Partlow v. Goldstein, 16049.

• Decision Date: 29 January 1959
• Docket Number: No. 16049.,16049.
• Parties: Earl PARTLOW, Appellant, v. Albert GOLDSTEIN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

263 F.2d 169 (1959)

Earl PARTLOW, Appellant, v. Albert GOLDSTEIN, Appellee.

No. 16049.

United States Court of Appeals Eighth Circuit.

January 29, 1959.

Rene J. Lusser, St. Louis, Mo. (Lusser, Morris & Burns, St. Louis, Mo., Paul F. Niedner, St. Charles, Mo., and Gerard M. Dorsey, St. Louis, Mo., on the brief), for appellant.

John F. Evans, St. Louis, Mo. (Evans & Dixon, St. Louis, Mo., on the brief), for appellee.

Before JOHNSEN, VOGEL and MATTHES, Circuit Judges.

VOGEL, Circuit Judge.

Earl Partlow commenced this action in state court in Missouri to recover damages for personal injuries sustained in an automobile accident which occurred while he was riding as a passenger in a motor vehicle driven by the defendant on a highway in Missouri. Removal to federal court was based upon diversity of citizenship and amount involved.

Trial resulted in a jury verdict in favor of the defendant. Plaintiff appeals.

As in all of these accident cases, there is a mass of conflicting and contradictory testimony. In reviewing the case on appeal, we must take that view of the evidence and accept the presumptions which may be reasonably grounded thereon as will tend to support the jury verdict. Thieman v. Johnson, 8 Cir., 1958, 257 F.2d 129; Johnson v. State Farm Mutual Automobile Insurance Co., 8 Cir., 1958, 252 F.2d 158.

The accident occurred on June 8, 1955, upon U. S. Highway No. 40 about one and one-tenth miles east of Warrenton, Missouri. At this point Highway 40 is divided with two 12-foot concrete lanes for westbound traffic and parallel to but separated by a 72-foot grass strip are two similar lanes for eastbound traffic. At or near the point involved there exists a "cross-over" or short north-south roadway which connects the westbound lanes to the eastbound lanes. Late in the afternoon or early evening of the day of the accident Albert Goldstein, the defendant, was driving his 1955 Chevrolet convertible automobile in an easterly direction in the eastbound lanes and at a rate of speed of approximately 60 to 65 miles per hour. The plaintiff, Earl Partlow, was riding as a guest passenger in the Goldstein car. He was asleep when the accident occurred and remembers nothing from the time he fell asleep until he awakened later in a hospital. William Karrenbrock, a farmer, who lives southeast of Warrenton, had been driving his 1946 Chevrolet pick-up truck in a westerly direction in the westbound traffic lanes upon Highway 40 and made a left turn upon the crossover in order to get to the eastbound lanes of the highway, which would take him to his home. Karrenbrock says that before entering the eastbound lanes he brought his truck to a stop and looked. He waited for some eastbound cars to pass him, looked again to his right and saw "other cars coming eastwardly about a third to a half a mile to the west of the cross-over". He then proceeded onto the highway and to cross over into the right-hand lane of the two eastbound lanes, making a left turn off the crossover. When he was some distance east of the east edge of the cross-over, going at about 10 miles per hour, his truck was struck at the left rear and forced off the highway on the south side thereof. The defendant testified that he first noticed the Karrenbrock truck at a distance of about 125 feet from him, that it was "cutting across"; that he "swerved to avoid the truck" and that "the left rear corner of the truck struck the right side of my car". He testified that he "applied the brakes immediately and swerved to the left to avoid hitting him". The evidence indicates that the cross-over used by Karrenbrock could be seen from the west upon the eastbound lanes at a distance of approximately 1100 feet.

Plaintiff's first contention here is that the trial court erred in failing to give his requested instruction No. 2 that the defendant was "* * * required to keep and maintain a constant, careful and vigilant watch and lookout ahead and laterally ahead * * *," and instead instructed the jury that the defendant was "* * * required to keep and maintain a careful and vigilant watch and lookout ahead and laterally ahead * * *." In other words, the objection goes to the failure to use the word "constant". We do not find that the omission of the word "constant" from the requested instruction to be material or to amount to a misstatement of the law or to have misguided the jury in any respect. Trial courts have always been free to use their own language in instructing a jury and may not be forced to adopt that of a requested instruction. If the jury is sufficiently charged as to the applicable law, that will suffice. Wright v. United States, 8 Cir., 1949, 175 F.2d 384, certiorari denied 338 U.S. 873, 70 S.Ct. 143, 94 L.Ed. 535; Frisina v. United States, 8 Cir., 1931, 49 F.2d 733; Luther v. Maple, 8 Cir., 1958, 250 F.2d 916. There was here no substantial difference between instructing the jury that it was the defendant's duty to keep and maintain a careful and vigilant watch and lookout ahead and laterally ahead and an instruction that the defendant was required "to keep and maintain a constant, careful and vigilant lookout ahead and laterally ahead * * *." What plaintiff seems to be trying to require is, from a practical standpoint, utterly impossible, as pointed out by the Supreme Court of Missouri in Hopkins v. Highland Dairy Farms Co., 1941, 348 Mo. 1158, 159 S.W.2d 254, 256:

"It would be physically impossible for the driver of a vehicle to look to the right, to the left and straight ahead all at the same time."

We find no error in the instruction.

Plaintiff also argues that there was no room for a "sole cause instruction" under the evidence in this case. The court instructed:

"You are instructed if you find and believe from the evidence that the defendant, Mr. Goldstein, was not negligent in the manner and particulars submitted to you in these instructions * * * and if you further find that as his automobile approached the point in the Highway where the collision occurred, William F. Karrenbrock was operating an automobile truck upon and across said Highway and if you find that Mr. Karrenbrock suddenly and without warning operated his automobile truck onto the westbound (sic) (eastbound) lanes of the Highway and in close and

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