Nichols v. Bresnahan

• Decision Date: 14 June 1948
• Docket Number: 40453
• Parties: Pauline Nichols, Appellant, v. Jerry Joseph Bresnahan
• Court: Missouri Supreme Court

212 S.W.2d 570

357 Mo. 1126

Pauline Nichols, Appellant, v. Jerry Joseph Bresnahan

No. 40453

Supreme Court of Missouri

June 14, 1948

Motion for Rehearing or to Transfer to Banc Overruled July 12, 1948.

Appeal from Circuit Court of City of St. Louis; Hon John A Withhaus, Judge.

Affirmed.

Milton F. Napier and Louis E. Zuckerman for appellant.

(1) The verdict and judgment are against the evidence; against the law; and against the law and the evidence in the case. Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; Wright v. Osborn, 201 S.W.2d 935; Agee v Herring, 298 S.W. 250; Young v. St. Louis, I.M. & S. Ry. Co., 127 S.W. 19, 227 Mo. 307; Kaley v Huntley, 333 Mo. 771, 63 S.W.2d 21; Nicholas v. C., B. & Q.R. Co., 188 S.W.2d 511; Sec. 2496 Revised Code, City of St. Louis, 1936; Sec. 8383, R.S. 1939; Laws 1941, p. 438, sec. 1; Secs. 8386e, 8386m, 8386n, R.S. 1939; Bootie v. K.C. Pub. Serv. Co., 183 S.W.2d 892; McGowan v. Wells, 324 Mo. 652, 24 S.W. 633; Cox v. Term. Railroad Assn., 331 Mo. 910, 55 S.W.2d 685; Moore v. E. St. L. & Sub. Ry. Co., 54 S.W.2d 767; Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691. (2) The court erred in giving Instruction 5, at defendant's request, because it was a misdirection, and incurably so, resulting in the erroneous verdict and judgment in favor of defendant and against plaintiff; was misleading to the jury; it failed to tell the jury that they may imply a disregard or conscious indifference to the consequences of his acts by defendant; both instructions 5 and 6, given for defendant, required the jury to find the defendant "guilty" before passing upon the question of his negligence. Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Stitzell v. Arthur Morgan Trucking Co., 118 S.W.2d 49; Young v. St. L., I.M. & S. Ry. Co., 127 S.W. 19, 227 Mo. 307; Agee v. Herring, 298 S.W. 250; Bradley v. Becker, 296 Mo. 548, 246 S.W. 561. (3) The court erred in giving Instruction 6. The gist of plaintiff's action was "negligence", but the court submitted the case on the theory of wanton and reckless misconduct, which were only "degrees" of negligence showing the grossness of the lack of care of defendant, so that the question of whether or not the defendant's conduct was negligent was never submitted to or tried by the jury. Goodwin v. Eugas, 236 S.W. 50; State ex rel. v. Shain, 341 Mo. 733, 108 S.W.2d 351; Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Stitzell v. Arthur Morgan Trucking Co., 118 S.W.2d 49. (4) The court erred in refusing to give Instruction 10, requested by plaintiff, because it was the only instruction correctly outlining to the jury the measure of care required of defendant; and without it, the jury was left to speculate on whether defendant was "guilty" of "wrong-doing". Without such guide, Instruction 6, was particularly harmful to plaintiff. Young v. St. Louis, I.M. & S. Ry. Co., supra; Agee v. Herring, 298 S.W. 250.

David A. McMullan for respondent; Doris J. Banta of counsel.

(1) The plaintiff's evidence failed to sustain the allegations in her petition and the court should have sustained defendant's motion for a directed verdict made at the end of the plaintiff's case and at the end of all the evidence. Evans v. Illinois Central, 233 S.W. 397, 289 Mo. 493; Connole v. East St. Louis & Suburban Ry., 340 Mo. 690, 102 S.W.2d 581; Raming v. Metropolitan St. Ry. Co., 157 Mo. 477, 57 S.W. 268; State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46; Schmidt v. Mo. Pacific R. Co., 191 Mo. 215, 90 S.W. 136; Moore v. East St. Louis & Suburban Ry. Co, 54 S.W.2d 767; Watkins v. Spears Ship-by-Truck, 72 S.W.2d 818; Christy v. Butcher, 153 Mo.App. 397, 134 S.W. 1058; Astin v. Chicago, etc., Ry. Co., 143 Wis. 477, 128 N.W. 265; 45 C.J., pp. 672-675, 1273. (2) The verdict and judgment are not against the weight of the evidence. Connole v. East St. Louis & Suburban Ry., 340 Mo. 690, 102 S.W.2d 571; Riskel v. Kansas City Pub. Serv., 129 S.W.2d 851; Toroian v. Parkview Amusement Co., 56 S.W.2d 134, 331 Mo. 700; Stoll v. First Natl. Bank, 134 S.W.2d 97, 345 Mo. 582; Murphy v. Kroger Grocery & Baking Co., 171 S.W.2d 610, 350 Mo. 1186; Boneau v. Swift & Co., 66 S.W.2d 172; Christy v. Butcher, 134 S.W. 1058, 153 Mo.App. 397; Murray v. DeLuxe Motor Stages, 133 S.W.2d 1074. (3) The court did not err in giving instructions numbered 5 and 6. Said instructions were proper under the pleadings and theory upon which the case was tried. Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960; Jones v. Central State Oil Co., 350 Mo. 91, 102, 164 S.W.2d 914; Flaherty v. St. Louis Transit Co., 207 Mo. 318, 106 S.W.2d 15; Schaaf v. St. Louis Basket & Box Co., 151 Mo.App. 35, 131 S.W. 936, 940; Jones v. Missouri Freight Transit Corp., 225 Mo.App. 1076, 40 S.W.2d 465; Denkman v. Prudential Fixture Co., 289 S.W. 591; Connole v. East St. Louis & Suburban Ry. Co., 340 Mo. 690, 102 S.W.2d 581. (4) Plaintiff failed to object to the use of the word "guilty" in her objections to the instructions when given and in her motion for a new trial. Missouri Civil Code, Laws 1943, p. 353; Supreme Court Rule 3.21; Millaway v. Brown, 197 S.W.2d 987; Goggin v. Schoening, 199 S.W.2d 87. (5) The court did not err in refusing to give instruction numbered 10 requested by plaintiff. Gillioz v. State Highway Comm., 348 Mo. 211, 153 S.W.2d 18; Kieselhorst Piano Co. v. Porter, 185 Mo.App. 676, 171 S.W. 949.

Barrett, C. Bohling and Barrett, CC., concur.

OPINION

BARRETT

About 1:30 a.m., June 15, 1944, the appellant, Pauline Nichols, left her employment at the Fairgrounds Hotel and started walking across Natural Bridge Avenue, intending to board a bus on the north side of the street. The defendant, Bresnahan, driving his Chrysler automobile from the east, hit her when she was near the white center line of the street. Upon a second trial for damages for her resulting injuries a jury found for the defendant.

The plaintiff alleged in her petition that she was struck and injured "through the willfulness and wanton recklessness of defendant." The willful and wanton reckless acts of the defendant were alleged to be that he operated his automobile in violation of a city ordinance in that he "willfully, illegally and recklessly drove and operated his said automobile at a rate of speed between sixty and seventy miles per hour, which was excessively dangerous and wanton recklessness under the circumstances and constituted a willful violation of the provisions of said ordinance and a willful and wanton reckless disregard of the safety, life and limbs of persons, including plaintiff, . . ." It was alleged that he "willfully, recklessly and in wanton disregard of the life and limbs of persons" drove and operated the automobile at a greater speed than he could stop after he was able to discover persons in the street with the aid of the headlights on his car. It was charged that the defendant "did willfully, recklessly and with wanton disregard for the life and limbs of the plaintiff" operate his automobile at the excessively high and dangerous speed of sixty or seventy miles an hour "toward, against and upon the plaintiff" and that "said acts of defendant were willful, wanton and malicious, in this, that when defendant saw plaintiff crossing said Natural Bridge Avenue as aforesaid, defendant intentionally and wrongfully attempted to pass in front of and across the line of the path in which plaintiff was crossing" without warning and without slackening his excessive speed. Her instructions likewise submitted whether the defendant's acts and conduct, under the circumstances, were "reckless, wanton and willful." In addition the plaintiff submitted and the court gave an instruction defining "reckless," "willful" and "wanton." In part this instruction defined the terms as meaning "the doing of an act in reckless disregard for the safety of others when from a knowledge of surrounding circumstances and existing conditions the person charged must have known his conduct would naturally or probably result in injury to others and such want of care and want of regard for the rights of others as to imply a conscious disregard and indifference to the attendant consequences," an omission or act of such character "as to show on the part of such person a reckless disregard for human life or limb."

The plaintiff claimed and her evidence was to the effect that after she was in the street she saw the headlights of the plaintiff's car "coming down the center of the white line," "coming direct for me out of -- he was coming at desperate speed all the way just straight on me and all I could do was just to pick up a little and try to run as fast as I could." And, "it seemed like his lights were following me . . . they were right on top of me all the time; the faster I run the more they were on me." The defendant's speed was estimated to be sixty-five miles an hour by her witnesses and the inference was that he was about to run away after he struck her.

The defendant testified that he had stopped at Grand Avenue for a stop-light and then proceeded on across Natural Bridge at a speed of twenty or twenty-five miles an hour when "about five or six feet in front of me suddenly the form of a person appeared in my headlights." He said, "it seemed as though somebody came right in front of my headlights and like the woman was turning to go south and changed her mind and started running north, and then the impact," and he applied his brakes and stopped within twenty-five or thirty-five feet. After he saw the appellant in the street there was neither time nor space in which to signal or avoid hitting her.

Upon this appeal the plaintiff claims that the jury's verdict is so contrary to the law and the evidence...