Nelson v. Evans

• Decision Date: 23 April 1936
• Docket Number: 33636
• Citation: 93 S.W.2d 691,338 Mo. 991
• Parties: William R. Nelson v. Sterling Evans, Appellant
• Court: Missouri Supreme Court

93 S.W.2d 691

338 Mo. 991

William R. Nelson v. Sterling Evans, Appellant

No. 33636

Supreme Court of Missouri

April 23, 1936

Appeal from Jackson Circuit Court; Hon. C. Jasper Bell Judge.

Affirmed and remanded.

Mosman Rogers, Bell & Buzard for appellant.

(1) Instruction D is not erroneous in failing to require the jury to find that the negligent failure to look caused the injury. Cornovski v. St. Louis Transit Co., 206 Mo. 263, 106 S.W. 51; Westerman v. Brown Cab Co., 270 S.W. 142; Anderson v. Railroad Co., 61 S.W. 874; Weiss v Sodemann Heat & Power Co., 227 S.W. 837; Freeman v. M. & K. Tel. Co., 160 Mo.App. 271, 142 S.W. 736. (a) The evidence justified the submission. (b) The failure to look was the proximate cause of the collision. Kelsay v. Ry. Co., 129 Mo. 362, 30 S.W. 339; State ex rel. v. Bland, 297 Mo. 648, 237 S.W. 1018; Underwood v. West, 187 S.W. 84; Payne v. Railroad Co., 136 Mo. 562, 38 S.W. 308; Gumm v. Railroad Co., 141 Mo.App. 306, 125 S.W. 796; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21. (c) The instruction required the jury to find that the defendant was in the exercise of the highest degree of care and caution in the management, control and operation of the truck, and therefore, a finding under the instruction excludes a finding of negligence against the defendant. (2) Instruction A did not require the plaintiff to prove his case beyond a reasonable doubt. Shepard v. Schaff, 241 S.W. 431. (3) The question of plaintiff's excessive speed was properly submitted by Instruction B. State v. Haid, 333 Mo. 76, 62 S.W.2d 400; Nixon v. Hill, 227 Mo.App. 312, 52 S.W.2d 208; Gay v. Samples, 227 Mo.App. 771, 57 S.W.2d 768; Cox v. Reynolds, 18 S.W.2d 575. (4) Instruction C was properly given. (a) It was the converse of plaintiff's Instruction 1. (b) It was within the evidence and properly submitted the question of plaintiff's negligence.

Harvey Roney and Carl Borello for respondent.

(1) Instruction D was improperly given because (a) it failed to require the jury to find that plaintiff's negligence, hypothesized in the instruction, was the direct cause of the collision, (b) the evidence did not justify the giving of such instruction, (c) it improperly assumed that such failure to look was the proximate cause and failed to set out all essential facts, and fails to direct the jury's attention to all the circumstances under which such failure to look would be negligence. Oates v. Rys. Co., 168 Mo. 535, 68 S.W. 906; Tappmeyer v. Ryckoff, 45 S.W.2d 890; Nordman v. Hahn Bakery Co., 298 S.W. 1037; Miller v. Wilson, 288 S.W. 999; Polkowski v. St. Louis Pub. Serv. Co., 68 S.W.2d 889; Croak v. Croak, 33 S.W.2d 1000; Robinson v. Ross, 47 S.W.2d 125. (2) Defendant's Instruction A was improperly given, and the trial court's action should therefore be affirmed because, the instruction imposes upon the plaintiff a much greater burden than the law requires. Payne v. Reed, 332 Mo. 343, 59 S.W.2d 49; Aly v. Terminal Co., 78 S.W.2d 858; Collins v. Beckman, 79 S.W.2d 1054. (3) Defendant's Instruction B, was erroneous and the action of the trial court should therefore be affirmed, because, the instruction fails to require the jury to find (a) that plaintiff's negligence was the direct cause of the collision, (b) that excessive speed as submitted in this instruction was not the direct cause of the collision. Cases under point (1). Howard & Brown Realty Co. v. Berman, 245 S.W. 606. (4) Defendant's Instruction C was erroneously given, and the action of the trial court should therefore be affirmed, because, (a) the instruction fails to require the jury to find that such negligence was the direct cause of the collision, (b) that the instruction does not submit the negligence charged in defendant's answer, and does not limit or restrict plaintiff's driving on the left side of the street to the time of the collision or immediately prior thereto. Authorities under point (1). Yore v. Mueller, 147 Mo. 679, 49 S.W. 857; White v. Mo. Motor Dis. Co., 47 S.W.2d 250; Boyer v. North End Drayage Co., 67 S.W.2d 770; Lindstroth v. Peper, 188 S.W. 1127.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This is an action to recover damages for alleged personal injuries. There was a verdict for appellant, defendant below. The trial court sustained the motion for a new trial and appellant appealed. In the petition the respondent, plaintiff below, asked for a judgment in the sum of $ 10,294.45 hence our appellate jurisdiction. The trial court granted a new trial because of alleged error in giving defendant's Instruction (d).

Respondent has briefed the case here and contends that the trial court erred in giving instructions numbers (a), (b), (c) and (d) as requested by appellant. To intelligently discuss the correctness of instructions (b), (c) and (d) it will be necessary to state the facts. The alleged injury, sustained by plaintiff, resulted from a collision of plaintiff's car and a truck owned by defendant and driven by one McBroom. This collision occurred at about seven-thirty P. M., September 26, 1931, on Spring Branch Road, between Kansas City and Independence, Missouri. The roadway was surfaced with macadam sixteen feet in width. Plaintiff was traveling east and was following another car, driven by a man named Webb. McBroom was traveling west with a truck load of apples. A milk truck was standing partly on the shoulder on the north side of the road near the top of a hill. The collision occurred about forty feet east of this standing truck.

Plaintiff's case was submitted to a jury upon the theory that as McBroom was approaching the milk truck he turned to the left and over to the south side of the highway into the path of plaintiff's car. There was evidence to support plaintiff's theory. The defendant introduced evidence to the effect that plaintiff was driving his car at a high and dangerous rate of speed and that he was attempting to pass the car ahead of him, driven by Webb, and as he attempted to do so drove his car to the north side of the roadway into the path of McBroom's truck. Disinterested witnesses testified that they were in a filling station a short distance west of where the collision occurred; that both plaintiff and Webb were driving at a high rate of speed and were apparently racing.

Instruction (d) reads as follows:

"The court instructs the jury that under the law of this state the duty was upon the plaintiff to exercise the highest degree of care and caution in the management, control and operation of his automobile at the time in question, and if you find and believe from the evidence that the plaintiff failed to exercise the highest degree of care and caution, if so, in the management, control and operation of his automobile in that he negligently and carelessly failed to keep and maintain a reasonably careful and vigilant lookout for other vehicles upon the road he was traveling (if you find that he did so fail), and that as a result of such failure, if any, the automobile, which plaintiff was driving, was caused to collide with the defendants' automobile truck, and if you further find that G. W. McBroom was at all the times in the exercise of the highest degree of care and caution in the management, operation and control of his automobile, then your verdict must be for the defendant.

"(Given.)"

Respondent in his brief states that there was no evidence upon which to base this instruction. Respondent testified that he first saw the truck immediately after passing over the brow of the incline and that he was then within fifty or sixty feet thereof. It is, therefore, argued that respondent saw the truck at the first moment it was visible. McBroom testified that as he was ascending the hill he noticed a glare from the lights of an approaching car; that he also noticed the milk truck standing partly on the highway and therefore slowed down intending to stop within forty feet thereof; that when his truck was about at a standstill plaintiff's car was approaching at a high rate of speed and turned to the north, just as he passed the milk truck, as if to pass Webb's car; that then plaintiff's car skidded, the rear end striking the front end of the truck bending the frame work and driving the front wheel under the truck. The truck did not move after the impact and there is evidence that it was on the north side of the center of the road with the right wheels over on the shoulder. Assuming that evidence to be true, which of course we must do for the purpose of discussing this instruction, then the plaintiff saw the truck only a second before the impact. It is evident that McBroom noticed plaintiff's car approaching for a much longer period because he had nearly brought his truck to a standstill at the time of the collision. This could not have been done in a second. It was extremely dangerous for plaintiff to attempt to pass Webb's car as it was passing over the hill. The jury was authorized to find that plaintiff could have, by the exercise of the highest degree of care, discovered, more than a second before the impact, that a car was approaching from the opposite direction. McBroom testified that the headlights of the truck were lighted. It is in evidence that at the point of collision the glare of the lights was visible before the truck could be seen. The jury was, therefore, authorized to find that had plaintiff kept a proper lookout for an oncoming car the collision would not have occurred. We, therefore, rule the point against respondent.

It is further contended that the instruction authorized a verdict for defendant if the jury found that plaintiff failed to maintain proper vigilance and that the failure to keep a proper lookout can never be the proximate cause of a collision. The case of Robinson v....