Motsinger v. Queen City Casket Co., 51647

• Decision Date: 12 December 1966
• Docket Number: No. 51647,No. 2,51647,2
• Citation: 408 S.W.2d 857
• Parties: Ruby Jewell MOTSINGER, Plaintiff-Appellant, v. QUEEN CITY CASKET COMPANY and Elmer Grant Brown, Defendants-Respondents
• Court: Missouri Supreme Court

Page 857

408 S.W.2d 857

Ruby Jewell MOTSINGER, Plaintiff-Appellant, v. QUEEN CITY CASKET COMPANY and Elmer Grant Brown,

Defendants-Respondents.

No. 51647.

Supreme Court of Missouri, Division No. 2.

Dec. 12, 1966.

John B. Ewing, Jr., John Gibson, Marvin Brenner, Kansas City, Brenner, Ewing, Lockwood & O'Neal, Kansas City, of counsel, for appellant.

William H. Sanders, Dean F. Arnold, Thomas I. Osborne, Kansas City, Caldwell Blackwell Sanders & Matheny, Kansas City, of counsel, for respondents.

WESTHUES, Special Commissioner.

Plaintiff Ruby Jewell Motsinger filed a petition seeking damages in the Circuit Court of Jackson County, Missouri, against Queen City Casket Company and Elmer Grant Brown. In the first count of the petition, she asked $20,000 as damages for personal injuries and in a second count, she prayed for $550 as damages to her car. Plaintiff stated that the damages were the result of a collision of a truck driven by defendant Brown and owned by defendant Casket Company with plaintiff's car which she was driving. A trial resulted in a jury verdict for the defendants. Plaintiff appealed from the judgment entered on the verdict by the trial court.

Plaintiff briefed six points, all pertaining to Instruction No. 3, given by the trial court at defendants' request.

Plaintiff's case was submitted to the jury on the theory of defendants' failure 'to keep a careful lookout, or drove at an excessive speed, or violated the traffic signal, * * *.'

Defendants' defense was submitted by Instruction No. 3, the correctness of which is before this Court for decision on this appeal. We deem it best to quote it in full, as follows:

'Your verdict must be for the defendants, whether or not defendants were negligent, if you believe:

'First, plaintiff either:

failed to keep a careful lookout, or violated the traffic signal, or

failed to make her left turn in the manner specified under the ordinance as to left turns which has been read in evidence, or

'Plaintiff knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have applied his brakes but plaintiff failed to do so.

'Second, plaintiff's conduct, in any one or more of the respects submitted in paragraph First, was negligent; and

'Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.'

In the first four points briefed, plaintiff contends that there was insufficient evidence to sustain the charge of negligence relied on by the defendants and submitted by Instruction No. 3 in the disjunctive. In the last two points briefed, plaintiff says that Instruction No. 3 is erroneous for the reason that it violated S.Ct. Rule 70.01, V.A.M.R. We have concluded that plaintiff's last two points must be sustained. In view of the fact that the case must be remanded, it would serve no useful purpose to rule on the first four points. We cannot say that the parties on a retrial will submit the case on the same issues as they did on the first trial.

The record disclosed that the collision occurred on November 29, 1962, at about 11:45 a.m., at the intersection of Noland Road and Highway 50 in Jackson County, Missouri. Plaintiff was driving her car south on Noland Road, intending to turn left and to the east on Highway 50. Defendant Brown was driving a truck west on Highway 50, intending to go to Kansas City, Missouri. At the time, there was an electric signal device at the intersection. Mr. Brown, the driver of the truck, and plaintiff each testified that the green light was in his or her favor as they neared the intersection; further, each claimed that the speed of his or her vehicle was about 35 miles per hour immediately before they reached the intersection.

Plaintiff testified that as she was approaching the intersection she reduced the speed of her car by taking her foot off the accelerator intending to make a left turn onto Highway 50; that as she entered the intersection, the electric signal was green in favor of southbound traffic; that just as she was beginning the left turn, the impact took place; that when she first saw defendants' truck, 'He was coming so fast I didn't have time to do anything.' She admitted that she did not apply the brakes, stating that she had no time to do that. Defendants' truck struck plaintiff's car broadside at the left front door. Plaintiff sustained serious injuries and her car was damaged.

Brown testified that as he approached the intersection, and when about 400 feet east of the light, the light turned green for westbound traffic; that he saw plaintiff's car when he was about 250 feet from the intersection; that he applied the brakes but could not stop in time to avoid the collision. He admitted that he did not give any warning nor did he swerve. There was a dispute as to the distance skid marks were visible on the pavement of Highway 50. A police officer measured skid marks in the presence of Brown. The officer testified that the marks extended from the truck back for a distance of 241 feet. Brown claimed the skid marks made by his truck were not more than 50 to 100 feet in length.

Rule 70.01, supra, provides, in substance, that a failure to follow the Missouri Approved Instructions forms shall be deemed error and that the question of whether the error constitutes prejudicial error shall be judicially determined.

In preparing Instruction No. 3, defendants evidently followed forms found in No. 28.01 and No. 17.04 of the Missouri Approved Jury Instructions.

Plaintiff says that in the last...