Schlegel v. Knoll, 52973

• Decision Date: 13 May 1968
• Docket Number: No. 2,No. 52973,52973,2
• Citation: 427 S.W.2d 480
• Parties: Harold SCHLEGEL, Appellant, v. Thomas KNOLL, Respondent
• Court: Missouri Supreme Court

Page 480

427 S.W.2d 480

Harold SCHLEGEL, Appellant, v. Thomas KNOLL, Respondent.

No. 52973.

Supreme Court of Missouri, Division No. 2.

May 13, 1968.

Padberg & Raack, Godfrey P. Padberg, St. Louis, for appellant.

Evans & Dixon, Ralph C. Kleinschmidt, St. Louis, for respondent.

PRITCHARD, Commissioner.

The jury returned a verdict against plaintiff, a police officer, upon his $50,000 claim for personal injuries. Plaintiff was operating a three-wheeled motorcycle, called a tri-car, at the time of its collision with defendant's automobile. Plaintiff was leaving his former traffic control post and arrived at the 'Y' intersection of Channing Avenue (a northsouth street), Olive Street and Lindell Boulevard in St. Louis, Missouri. He was to proceed to his next post at the intersection of Kingshighway and Lindell, his route being westerly on the latter street. Lindell is, between Grand and Theresa avenues where the collision occurred, 66 feet wide and has three eastbound and three westbound lanes for travel, with additional parking lanes on each side.

President Johnson was visiting in St. Louis on that Valentine's day, February 14, 1964, and incident to that visit intensive security precautions were taken by the police department. Plaintiff's first assignment of duty was to direct traffic along the President's route at 18th and Market streets and ten minutes after the President passed that point plaintiff's orders required him to go to Kingshighway and Lindell to help direct traffic.

As plaintiff proceeded onto Lindell toward his second post, the traffic in the three westbound lanes at Theresa was completely clogged or stopped, according to his evidence. Defendant testified that although traffic was heavy it was moving slowly, being 'stop and start' because traffic was being let through the intersection with Grand Avenue to the west. There was then little eastbound traffic and plaintiff noticed those lanes were open. He then pulled into the inside eastbound lane and drove westerly at a speed of 20 to 25 miles per hour and at a distance of 2 to 3 feet from the center line and 3 or 4 feet from the westbound stopped cars (travelling about the center of the inside lane which was about 8 feet wide).

Defendant, intending to turn left into a Post Office parking lot on the south side of Lindell, pulled into plaintiff's path. Both tried to swerve, but they came into collision and plaintiff was injured.

Plaintiff claims prejudicial error was committed against him by the giving of Instruction No. 5:

'Your verdict must be for defendant whether or not defendant was negligent if you believe:

First, plaintiff either:

drove on the wrong side of the road, or failed to operate his vehicle a safe distance to the left of westbound traffic, or failed to sound his horn before starting to pass defendant's vehicle; and

Second, plaintiff's conduct in any one or more of the respects submitted in paragraph First, was negligent; and

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

(M.A.I. No. 28.01--Submitted by Defendant.)'

It is first said that the submission that plaintiff 'drove on the wrong side of the road' was prejudicially erroneous because under the facts of this case the eastbound lanes of travel were not the wrong side of the road for plaintiff; and the submission prevented a recovery by him under his theory that the submission did not allow for his being in the eastbound lanes of travel in a nonnegligent manner.

Plaintiff makes no claim here that he comes within any exemption of the statute upon emergency vehicles, § 304.022, RSMo 1959, V.A.M.S., in that his tri-car was a publicly owned police department vehicle, being operated by him with siren and red lights on, so that he might disregard regulations governing direction of movement or turning in specified directions or any other exemption of the statute. Plaintiff did not have his siren on (his instructions were not to sound it), but his red lights were on. Although plaintiff pleaded (by amendment to his petition) defendant's violation of said § 304.022 in failing to yield to plaintiff and failing to remain in a stopped position until plaintiff's vehicle had passed, his sole submission to the jury of defendant's negligence was a failure to keep a careful lookout (MAI 17.01).

Thus it is that plaintiff's conduct must be judged in connection with the applicable law without exception as to status of his vehicle. Annotation, 'Police Vehicle--Accident--Liability,' 83 A.L.R.2d 383, 397 et seq., §§ 5, 6. In this connection defendant read into evidence § 831.020, Paragraph 1 of the Revised Code of the City of St. Louis: 'All drivers shall: (1) Drive on the right half side of the street, roadway, alley or parkway and to the right of a divider or to the right of an official traffic line except on one-way streets.'

The further argument of plaintiff is that the submission in Instruction No. 5 made it impossible for him to recover under his theory of the case ('that, although westbound in the eastbound lanes of travel, under the circumstances, this was not the 'wrong side of the road' and, further, that he went onto that side of the road in a deliberate fashion and in a non-negligent manner') for the jury could believe all of plaintiff's evidence, yet be forced to find in favor of defendant under plaintiff's own theory of the case.

It is difficult to conceive of just what reference Instruction No. 5 should have made to plaintiff's actions in driving onto the wrong side of the road if plaintiff's theory is correct. The situation is not analogous to the skidding cases (mere skidding 'is not negligence and does not give rise to an inference of negligence,' Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59, 63). The ultimate facts bearing on negligence are all that must be included in instructions under MAI. The case of Evans v. Colombo, Mo.App., 311 S.W.2d 141, had in it an omission of the finding of the reason for crossing over the center line 'regardless of the reason for the crossing, whether excusable or inexcusable, without any consideration of the manner in which the crossing occurred (while skidding) and without requiring the finding of any negligent act on the part of defendant which caused the skidding-crossing.' Loc. cit. 311 S.W.2d 146. The present case is not one of skidding, where under the cases that act may come about without negligence (and which are in a class by themselves), but is one where plaintiff deliberately drove his tri-car onto the eastbound lanes, being the wrong side of the road for him under the ordinance. Under all of the facts and circumstances, and considering the necessities of the case, it was for the jury to determine whether plaintiff did proceed onto the wrong side of the road in a negligent or nonnegligent manner. 'Ordinarily, however, proof of the driving of a car onto the wrong side of the highway and into collision makes a submissible case of negligence.' Zeigenbein v. Thornsberry, Mo.,401 S.W.2d 389, 394(8). The evidence of violation of the ordinance as negligence may be rebutted by facts showing justification or excuse, Harris v. Hughes, Mo.App., 266 S.W.2d 763, 770(9, 11); and see 65A C.J.S. Negligence § 204, p. 448 et seq. Instruction No. 5, in submitting that plaintiff was on the wrong side of the road, and requiring the finding that he was thereby negligent, rightfully follows MAI. It does not deprive plaintiff of his theory of the case. He was entitled to argue to the jury that Instruction No. 5 should not be applicable to him by reason of his being on the wrong side of the road. That argument could be based upon the evidence of plaintiff of justification or excuse which tended to show that the traffic was clogged or stopped in the westbound lanes; that he had to reach his second traffic control assignment quicky; that the eastbound lanes were clear, or practically clear, of traffic; and that other officers had preceded plaintiff in the use of the eastbound lanes. On the other hand, there was evidence supporting the submission of Instruction No. 5 of plaintiff's contributory negligence in driving onto the wrong side of the road. Defendant's evidence is that although the westbound traffic was heavy, it was moving slowly, being let through the...