Pogue v. Rosegrant
| Decision Date | 23 April 1936 |
| Docket Number | No. 33600.,33600. |
| Citation | 98 S.W.2d 528 |
| Parties | POGUE v. ROSEGRANT. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.
Action by Ostos Pogue against Vincent Rosegrant. From a judgment in favor of the plaintiff, the defendant appeals.
Affirmed on condition of remittitur.
Walter Wehrle, of Clayton, and T. J. Crowder, of St. Louis, for appellant.
William R. Schneider, of St. Louis, for respondent.
Action to recover damages for alleged personal injuries and damages to plaintiff's automobile. The petition is in two counts. The verdict was for $8,020 actual and $1,000 punitive damages on the first count for the alleged personal injuries, and for $300 on the second count for damages to his automobile. Judgment was entered on the verdict, and defendant appealed.
The alleged injuries were caused by a collision between plaintiff's automobile and defendant's truck at the intersection of Maple avenue and Leona street in University City. A detailed statement of the facts is not necessary to a determination of the questions raised.
Appellant first contends that the court erred in giving plaintiff's instruction No. 1.
The first complaint against the instruction is that it did not require a finding that plaintiff's injuries were the direct and proximate result of the negligence complained of, and did not restrict the finding to the injuries pleaded and proved.
Boiled down, the instruction requires the jury to find and believe from the evidence (1) that there was a collision between plaintiff's and defendant's automobile; (2) that plaintiff was injured in said collision; and (3) that defendant by the exercise of the highest degree of care could have avoided the collision and injury to plaintiff by the means hypothesized in the instruction.
The argument made in support of the first criticism of the instruction is that defendant offered evidence tending to show that immediately prior to the collision between the two automobiles plaintiff's car struck a telephone post, and "If it was true, plaintiff doubtless received some part, if not all, of his injuries as a result of the collision of his car with the post and such injuries as he so sustained would not be the proximate result of the collision of the two cars, and the instruction in this respect should have limited the injuries to such as were sustained as the proximate result of the car collision, and not entirely ignore the collision of plaintiff's car with the post."
A complete answer to defendant's argument is that the instruction does, in express words, limit the injuries to those received in the collision between the two automobiles. It requires a finding that the two cars collided, and that plaintiff was injured in said collision.
Further argument is made that the instruction under review is broader than the pleadings and proof, in that it did not restrict the finding to the injuries pleaded and proved.
No claim is made that plaintiff did not make a case for the jury on the question of injuries. Neither is it claimed that the evidence as to plaintiff's injuries went beyond the injuries pleaded in the petition. In this situation, the requirement in the instruction that the jury find and believe from the evidence that plaintiff was injured in said collision was within both the pleadings and proof. Of course an instruction must keep within the pleaded issues, but it must not refer the jury to the pleadings for the issues. An instruction should refer the jury to the evidence and not to the pleadings, and require a finding from the evidence of the facts hypothesized in the instruction. That is what the instruction under consideration did. We therefore rule this contention against appellant.
It is next claimed that the instruction erroneously assumed that plaintiff was in a position of peril.
The part of the instruction criticized reads as follows: "If you further find that defendant * * * saw or by the exercise of the highest degree of care could have seen the automobile which plaintiff, Pogue, was then and there operating along and over the intersection of said Leona and Maple Avenue and in a position of imminent peril of being struck, * * * and if you so find, and if you further find. * * *"
It will be noted that the criticized portion of the instruction begins with the words "If you further find," then hypothesizes certain facts, and concludes with the words "and if you so find." Such an instruction does not assume anything, but requires all the hypothesized facts to be found by the jury. In Lewis v. Illinois Cent. R. Co., 50 S.W.(2d) 122, 125, we said: "Where an instruction commences `If you find and believe from the evidence,' and then, after stating certain facts, even in a way which seems to assume them, if the instruction follows this recital with the requirement `if you so find,' a finding of those facts is required by the jury"—citing cases.
See, also, Dohring v. Kansas City (Mo. Sup.) 81 S.W.(2d) 943, 948; Dodson v. Gate City Oil Company (Mo.Sup.) 88 S.W. (2d) 866, 873, 874.
It is next contended that the instruction is erroneous, in that it authorized the jury to convict defendant of negligence, even though he could not have avoided the collision with safety to other persons.
Maple avenue, upon which defendant was driving, runs east and west, and Leona street, upon which plaintiff was driving, runs north and south. Plaintiff's evidence shows that he had almost crossed the intersection when defendant's truck struck the right rear wheel of his car, at the southwest corner of the intersection. According to defendant's evidence plaintiff swerved his car in order to cut in ahead of defendant, and the collision occurred at the southeast corner of the intersection. Both parties agree that defendant's truck struck the right rear wheel of plaintiff's car. Plaintiff testified that there were no other persons or automobiles at the scene of the collision. Defendant testified that witness Hammett had stopped a bread truck across the street at the northeast corner of the intersection. Maple Avenue is 36 feet wide. Remembering that plaintiff's evidence is that there were no other persons or automobiles at or near the scene of the collision at the time it occurred, and taking defendant's evidence as true that witness Hammett had stopped his truck across the street at the northeast corner of the intersection, then it must follow that there was no substantial evidence tending to show that witness Hammett sitting in his bread truck at the northeast corner of the intersection would have been imperiled by defendant swerving his car to avoid striking plaintiff's car, because under defendant's own evidence the width of that part of Maple avenue between plaintiff's and the witness Hammett's car was unobstructed, they being located at opposite corners of the intersection. There is another reason why the instruction was not prejudicially erroneous. The instruction did not require a finding that defendant could have avoided the collision by the means and in the manner hypothesized in the instruction, with safety to others. It did, however, require a finding that he could have avoided the collision with safety to himself and his said motortruck, "which necessarily included a finding that he could have done so without colliding with the parked cars, because otherwise he could not have done so with safety to himself and his car." Hein v. Peabody Coal Co., 337 Mo. 626, 85 S.W.(2d) 604, 611.
Further contention is made that instruction No. 1 was erroneous in that it authorized a verdict for plaintiff if defendant failed to sound a warning of his approach, for the reason that plaintiff admitted he saw defendant's truck approaching in time to have avoided driving his automobile into a place of danger.
There were obstructions on either side of Leona street which prevented plaintiff from seeing automobiles approaching on Maple avenue until he reached the intersection. Plaintiff testified that, when he had passed the obstructions and the front end of his car was 2 or 3 feet out in the intersection he stopped his car, looked to the west, and saw the lights on defendant's truck 250 feet from the intersection; that it was dark and he could not see defendant's truck but could see its headlights; that he paid no further attention to the truck, shifted his automobile into second gear and started on across the intersection; started his car from a standstill and increased its speed across the intersection until he was going about 10 miles per hour when he reached the south side of the intersection where the collision occurred. The evidence of both parties shows that one coming from the west on Maple avenue, as defendant was, could have seen plaintiff's car the moment it came from behind the embankment and entered the intersection.
Concerning the question of warning, the law is that defendant owed no duty to warn plaintiff until he saw, or by the exercise of ordinary care could have seen, that plaintiff was in or about to enter a position of imminent peril and was oblivious of the impending danger. The fact that plaintiff stopped his car when the front end was 3 or 4 feet in the intersection where defendant could have seen it, then started it again and increased his speed as he crossed the intersection, tends to show that he intended to cross the intersection and was oblivious of any danger in so doing. While he knew...
To continue reading
Request your trial
-
State of Missouri v. Hammett
...25 S.W. 2d 491, 497; Dohring v. Kansas City, 81 S.W. 2d 943; Counts v. Coca Cola Bottling Co. of St. Louis, 149 S.W. 2d 418; Pogue v. Rosegrant, 98 S.W. 2d 528; Greer v. St. Louis Public Service Company, 87 S.W. 2d 240; Lewis v. Zagata. 166 S.W. 2d 541; Wheeler v. Breeding, 109 S.W. 2d 1237......
-
Gould v. M.F.A. Mut. Ins. Co.
...Central Coal & Coke Co., 320 Mo. 1130, 9 S.W.2d 596, 598(2).17 Lewis v. Illinois Cent. R. Co., Mo., 50 S.W.2d 122, 125; Pogue v. Rosegrant, Mo., 98 S.W.2d 528, 530(4); Henson v. Jasinsky, Mo., 251 S.W.2d 601, 604-605(4); Cox v. Consolidated Cabs, Mo.App., 290 S.W.2d 658, 661(4). See also Wi......
-
State ex rel. Nelson v. Hammett
...25 S.W. 2d 491, 497; Dohring v. Kansas City, 81 S.W. 2d 943; Counts v. Coca Cola Bottling Co. of St. Louis, 149 S.W. 2d 418; Pogue v. Rosegrant, 98 S.W. 2d 528; Greer v. St. Louis Public Service Company, 87 2d 240; Lewis v. Zagata. 166 S.W. 2d 541; Wheeler v. Breeding, 109 S.W. 2d 1237; Cla......
-
Wilcox v. Swenson
...a fact and concluding with 'if you so find' do not assume the fact to be found. Henson v. Jasinsky, Mo., 251 S.W.2d 601; Pogue v. Rosegrant, Mo., 98 S.W.2d 528. Some acts are so simple and out of the ordinary that a statement of the ultimate facts is about as specific as need be. The facts ......