Ryan v. Manheimer

• Decision Date: 31 December 1968
• Docket Number: No. 53469,No. 2,53469,2
• Citation: 435 S.W.2d 366
• Parties: Ray RYAN, Respondent, v. Ben P. MANHEIMER, Appellant
• Court: Missouri Supreme Court

Page 366

435 S.W.2d 366

Ray RYAN, Respondent, v. Ben P. MANHEIMER, Appellant.

No. 53469.

Supreme Court of Missouri, Division No. 2.

Dec. 31, 1968.

Mogab, Hughes & Green, by Frank B. Green, Jr., St. Louis, for respondent.

Evans & Dixon, Eugene K. Buckley, St. Louis, for appellant.

EAGER, Judge.

This appeal is from an order granting plaintiff a new trial in a suit for personal injuries. There was a nine-man verdict for the defendant. While the subject will need some further elaboration, the motion was sustained upon the grounds that the evidence did not support a contributory negligence instruction, and that the instruction as given was erroneous. This action of the trial court necessitates a rather detailed review of the evidence.

Plaintiff, 55 years old at trial, had been a service manager at Castles-Wilson Buick in St. Louis for fifteen years and employed there for thirty-five years. On October 8, 1965. Defendant Ben P. Manheimer brought in a 1965 Buick car which was about two months old, complaining of a rattle. Plaintiff got into the car and drove it from the service garage, with defendant riding on the right side of the front seat; they proceeded first on McPherson Avenue, and then into a north-south alley which was rather rough; this alley was frequently used for the discovery of rattles. Plaintiff soon heard the rattle and thought he had located it; he then turned the car to the right into another alley (east-west) which formed a 'T' with the first alley there. He stopped the car, headed east, at a point which he estimated to be 40--60 feet from the wall of a brick building on the far (west) side of the first alley. The defendant later estimated the distance as about 20 feet. Plaintiff then told defendant that he thought he knew what the rattle was and that he (defendant) should drive while plaintiff sat in the back seat to locate it. Plaintiff did get out of the driver's seat, claimbed into the back and sat down; defendant moved over under the wheel. While plaintiff was 'feeling around' in the upper left rear corner for what he thought was a broken weld, the car began to move backwards. He called out to defendant,--'Hey, you're in reverse. Step on the brake'; at about that same time the car speeded up materially, and plaintiff, as best he recalled, tried to reach over the back of the seat to grab the ignition key because he suspected that defendant had frozen at the wheel. In this he did not succeed. He felt no braking action at any time. The next thing he remembered was that someone was getting him out of the car. The rear of the car had struck the brick wall of a church on the west side of the first alley, and a photograph shows rather material damage to the left rear corner of the car. Plaintiff suffered substantial injuries, but our issues do not require any discussion of that feature. The evidence also showed: that the car was equipped with an automatic transmission and presumably with air conditioning and power brakes; that the gearshift lever was on the steering wheel and the notations on the indicator, running horizontally from left to right, were: P(park); R(reverse); N(neutral); D(drive); and L(low); that normally a car with air conditioning is set to idle a little faster (600 RPM as compared with 500) than one without it, and that such a car might 'creep' if left in gear with all brakes released; that this car, however, moved backward at a speed much faster than any such creeping or idling movement.

We are concerned here only with the giving of the contributory negligence instruction, No. 4, and our discussion of the evidence will be limited to that subject. Defendant has not questioned the submissibility of plaintiff's case. That instruction was as follows: 'Your verdict must be for defendant whether or not defendant was negligent if you believe:

'First, plaintiff failed to check the gear indicator of the automobile to make certain it was in park of neutral gear before turning over the operation of the automobile to defendant when he knew or in the exercise of ordinary care could have known that the automobile, if left in gear, would move if the brake was released or accelerator depressed, and knew or in the exercise of ordinary care could have known, that in that event, there was a reasonable likelihood of collision; and

'Second, plaintiff was thereby negligent; and

'Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.

'The term 'negligence' as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.

'(M.A.I. 28.01 Modified & 11.02(1)--Offered by defendant.)'

Defendant's testimony was introduced by deposition. It was most unclear as to what really did happen. He thus testified (in places somewhat inconsistently): that he got behind the wheel and intended to drive on east; that he assumed that he released the brake; that his impression was that the emergency brake was on; that he did not know whether he put 'it' in gear or not; that he did not recall what he did; that he did not step on the accelerator; that he didn't 'touch anything at all' that he knew of; that he may have touched the brake, but didn't touch the accelerator; that he did not look at the gear indicator; that he did not remember whether he placed his hand on the gearshift lever; that he did not remember whether he touched the brake or the accelerator before plaintiff yelled; that the car had moved backward before plaintiff yelled; that he did not know how fast the car moved; that plaintiff yelled 'stop it,' but 'everything happened at one time'; that he did not recall doing anything after the car started to move, including any application of the brake or stepping on the accelerator; that he did not know what caused the car to move and had 'no knowledge'; that he did not know whether he made any effort to apply either the foot or emergency brake after the car started to move.

Plaintiff testified, on at least three separate occasions, that he put the gears in 'Park' when he stopped the car and before he got out; that he did not remember looking at the indicator to see that it was in 'Park' because that is a 'more or less automatic thing'; that he did not remember whether he put the emergency brake on; that if he had left the car in a gear, such as reverse, without the brake on, it would have been 'creeping,' and he would not have been able to get out and in as he did. He admitted that he made a mistake in his deposition in stating that the arrangement of gears was P-N-R-D-L; he further testified, at trial, that there is no car with such an arrangement, and that he 'was just mistaken.' He also testified: that he did not watch what plaintiff did, as he was feeling around for a broken weld; that a creep of the car from the idling would not have alarmed him, but that this car soon moved much faster.

As already indicated, the only issue on this appeal is the propriety of giving In...