Ryan v. Burrow

• Decision Date: 20 December 1930
• Parties: James Ryan, Jr., v. Hazel Burrow and Visiting Nurses Association of St. Louis, Appellants
• Court: Missouri Supreme Court

33 S.W.2d 928

326 Mo. 896

James Ryan, Jr., v. Hazel Burrow and Visiting Nurses Association of St. Louis, Appellants

Supreme Court of Missouri

December 20, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Affirmed and remanded.

Wilbur C. Schwartz for appellants.

Instruction 4, given by the court at the request of the defendants, is a correct declaration of law and is not erroneous, and the court erred in sustaining plaintiff's motion for new trial on the ground that the court erred in giving said instruction. Said instruction announces the following correct principles of law: (a) That it was the duty of the jury to first determine the question as to whether the defendants are liable; (b) That in deciding the question of liability the jury should not consider the nature, character or extent of plaintiff's injuries. This is correct in this case because the nature, character or extent of plaintiff's injuries do not constitute a link in the chain of circumstances tending to prove negligence on the part of the defendants under the facts. Manthey v. Contracting Co., 227 S.W. 933.

Earl M. Pirkey and Milton F. Napier for respondent.

Instruction 4 has been condemned by this court as an incorrect instruction, justifying a reversal. Unterlachner v. Wells, 278 S.W. 79; Stolovey v Fleming, 8 S.W.2d 832; Temple v. Samuel Cupples Env. Co., 300 S.W. 265. Therefore the trial court properly granted a new trial.

Cooley, C. Davis, C., concurs; Westhues, C., not sitting.

OPINION

COOLEY

This case is here on the appeal of defendants from an order of the Circuit Court of the City of St. Louis sustaining plaintiff's motion for new trial after a verdict in favor of defendants. The trial court sustained plaintiff's said motion on the ground, stated in the record, that the court had erred in giving defendants' instruction numbered 4, hereinafter set out, and that ruling is the only question presented for review on this appeal. The amount involved, $ 25,000, gives us jurisdiction.

The suit was for personal injuries sustained by plaintiff in a collision between an automobile which plaintiff was driving and one being driven by defendant Hazel Burrow. Miss Burrow was an employee of her co-defendant and at the time was upon business of her employer. Plaintiff was a deputy constable and at the time of the accident was pursuing another automobile in which he thought were stolen articles. The collision occurred on an east-and-west paved highway known as Clayton Road in St. Louis County. Plaintiff was going west, driving rapidly. Miss Burrow was going east. She had come up behind a heavily loaded truck which was proceeding slowly eastward and she had pulled out, or started to pull out, to her left to pass the truck. The paved part of the highway was about twenty feet wide and the truck occupied practically the south half thereof. At the time Miss Burrow started to pass the truck a westbound Ford car was stopping or had stopped on the north part of the pavement about opposite, perhaps slightly behind, the then position of the truck. Plaintiff had intended passing between that car and the truck, but when he discovered Miss Burrow's car emerging from behind the truck as she turned out to pass it, he realized that he could not do so without striking her car head on and he tried to stop, but was unable to do so in time to avoid the collision.

The testimony was conflicting as to how plaintiff's and Miss Burrow's cars struck each other. Plaintiff contended that Miss Burrow's car "ducked out right behind the truck diagonally across the road," and that the left front "corner" of it struck plaintiff's left front wheel, breaking it off, "and came right in through the door on the driver's side of the car." Miss Burrow testified that at the moment of collision she had already drawn up alongside the truck and that plaintiff attempted to swerve to his right and thereby broke his wheel and caused his car to tip over, and that as it tipped the rear part of plaintiff's car struck the left front part and fender of her car, but that the front of her car did not crash into or through the door of plaintiff's car.

Among plaintiff's injuries, which were severe, were a serious contusion on the left side of his head back of the ear, and two fractures of the skull on the left side of the head.

Instruction No. 4, given for defendants, was as follows:

"The court instructs the jury, that in considering the evidence, deliberating upon, and determining the facts in this case, it is your duty, first to decide upon the question as to whether under all the facts and circumstances in the evidence, there is, or is not, any liability on the part of the defendant, Hazel Burrow, in operating the automobile mentioned in the evidence as defined to you by these instructions.

"Until this question of liability has been determined by you, you have no right to take into consideration the nature, character or extent of the alleged injuries to the plaintiff, of the amount, if any, that the plaintiff is entitled to recover by reason of such injuries, if any. If the plaintiff is not entitled to recover, that is, if he has not shown to your reasonable satisfaction, by the greater weight of the creditable testimony upon the question of liability, that he should recover at your hands, then you should not and must not in your deliberation, consider to what extent, if any, he has been injured. You should not be influenced by the nature and extent of plaintiff's injuries in deciding whether or not defendants are liable for said injuries as explained to you in these instructions. Neither passion, prejudice or sympathy should influence you in any manner in deciding this case, for it is your sworn duty to try this case and decide it according to the evidence and the instructions."

Appellants to sustain said instruction, cite two cases, Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S.W. 927, and Aronovitz v. Arky (Mo.), 219 S.W. 620. Neither deals with an instruction similar to this. In ...