Sparks v. Ballenger, 49759
| Decision Date | 13 January 1964 |
| Docket Number | No. 49759,No. 2,49759,2 |
| Citation | 373 S.W.2d 955 |
| Parties | Melvin J. SPARKS, Plaintiff-Appellant, v. Glenn James BALLENGER and Springfield Ambulance Service of Springfield, Mo., Inc., a corporation, Defendants-Respondents |
| Court | Missouri Supreme Court |
Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Warren S. Stafford, Springfield, for appellant.
Farrington & Curtis, E. C. Curtis, Thomas Strong, Richard K. Wilson, Springfield, for respondents.
HENRY J. WESTHUES, Special Commissioner.
Melvin J. Sparks, plaintiff-appellant, filed a petition in the Circuit Court of Greene County, Missouri, containing two counts. In count one, he asked judgment in the sum of $27,500 as damages for personal injuries alleged to have been sustained as a result of a collision between a Ford car and an ambulance in which he was riding. In count two, he asked judgment for $37,500 for loss of services by consortium and medical expenses incurred by reason of personal injuries sustained by his wife in the same collision.
The ambulance owned by respondent Springfield Ambulance Service at the time of the collision was being driven by respondent Ballenger. A trial resulted in a jury verdict for the defendants-respondents. Plaintiff-appellant appealed from the judgment entered.
The facts as disclosed by the evidence are: 'On December 14, 1958, appellant and his wife Charlsie were in their car driving north on a blacktop road near Willard, Missouri. At about 2:30 p. m., their car collided with another car and appellant and his wife sustained serious injuries. In response to a call, respondent Ambulance Service sent an ambulance to the scene with respondent Ballenger as the driver. Appellant's wife was placed on a cot in the ambulance and appellant occupied the front seat beside the driver. Among the injuries sustained by appellant's wife was a broken leg and appellant suffered a severe injury to the chest.
Enroute to a hospital, the ambulance and a Ford car collided at the intersection of Grant Street and Atlantic Street in Springfiled, Missouri.
Appellant, in his petition, alleged that the and his wife sustained serious injuries and an aggravation of the injuries sustained in the first collision. It is for the injuries claimed to have been sustained in this second collision that appellant seeks damages in this action.
We need not detail the evidence with reference to the collision of the vehicles except to say that appellant introduced evidence from which a jury could infer that the driver of the ambulance was negligent. The respondents introduced evidence that the driver of the Ford car was guilty of negligence which caused the collision and that the driver of the ambulance was not negligent in any respect.
The question on this appeal concerns the giving of an instruction at respondents' request on the burden of proof as to the injuries appellant and his wife sustained in the two collisions.
We deem it best to set forth the instruction of which appellant complains and also an instruction given by the court on behalf of appellant pertaining to the same subject matter.
The instruction (No. 10) complained of reads:
'Therefore, the Court instructs the jury that in the event your verdict is in favor of the plaintiff, in assessing his damages you must not consider either,
'One: The injuries suffered by plaintiff in the first accident, or
'Two: The damages sustained by plaintiff because of injuries his wife received in the first accident, or
'Three: Medical expenses incurred by plaintiff as a result of injuries he received in the first accident, or
'Four: Medical expenses incurred by plaintiff as a result of injuries his wife received in the first accident.
'In this regard, you are further instructed that the burden of proof is upon the plaintiff to prove by a preponderance, that is, the greater weight of the credible evidence, what injuries, if any, were received by himself and his wife in the second accident and what medical expenses, if any, he incurred because of injuries, if any, to himself and his wife resulting from the second accident.'
Instruction No. 4, given at appellant's request, reads:
'Therefore, if you find and believe from all the evidence that on December 14, 1958, the plaintiff and his wife were injured near Willard in what has been referred to in evidence as the first collision and that thereafter either or both, while being transported in the ambulance in question, sustained in the second collision as the direct and proximate result of defendant's negligence, if any, as defined in other instructions, additional injuries or an aggravation of any injuries previously received in the first collision, and if you further find and believe that because of such negligence, if any, of the defendants it is now impossible to ascertain the precise damage, if any suffered by plaintiff in the second collision while he and his wife were being transported in said ambulance, then the fact that plaintiff has not proved, if you should find he has not, with certainty or exactness the extent of his damages, if any, resulting from the second collision will not bar his recovery in this case.
Appellant introduced sustaintial evidence that he suffered a severe injury to his knee in the second collision and that he did not sustain this injury in the first collision. Evidence was introduced that the wife did not sustain any cuts or bruises about her face and head in the first collision but that she did sustain such injuries in the second collision and that they were serious.
Medical evidence was introduced to the effect that whatever injuries were sustained in the first collision they were probably aggravated by the second collision. Of course, the doctors could not determine the extent of the aggravation but in their opinion, considering the force of the impact, an aggravation was a natural sequence. As to the medical expenses, the doctors testified they could not with accuracy apportion such expense between the injuries sustained in the two collisions.
Respondents say that the question of the correctness of the instructions on...
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