Schroeder v. Rawlings

• Citation: 155 S.W.2d 189,348 Mo. 824
• Decision Date: 30 October 1941
• Docket Number: 37630
• Parties: Joseph C. Schroeder, Appellant, v. Ella G. Rawlings, Administratrix of the Estate of Virgil E. Rawlings
• Court: Missouri Supreme Court

155 S.W.2d 189

348 Mo. 824

Joseph C. Schroeder, Appellant, v. Ella G. Rawlings, Administratrix of the Estate of Virgil E. Rawlings

No. 37630

Supreme Court of Missouri

October 30, 1941

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Affirmed.

Ford W Thompson for appellant.

(1) Under a plea of a general denial, the defendant might properly attempt to prove that the accident took place without any contributing neglect of defendant, and was in no manner caused by defendant's neglecting any duty owed to plaintiff, but was caused solely by an outside third party. Bragg v. Met. Street Ry., 192 Mo. 331; Kaumsky v. Tuder Iron Works, 167 Mo. 462; Geisendorf v Brashear Truck Co., 54 S.W.2d 72; Borgstede v. Waldbauer, 88 S.W.2d 373. (2) A tort-feasor is answerable for all the consequences, that in the natural course of events flow from his unlawful acts, although those are brought about by the intervening agency of others, provided the intervening agents were set in motion by the primary wrongdoer, or were the natural consequences of his original act. 1 Cooley on Torts (4 Ed.), sec. 50, pp. 108-126.

Clark M. Clifford for respondent.

(1) Trial court did not err in giving Instruction 3, submitting plaintiff's contributory negligence to the jury. (a) A general plea of contributory negligence, such as was contained in defendant's answer, is a sufficient plea if not attacked by plaintiff by motion to make more definite and certain. Watts v. Moussette, 85 S.W.2d 487. (b) There is ample evidence in the record to sustain the submission of the question as to whether plaintiff exercised the highest degree of care to keep a lookout ahead. (2) Trial court did not err in giving Instruction 4, which told the jury to return a verdict for defendant if the collision of the Cadillac car and plaintiff's car was the sole cause of plaintiff's injuries and was not due to any negligence of defendant in any particulars set out in the other instructions. (a) Under a plea of general denial defendant may introduce proof that the plaintiff's injuries were caused by the act of a third party and an instruction on this theory of defense is properly given. Geisendorf v. Brashear Truck Co., 54 S.W.2d 72; Bragg v. Met. Street Ry. Co., 91 S.W. 527. (b) The form of Instruction 4 has been specifically approved by the Supreme Court of Missouri. Doherty v. St. Louis Butter Co., 98 S.W.2d 742. (c) There is ample evidence in the record to sustain the submission of the question as to whether the plaintiff's injuries were caused solely by the act of a third party. (d) An appellant cannot predicate error on the giving of an instruction which appellant claims is confusing and misleading, where, as here, appellant did not request the trial court to give an instruction that cured the claimed misleading features of the challenged instruction. Nelson v. Heinz Stove Co., 8 S.W.2d 918; Maloney v. United Rys. Co., 237 S.W. 509. (3) Instructions 3 and 4 have, in effect, already been approved by this court because they were attacked by the plaintiff in the previous appeal of this case, at which time this court refused to hold that they were improperly given. Schroeder v. Rawlings, 127 S.W.2d 678.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for $ 10,000 damages for personal injuries. Verdict and judgment were for defendant and plaintiff has appealed.

This is the second appeal in this case. At the first trial, the jury likewise found for defendant. The trial court granted plaintiff a new trial from which defendant appealed. We held that the new trial was properly granted because of error in instructions. [Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678.] Plaintiff seeks reversal herein on error in instructions. The evidence was substantially the same as stated in our former opinion, much of the evidence coming from the transcript of that trial. Plaintiff's version was that he was driving east (downgrade) on Oakland Boulevard about twenty feet behind the car of the original defendant Virgil E. Rawlings (herein called defendant), and that a Cadillac car (driven by a Mr. Robinson) was following about twenty feet behind his car. All three cars were traveling about twenty miles per hour. In the middle of a block, plaintiff saw the stop light on defendant's car indicate slowing speed, and immediately give a hand signal for a stop to the car following him. Defendant's car stopped suddenly (in about ten feet after plaintiff saw the light signal) and plaintiff was able to stop his car so that it only very lightly touched the rear end of defendant's car. Almost at the time plaintiff stopped his car, the Cadillac crashed into it from behind and plaintiff then sustained injuries. Plaintiff said there was a car parked at the south curb and that a city street flushing truck was approaching on the north side of the road so that he could not swerve either way. Plaintiff also said that defendant told him he stopped because his car had just been washed and he did not want to get it dirty, from water splashing on it. Defendant's version was that plaintiff's car followed seventy feet behind his; that he took about forty feet in which to stop his car after putting on the brake; that first he tried to signal to the driver of the flushing truck to cut off the water (waving through the side window) before he applied his brakes; and that about two seconds after he stopped there was a light contact from the rear and "two seconds later a heavy contact."

Plaintiff's theory of the negligence submitted in his main instruction was that defendant stopped his car suddenly without giving reasonable warning of his intention to stop (our former opinion held the refusal of the trial court to submit this theory, at the first trial, to be error warranting the granting of a new trial); and "that on account of the stop required of the plaintiff, and directly due to such action of defendant ahead of him," the Cadillac following plaintiff "crashed into plaintiff's car . . . without the fault of the said driver of said following car;" and that "as a direct result thereof (of defendant's failure to stop "in a careful and prudent manner") said following automobile crashed into plaintiff's automobile and plaintiff suffered an injury therefrom."

Defendant submitted, as a defense, instruction No. 3 on contributory negligence of plaintiff in failing to keep a lookout ahead. Plaintiff assigns error in giving this instruction. However, this is not before us for review because it was not mentioned in plaintiff's motion for new trial.

Plaintiff's remaining assignment of error (which was the only ground stated in his motion for new trial) is in giving defendant's instruction No. 4, as follows:

"The Court instructs the jury, that if you believe and find from the evidence, that on the occasion mentioned in the evidence a Cadillac car collided with the rear end of the automobile driven by plaintiff, and if you further believe and find from the evidence that the collision between the said...