake and turned his wheels to the right. The truck was equipped with hand-operated trailer brakes which were not applied. Plaintiff's evidence was to the effect that under the factual circumstances and conditions in which defendant's driver attempted to slow his tractor-trailer, the proper method to prevent the trailer from 'jackknifing' would have been to first apply the trailer brakes, and then if a further reduction of speed was needed the brakes operated by the foot pedal should have been applied.
Civil Rule 70.01(e) provides that when an MAI must be modified, or when there is no applicable MAI so that an instruction not in MAI must be given, then such modification or such instruction 'shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.' In Instruction No. 3 the submission of the facts relied on as negligence was that the driver of defendant's tractor-trailer 'failed to apply brakes on the vehicle in such manner as to prevent it from jackknifing and sliding out of control.' We do not consider that this submission gave the jury a 'roving commission' to determine the meaning of the phrase. The meaning is clear and the evidence supported a finding that the application of brakes was improper under the factual condition shown by the evidence, and that there was available to the driver another method which would have prevented the 'jackknifing' and losing of control.
Defendant asserts that the instruction should have required a finding that the driver failed to apply his trailer brakes before he applied his foot brake, that this caused a jackknife and that defendant thereby was negligent. Even if such an instruction would have been acceptable, a matter on which we are not called upon to decide, that does not mean that Instruction No. 3 was erroneous.
The only evidentiary issue tried and presented to the jury was whether the driver's failure to apply the trailer brakes first was negligent and whether it caused the collision. No divergent fact theories as to application of the brakes was presented. We hold that Instruction No. 3 was sufficient under Rule 71.01, V.A.M.R., to submit that issue and that it did not require a finding based on speculation, conjecture and surmise, as defendant contends.
Defendant next asserts prejudicial error resulted from the refusal of the trial court to give its requested Instruction B on contributory negligence as follows:
Your verdict must be for the defendant...
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