Shields v. Keller

• Decision Date: 02 July 1941
• Citation: 153 S.W.2d 60,348 Mo. 326
• Parties: William Shields, Appellant, v. Gus Keller
• Court: Missouri Supreme Court

153 S.W.2d 60

348 Mo. 326

William Shields, Appellant, v. Gus Keller

Supreme Court of Missouri

July 2, 1941

Rehearing Denied July 25, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.

Reversed and remanded.

Everett Hullverson and Louis Yaffe for appellant Orville Richardson of counsel.

(1) The court erred in giving Instruction 5, because: (a) It failed correctly to define defendant's duty after plaintiff's peril became discoverable and made liability turn upon what defendant saw and did, rather than upon what he, by the exercise of the highest degree of care, could have seen or done. It therefore narrowed the zone of peril to discovered, rather than discoverable, danger, and made defendant the sole judge of whether or not he had acted negligently. Reiling v. Russell, 134 S.W.2d 33. (b) It assumed the material, controverted fact of whether there was a parked car at the curb at the place of the collision. The instruction also erroneously assumed that after plaintiff passed the parked car it was too late for defendant to avoid the accident, and it also ignored defendant's duty in the premises. Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234; Counts v. Thomas, 63 S.W.2d 416; Henglesberg v. Cushing, 51 S.W.2d 187; Kamer v. M.-K.-T. Ry. Co., 326 Mo. 792, 32 S.W.2d 1075; Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W.2d 144; Savage v. Chi., R. I. & Pac. Ry. Co., 328 Mo. 44, 40 S.W.2d 628; Kelso v. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527. (c) It lacked support in evidence. Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562. Compare instructions approved in above case and also: Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 469. (2) The court erred in giving Instruction 6, because: (a) It does not submit facts, but rather the conclusion of whether defendant exercised the highest degree of care, and is so broad as to be confusing and to give the jury a roving commission. Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Boland v. St. Louis-S. F. Ry. Co., 284 S.W. 141; Shumate v. Wells, 320 Mo. 536, 9 S.W.2d 632. (b) This instruction was not supported by the evidence, defendant admitting that he neither saw plaintiff nor applied his brakes nor swerved before the collision. (c) It erroneously limited defendant's duty to exercising care in the "operation" of his car and ignored defendant's duty of exercising the highest degree of care to discover plaintiff's peril after it arose. Reiling v. Russell, 134 S.W.2d 33. (3) The court erred in giving Instruction 8, because: (a) It failed to contain "a plain direction that contributory negligence is not to be considered in determining recovery under the humanitarian rule." McGrath v. Meyers, 341 Mo. 312, 107 S.W.2d 793; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Reiling v. Russell, 134 S.W.2d 33; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562. (b) It was confusing and misleading in that it informed the jury that defendant was entitled to a verdict if plaintiff's act of walking into the car (instead of "the collision") was not due to any negligence on the part of defendant. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W. 742; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 563. (c) It failed to specifically require a finding of facts which would conclusively show that defendant was not guilty of any negligence and which would negative every essential element of the humanitarian rule. McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 793. The mere fact that plaintiff may have walked into the side of the right front fender is equivocal and may or may not be consistent with defendant's liability. It alone was not a sufficiently determinative fact as conclusively to show that defendant was not guilty of any negligence and to negative every essential element of the humanitarian rule. Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327; Collins v. Leahy, 344 Mo. 250, 125 S.W.2d 874; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Reiling v. Russell, 134 S.W.2d 34; Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234. (d) It was not supported by any evidence. Collins v. Leahy, 344 Mo. 250, 125 S.W.2d 874; Crews v. K. C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. (4) The court erred in giving Instruction 7, because: (a) It imposed upon plaintiff the duty of exercising the highest degree of care, thus not only misdeclaring the law, but also injecting contributory negligence into the case. Mues v. Century Electric Co., 280 S.W. 412; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113. (b) It is misleading and confusing and contains more than any "obvious mistake" by referring to the care required of the "parties" to the suit. It is at least questionable whether or not the jury would correctly interpret the court's language, and the error is, therefore, fatal. Schipper v. Brashear Truck Co., 132 S.W.2d 993. (5) The court erred in excluding from evidence, over proper offer and exception of plaintiff, testimony of Dr. Sheen that the nature and character of plaintiff's injuries indicated that he had been hit on the left side by the front of an automobile and not that he had been injured by walking into its side. State v. Ring, 141 S.W.2d 57; State v. Fletcher, 190 S.W. 316; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22; State v. Hannebrink, 329 Mo. 254, 44 S.W.2d 142; Ganahl Lumber Co. v. Traveler's Indemnity Co., 133 S.W.2d 1050; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Jerome v. United Rys. Co., 155 Mo.App. 202, 134 S.W. 107; Young v. Dunlap, 195 Mo.App. 119, 190 S.W. 1041; Carroll v. Mo. Power & Light Co., 96 S.W.2d 1074; 22 C. J. 647-648, 664.

Leahy, Walther & Hecker and Fred A. Eppenberger for respondent.

(1) Instruction 5 was a valid and proper instruction under the evidence in the case, and has been approved by this court. Oliver v. Morgan, 73 S.W.2d 995; Borgestede v. Waldbauer, 337 Mo. 1205; Branson v. Abernathy Furn. Co., 344 Mo. 1171. (2) Instruction 6 was a valid and proper instruction under the evidence, and has been approved under a similar state of facts by this court. Doherty v. St. Louis Butter Co., 339 Mo. 996; Branson v. Abernathy Furn. Co., 344 Mo. 1171. (3) Instruction 7, defining due care as the highest degree of care, was a valid and proper instruction under the evidence and has been approved by this court. Doherty v. St. Louis Butter Co., 339 Mo. 996; Branson v. Abernathy Furn. Co., 344 Mo. 1171. (4) Instruction 8 was a valid and proper sole cause instruction under the evidence in the case, and an instruction approved by this court. Doherty v. St. Louis Butter Co., 339 Mo. 996; Borgstede v. Waldbauer, 337 Mo. 1205; Branson v. Abernathy Furn. Co., 344 Mo. 1171. (5) All instructions given must be read together. Schneider v. Dubinsky Realty Co., 127 S.W.2d 695; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941; Null v. Stewart, 78 S.W.2d 79. (6) The court properly excluded the evidence offered by the witness Dr. H. A. Sheen. Castanie v. United Ry. Co., 249 Mo. 195; Glasgow v. Railroad, 191 Mo. 347; O'Leary v. Scullin Steel Co., 303 Mo. 375.

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

OPINION

HYDE

This is an action for $ 25,000 damages for personal injuries. Plaintiff's case was submitted solely upon the humanitarian doctrine. The jury found for defendant. Plaintiff has appealed from the judgment entered.

Plaintiff assigns error in instructions. Plaintiff was injured while attempting to cross Market Street in St. Louis, carrying a bowl of food covered with a white paper, about 8 p.m., February 8, 1939. He testified that he attempted to cross from the north to the south side of the street (taking shorter steps than ordinarily to keep from spilling the food) at a place, where there was a lamp post and street light, straight across the street from the west side of 22nd Street going south. (22nd Street goes north from Market 80 feet farther east.) There was cobblestone pavement eight feet wide on the north side of Market Street; then there was smoother (cement) paving 22 1/2 feet wide between the south edge of the cobblestones and the north rails of the two street car tracks in the center of the street. Market Street was 76 feet wide from curb to curb. Plaintiff said when he "got out about seven feet south of the curb to the end of this cobblestone parking space" he waited for three or four cars to pass. He saw another car coming west 125 to 150 feet away. Thinking he had time to cross the street, he took two or three steps south, but seeing the car coming faster he stepped back closer to the edge of the cobblestones ("two feet out from the cobblestones") and stopped when the car was about 50 feet away. He said "when he got within about 15 feet . . . he just curved in all at once at an angle and the right front bumper hit my left leg." He said the car "was traveling forty-five or fifty miles an hour."

Defendant's testimony was that plaintiff was struck about 40 feet farther west than he stated; that he was driving "about eight or nine feet out from the curbstone;" that plaintiff "stepped out from in front of a parked automobile" and "suddenly appeared" by his right fender "moving toward the car;" and that the first time he saw plaintiff he was about six inches away from his car and about nine feet away from the curb. Defendant said "the parked automobile was just about three or four feet behind the point of impact." (Plaintiff denied there was a car parked at the place he crossed.) De...