Stanich v. Western Union Tel. Co.

• Citation: 153 S.W.2d 54,348 Mo. 188
• Decision Date: 02 July 1941
• Docket Number: 37156
• Parties: Mike Stanich, Appellant, v. Western Union Telegraph Company, a Corporation
• Court: United States State Supreme Court of Missouri

153 S.W.2d 54

348 Mo. 188

Mike Stanich, Appellant, v. Western Union Telegraph Company, a Corporation

No. 37156

Supreme Court of Missouri

July 2, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed and remanded.

C O. Inman for appellant.

(1) Instruction 4 given at the instance of defendant was erroneous and prejudicial to plaintiff because it directed a verdict for the defendant if the jury found that the defendant placed three red lanterns on the guard and that they were burning at the time of the accident, and if they found the lanterns were so placed on the guard that they were visible to approaching motorist. It was plaintiff's theory that defendant failed to place and maintain lights in such position as to be readily visible to approaching northbound motorists. Under this instruction the defendant was relieved of liability if lanterns were so placed as to be visible to eastbound, westbound or southbound motorists, even though they may not have been so situated as to constitute a reasonable warning to northbound motorists. Mengel v. St Louis, 111 S.W.2d 5. (2) Instruction 7, given at the request of the defendant was erroneous and prejudicial to the plaintiff for three reasons: (a) It directed a verdict for the defendant if the accident was caused by the sole negligence of Jakovac, the driver, but did not hypothesize the acts or omissions constituting such negligence. It was thus broader than the evidence and gave the jury a so-called roving commission. Watts v. Moussette, 85 S.W.2d 487; Schroeder v. Rawlings, 127 S.W.2d 678; Pearrow v. Thompson, 121 S.W.2d 811; McGrath v. Myers, 107 S.W.2d 792; Schide v. Gottschick, 43 S.W.2d 777; Clason v. Lentz, 61 S.W.2d 727. (b) The instruction failed to advise the jury that the negligence of Jakovac could not be imputed to the plaintiff, and in so failing the instruction was misleading and confusing. Watts v. Moussette, 85 S.W.2d 487; Dilallo v. Lynch, 101 S.W.2d 7. (c) It was further misleading in that it predicated a verdict for defendant upon the ground that the accident was caused on account of the sole negligence of Jakovac rather than upon the ground that his negligence was the sole cause. Thus the jury could have understood that Jakovac's negligence defeated recovery if it contributed to cause the accident. (3) The court erred in refusing Instruction C offered by plaintiff which would have directed a verdict for plaintiff if defendant failed to have a sign or flares on Broadway to notify motorists of the presence of a barricade ahead. It was for the jury to say, in view of the character and use of Broadway, whether ordinary care on the part of defendant would have required such warnings. Lowery v. Kansas City, 85 S.W.2d 104. Even though others engaged in like business did not employ such methods, the defendant was not ipso facto relieved of liability if ordinary care under the circumstances required additional warnings. Grosvener v. N. Y. C. Ry. Co., 123 S.W.2d 173, 343 Mo. 611; Olds v. St. L. Natl. Baseball Club, 119 S.W.2d 1000.

Jones, Hocker, Gladney & Grand, Web A. Welker and Vincent L. Boisaubin for Western Union Telegraph Company; Francis R. Stark of counsel.

(1) Instructions are to be read in their entirety and considered together on any charge of error in a particular instruction. McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37. (2) Errors or omissions in the instructions of one party may be cured by the instructions of the other party. It is unnecessary that the same matter be repeated in each instruction. One party cannot complain of the form of an instruction of another party when the party complaining submits the matter in the same form. Evans v. Atchison, T. & S. F. Ry. Co., 131 S.W.2d 604; Branson v. Abernathy Furniture Co., 130 S.W.2d 562; Gayle v. Mo. Car & Foundry Co., 177 Mo. 427, 76 S.W. 987. (3) Where ordinary care, that is, the question of what reasonable men should do under the same or similar circumstances, is the issue, evidence of that which is the uniform and customary practice under the same circumstances is proper to consider. Tuttle v. Kline's, 230 Mo.App. 230, 89 S.W.2d 676; Asbury v. Fidelity Natl. Bank & Trust Co., 231 Mo.App. 437, 100 S.W.2d 946. (4) Where the usual and customary manner of warning motorists of a street obstruction sanctioned by uniform practice is followed, and there is no special showing requiring the need for additional warnings, the usual and customary warnings are sufficient, and there is no legal duty to provide additional warnings. 5 Cyc., Auto Law & Practice, sec. 3257; Butcher v. Racine, 208 N.W. 244, 189 Wis. 541; Nielsen v. Christensen-Gardner, 38 P.2d 743; Wolfe Const. Co. v. Ellison, 174 So. 594; Hansen v. Clyde, 56 P.2d 1366; Carlson v. New York, 134 N.Y.S. 661; Cora v. Borough of Kingston, 150 A. 384; Tagge v. Roslyn, 98 P. 668; Conley v. Kansas City, 202 P. 607; Hunt v. St. Louis, 278 Mo. 213; Howard v. Knutson, 229 Mo.App. 267, 77 S.W.2d 158.

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

OPINION

HYDE

This is an action for $ 25,000 damages for personal injuries. Plaintiff was a guest in an automobile which collided with defendant's barricade, in the street, alleged to have been insufficiently lighted. Defendant's answer was a general denial. The jury found for defendant. Plaintiff has appealed from the judgment entered.

Plaintiff assigns error in instructions. Plaintiff was riding in a car owned and driven by N. M. Jakovac north on Broadway in St. Louis. Jakovac drove, "at the rate of twenty or twenty-five miles per hour," for several blocks behind a large transport truck which made a left turn (west) upon reaching Cass Avenue. Jakovac continued northwardly, on the right side of the east street car track, into the intersection and struck defendant's barricade ("between the easternmost street car track and the east curb") in front of a manhole which it was repairing; and plaintiff was injured. Jakovac said that when the truck turned he was about twenty feet behind it (he swung to the right when the truck slowed down to turn); that he "must have run thirty or thirty-five feet before (he) saw this barricade;" that "about ten feet away from that barricade (he) noticed a flicker of light which happened to be a lantern;" and that he "made a quick swerve to the left, stepping on the brakes at the same time" but went about fifteen feet after striking the barricade. (He said he could stop his car in about 20 feet at 20 miles per hour.) He said that there were "no flares or torches of any kind on the street and no reflectors on the barricade;" that the "flicker of light (he saw) was in a lantern placed on the southwest side of the barricade behind the bar" (of the barricade) which "partly hid the light from view;" that "there were no other lanterns burning upon the barricade;" and that, after the collision, he found two cold lanterns with no oil in them, and one warm with "just a trifle of oil in it." Plaintiff had evidence that it "would take at least thirty minutes for the lantern to cool off, in the summertime, after it went out."

Defendant's evidence was that the barricade was set up on the south line of Cass Avenue, about 4:30 P.M. (collision occurred about 9:30 P. M.), with three lanterns filled with oil, sufficient to burn in excess of twenty-four hours, wired to prevent them swinging, "one to the south, one to the east, and one to the west." The barricade was open to the north "where there would be no traffic going into it." It was also shown that the same kind of barricade and lights were used all over St. Louis by defendant and others. Defendant had a witness who said he came by the barricade and saw the lights (at least two) burning "about fifteen minutes before the accident happened;" that he "saw the accident" from a place where he was visiting with relatives about 150 feet north; that "the lights burned until it (the barricade) hit the street and that broke them and put them out;" and that he "lit one of the lanterns" (which was not broken) and put up the barricade after the collision. Defendant also had the testimony of police officers that the lanterns were burning about a half hour before the collision and that they found oil in the street around the broken glass of the lanterns.

Plaintiff assigns the giving of defendant's instruction No. 7 as error. This was a sole cause instruction, as follows:

"The court instructs the jury that if you believe and find from the evidence in this cause that the accident mentioned in the evidence, and in which plaintiff alleges he was injured, was caused on account of the sole negligence of defendant Nicholas M. Jakovac, and that there was no negligence on the part of The Western Union Telegraph Company causing or contributing to cause said accident, then your verdict must be in favor of defendant 'The Western Union Telegraph Company.'"

This court has been called upon to consider sole cause instructions frequently since the Court en Banc in Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373, overruled Causey v. Wittig, 321 Mo. 358, 11 S.W.2d 11. The effects and requirements of the Borgstede case, and those following it, as to sole cause instructions, seems to have been misunderstood.

Since under our jury system, the jury does not have the function of deciding questions of law, the primary purpose of instructions must be to inform the jury, as triers of the facts, what fact issues are to be favorably decided to reach each possible verdict. Mere statements of abstract legal propositions therefore do not make proper jury instructions. Instead each instruction authorizing the finding of a verdict (for plaintiff or for defendant on an affirmative defense) must require the finding of all essential fact...