Pulley v. Scott
| Decision Date | 14 April 1952 |
| Docket Number | No. 42645,No. 2,42645,2 |
| Citation | 247 S.W.2d 767,362 Mo. 1217 |
| Parties | PULLEY v. SCOTT |
| Court | Missouri Supreme Court |
Ward & Reeves, Caruthersvill, Finch & Finch, Cape Girardeau, for appellant.
Web A. Welker, Portageville, for respondent.
WESTHUES, Commissioner.
Plaintiff brought this suit to recover $20,000 as damages for personal injuries alleged to have been sustained through the negligence of the defendant. There was a verdict for the defendant. Plaintiff's motion for a new trial was sustained by the trial court. The grounds assigned by the court were errors in instructions 4, 5, and 6 given at defendant's request. From the order the defendant appealed.
The evidence showed the following to have occurred: At about eleven o'clock on the night of October 1, 1949, plaintiff was walking south on U.S. Highway 61 about a mile or so south of Portageville, Missouri. He was on his way home which was about three miles southwest of Hayti, Missouri. He testified that a car approached from the north and On further examination his testimony was as follows:
'
'
Plaintiff explained that what he meant by 'my light went out' was that he was rendered unconscious when he was struck by a car going south as he was trying to catch up with the car he had 'thumbed' which he thought was stopping to let him ride. The evidence was that the roadway was dry and the weather clear.
It was admitted that it was defendant's car which collided with plaintiff. The defendant testified that as he was driving south at the point in question, a car with bright lights was approaching from the south; that he (the defendant) was driving at about 35 miles per hour; that he did not see plaintiff until he was about 8 or 10 feet away from him; that he then swerved to the left in an attempt to miss him. Note a portion of defendant's evidence:
'
Defendant further testified that when traveling at 35 miles per hour, he could stop within 15 to 20 feet. He admitted that he stopped within 75 or 80 feet.
The case was submitted to a jury solely on the humanitarian doctrine. The defendant urges that the evidence was insufficient to justify a submission of the case to a jury. The defendant cited a number of cases in support of his contention. We need notice only one of them, Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33. In that case this court en banc said, 220 S.W.2d loc. cit. 34: 'a defendant is liable for injuring a plaintiff if he sees him (or, where defendant is under a duty to keep a vigilant watch, should see him) in a position of imminent peril, in time, by the exercise of due care and with safety to himself and others, to avert the injury.'
A jury in the present case could well have found that the defendant should have discovered plaintiff 'trotting' down the highway in time to have averted injuring him. The point must be ruled against the defendant.
Instruction 6, on the burden of proof, the giving of which was deemed to be erroneous by the trial court, reads as follows:
'The Court instructs the jury that the charge laid by the plaintiff against the defendant in this case is one of negligence. Recovery may not be had on a charge of negligence except when such charge is sustained by the preponderance, that is, the greater weight of the credible evidence to the reasonable satisfaction of the jury.
'It does not devolve upon the defendant to disprove said charge, but rather the law casts the burden of proof in reference to said charge upon plaintiff and said charge of negligence must be sustained by the preponderance, that is, the greater weight of the credible evidence to the reasonable satisfaction of the jury. If, therefore, you find the evidence touching the charge of negligence against the defendant (,) 'as submitted in these instructions'(,) does not preponderate in favor of the plaintiff, or is evenly balanced, then, in either event, plaintiff is not entitled to recover against the defendant and your verdict must be in favor of the defendant.'
The giving of instructions containing such a phrase as 'reasonable satisfaction' has been criticised by this court as casting a greater burden on a plaintiff than required by law. Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W.2d 58, loc. cit. 63(12); Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, loc. cit. 694-696(5); Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467, loc. cit. 472(8); Seago v. New York Central R. Co., 349 Mo. 1249, 164 S.W.2d 336, loc. cit. 340, 341(5, 6)(7, 8), 147 A.L.R. 372.
In the Seago case, supra, Division I of this court said: 'What we have said of this...
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