Miller v. Watkins

• Decision Date: 12 March 1962
• Docket Number: No. 1,No. 48727,48727,1
• Citation: 355 S.W.2d 1,90 A.L.R.2d 1426
• Parties: Jesse H. MILLER and Hattie P. Miller, his wife, Appellants, v. Alvin G. WATKINS, Respondent
• Court: Missouri Supreme Court

Page 1

355 S.W.2d 1

90 A.L.R.2d 1426

Jesse H. MILLER and Hattie P. Miller, his wife, Appellants, v. Alvin G. WATKINS, Respondent.

No. 48727.

Supreme Court of Missouri, Division No. 1.

March 12, 1962.

Roberts & Roberts, by Raymond R. Roberts, Farmington, for appellants.

Dearing, Richeson & Weier, by H. L. C. Weier, Hillsboro, for respondent-defendant Alvin G. Watkins.

HOUSER, Commissioner.

Jesse and Hattie Miller, parents of seven-year-old Roger Dale Miller, sued Alvin Watkins, owner and driver of a school bus, and William J. Reed, owner and driver of a truck, for $25,000 damages for the death of Roger, who was killed by Reed's truck while crossing the highway in front of his home to board Watkins' bus. A trial jury returned a verdict for both defendants. Plaintiffs appealed as to both defendants but later dismissed their appeal as to defendant Reed, and perfected their appeal only as to defendant Watkins.

The negligence charged and submitted as to defendant Watkins was that Watkins, driving his school bus west on the highway, approached a spot where he customarily picked up school children, stopped or almost stopped the bus on the north side of the highway, and having actual or constructive knowledge that Roger lived on the south side of the highway and had to cross the highway to board the bus and that Roger frequently crossed without watching for traffic, and having observed Reed's truck approaching from the west and that the truck was commencing to stop, negligently signaled truck driver Reed not to stop but to proceed on to the east and pass the bus, intending that Reed rely on the signal; that Reed relied on the signal, drove the truck east past the bus, and struck and killed Roger.

Plaintiffs' sole point on appeal is that the court erred in giving defendants' Instruction D-11, the criticized portion of which we have italicized:

'The Court instructs the jury that in considering the evidence in this case as to whether any defendant was guilty of negligence as defined and submitted in these instructions, you are not at liberty to resort to guesswork, speculation or conjecture, but you must be governed by all the facts and circumstances in evidence and the instructions of the Court, and if, under the evidence and the instructions of the Court, you are unable to determine with any reasonable degree of certainty whether a certain defendant was guilty of negligence, as defined and submitted in these instructions, then the plaintiffs would not be entitled to recover against said defendants and your verdict must be in favor of that defendant; and in this connection, the Court instructs you that under no circumstances are you to be swayed or influenced by bias, prejudice or sympathy, for or against any party to this action.'

Appellants claim this instruction cast upon plaintiffs an excessive burden of proof. This is a civil action. Plaintiffs were required to prove defendant's negligence by the preponderance, that is, the greater weight of the credible evidence, Thompson v. Jenkins, Mo.Sup., 330 S.W.2d 802, 804; not beyond a reasonable doubt. Instruction D-11 required plaintiffs to prove defendant's negligence to a 'reasonable degree of certainty.' A certainty is that which is certain or sure. It has the quality of indubitable reality. It is a fact or truth unquestionably established. Its antonym is dubiousness. Webster's New International Dictionary, Second Ed. To require proof to a reasonable degree of certainty is to require proof beyond a reasonable doubt, which is a higher burden of rpoof than that required in civil actions. Thompson v. Jenkins, supra; Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43, 47. The giving of Instruction D-11 constituted reversible error. Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 215 S.W.2d 50.

Respondent Watkins claims the judgment in his favor was for the right party and should stand regardless of any procedural error, because plaintiffs failed as a matter of law to make a submissible case of negligence. The jury could have found the following facts: Watkins, driving the school bus west, came over the crest of the hill 600 feet east of the spot where Roger was struck. The highway before him was level and his view was clear. The north side (i. e., the front) of Roger's house was 29 feet south of the south edge of the blacktop pavement. The front yard of Roger's home, which was nearly level with the highway, and the east side of Roger's house, were in plain view of Watkins as he approached. Watkins knew the location of Roger's house on the south side of the highway and that Roger customarily crossed the highway to board the bus. The place where Watkins customarily stopped to pick up Roger and the two Smith children was a point on the north side of the highway approximately even with the west side of the lot on which Roger's house was built. The bus was 32 feet long. The rear of the bus in its stopped position at the pickup point would be approximately even with the walk running from the front door of Roger's house to the highway. There was a car parked in the driveway between Roger's house and the next house west. The parked car, which was 8 to 12 feet from the pavement, would partially block the view of a child proceeding north from Roger's house to the highway, looking west for approaching traffic. There were four mailboxes three or four feet south of the south edge...