Sorrell v. Hudson

• Decision Date: 09 May 1960
• Docket Number: No. 2,No. 47554,47554,2
• Parties: Barbara SORRELL, by next friend, Sherman Sorrell, Appellant. v. Marilyn H. HUDSON, Respondent
• Court: Missouri Supreme Court

Page 1

335 S.W.2d 1

Barbara SORRELL, by next friend, Sherman Sorrell, Appellant. v. Marilyn H. HUDSON, Respondent.

No. 47554.

Supreme Court of Missouri, Division No. 2.

May 9, 1960.

Rubins, Kase & Rubins, Arthur J. Kase, Kansas City, for appellant.

Alder & Morrison, John J. Alder, Wiley W. Morrison, William B. Miller, Kansas City, for respondent.

BOHLING, Commissioner.

Barbara Sorrell, by her next friend Sherman Sorrell, her husband, sued Marilyn Hudson for $10,000 damages for injuries received in an intersectional automobile collision. The verdict was for the defendant. Plaintiff appeals and contends the court erred in giving an instruction on behalf of defendant and in excluding a certain ordinance offered in evidence by plaintiff.

The collision occurred about 8:20 a. m. April 8, 1957, at the intersection of Bell and 38th streets in Kansas City. Plaintiff was about 18 and her husband was about 22 years old. They had lived in Kansas City for two or three months. Bell is a northsouth street, 28 feet wide, and 38th is an east-west street, 26 feet wide. Each is a two-way street. The intersection is not controlled by any traffic signals or signs. At uncontrolled intersections the city speed limit was 20 miles an hour. The curbs of both streets fanned out, widened and extended back several feet beyond a projection of their respective between-street curb lines at each corner of the intersection. See Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575, 579. The automobiles involved were Ford passenger cars, about 6 feet wide and 18 feet long.

Plaintiff and her husband were southbound on Bell. Defendant was eastbound on 38th. Plaintiff was looking at a map and did not see defendant's car until the collision. It is downgrade on Bell as one proceeds south to 38th street, and cars parked at the west curb of Bell, a terrace, a hedge and a house at the northwest corner obstructed the view of the drivers. This review is presented on the theory the speed of each car was 20 m. p. h., although there was testimony that Mr. Sorrell entered the intersection at 25 to 30 m. p. h. Mr. Sorrell testified that he looked in both directions as he approached the intersection; that he did not see defendant's car until he was 10 feet in the intersection; that defendant's car was about 20 feet west of the intersection; that, believing if he tried to stop he would stop in the path of defendant's car, he speeded up to get across and out of the intersection and did not brake or swerve his car. Defendant was to the right of the Sorrell car. She testified that she first saw the Sorrell car, coming down the center of Bell street, when she was about 3 feet west and it was about 3 feet north of the intersection; that she immediately applied her brakes and swerved to the left but the extreme right front of her car struck the right rear, back of the tire, of the Sorrell car, turning it around in a clockwise turn; that she had reduced her speed to 5 or 7 m. p. h., and that her car stopped with the impact, headed northeast, in the northeast quadrant of the intersection.

Plaintiff questions defendant's sole cause instruction, being instruction No. 5, on the grounds (1st) the instruction misdirected the jury by reason of the use of the word 'approach' instead of the word 'enter' in the paragraph hereinafter quoted and (2nd) failed to inform the jury that plaintiff's driver's negligence could not be imputed to plaintiff.

The instruction first informed the jury that drivers of automobiles upon public streets are required to exercise the highest degree of care. Then followed the questioned paragraph, reading:

'You are further instructed that under the law of Missouri, when two motor vehicles approach an uncontrolled intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the driver of the vehicle on the right.' (Emphasis supplied.)

The 'fact finding' portion of the instruction immediately followed and required the jury to find that plaintiff's driver (1) negligently failed to keep a careful lookout 'as he neared, closely approached and entered said intersection,' and (2) negligently failed to exercise the highest degree of care 'in approaching and entering said intersection at an excessive rate of speed under the circumstances,' and (3) if the two cars 'reached said intersection at approximately the same time,' plaintiff's driver negligently 'failed to yield the right of way to the automobile on the right,' and, in addition, (4) that plaintiff's driver was negligent in such respects and (5) such negligence directly caused plaintiff's injuries, and (6) that defendant was not negligent as submitted by the instructions of the court. This instruction required the jury to find that the submitted facts constituted negligence. We also note that among the findings submitted in plaintiff's verdict directing instruction was a finding that defendant negligently failed 'to keep a careful lookout' for southbound traffic 'either entering said intersection or in close proximity thereto and about to enter said intersection.'

Plaintiff invokes the following statutory provision: 'When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the driver of the vehicle on the right. * * *' Laws 1953, p. 593, Sec. 304.020, subd. 17; 1957 Supp. RSMo Sec. 304.021, subd. 2, V.A.M.S. The corresponding provisions of Sec. 304.020, subd. 12, RSMo 1949, V.A.M.S., prior to its reenactment by Laws 1953, supra, provided that the operator of a motor vehicle had the right of way over an operator of another motor vehicle 'who is approaching from the left on an intersecting highway * * *. The right of way shall mean the right to proceed when two or more vehicles will reach such intersection at approximately the same time.'

Plaintiff's complaint would fall had the word 'enter' been used instead of 'approach'; and defendant contends, in the circumstances of record, the use of the word 'approach' did not misdirect, mislead or confuse the jury and the instruction was not reversibly erroneous.

Plaintiff stresses what is said about the word 'approaching' unduly extending the imminent peril zone in a plaintiff's humanitarian instruction in Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961, 970. We are here concerned with primary negligence only, and the Buehler case does not establish error. Note what is said about the word 'approached' in a humanitarian submission not misleading the jury in Hillhouse v. Thompson, 362 Mo. 700, 243 S.W.2d 531, 538, and cases there cited. The general observation: 'But an instruction which incorrectly states the law is obviously ground for reversal,' in Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134, 136, cited in plaintiff's reply brief, was made in considering an abstract statement of law based upon a statute held to be unconstitutional, a situation not existing under the present record. We do not construe the Carson case as holding every instruction which contains an abstract statement that does not precisely state the law results in reversible error. Consult section 512.160, subd. 2 RSMo 1949, V.A.M.S.

The refusal of a defendant's similar instruction submitting a plaintiff's contributory negligence and using the word 'reached' instead of the statutory word 'entered' in, section 304.021, subd. 1, supra, was held error in Orloff v. Fondaw, Mo.App., 315 S.W.2d 430, the court considering the instruction substantially correct in form and substance and a fair, clear, and understandable submission of the issue under the facts of record.

This case is submitted here on the theory each automobile approached the intersection at a speed of 20 m. p. h. Plaintiff's driver testified he did not brake or swerve his car, but speeded up to cross the intersection ahead of defendant. Under defendant's evidence both automobiles were 3 feet from the intersection at the same instant. Each was then approaching and for all practical purposes entering the intersection. A ruling that an instruction is not reversibly erroneous under a given record is not an approval of the language used in the instruction. The trial court considered the instruction not prejudicially erroneous when it overruled plaintiff's motion for new trial. The case is a simple one, involving easily understood issues of primary negligence within the common knowledge of jurors. We approve the trial court's ruling. The Orloff case, supra; Stewart v. Boring, Mo., 312 S.W.2d 131, 134.

Our holdings are that it is not necessary for a sole cause instruction to inform the jury that the negligence of the driver of an automobile is not to be imputed to his guests, and plaintiff's contention to the contrary is overruled. Clemons v. Becker, Mo., 283 S.W.2d 449, 452, citing Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54, 58; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60, 64; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366, 372[11, 12]. The earlier cases cited by plaintiff (Decker v. Liberty, Mo., 39 S.W.2d 546, 547[2, 3]; ...