Stermolle v. Brainard

• Citation: 24 S.W.2d 712
• Decision Date: 27 January 1930
• Docket Number: 16775
• Parties: STERMOLLE v. BRAINARD.
• Court: Court of Appeals of Kansas

24 S.W.2d 712

STERMOLLE v. BRAINARD.

No. 16775

Court of Appeals of Missouri, Kansas City

January 27, 1930

Rehearing Denied Feb. 17, 1930.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

“ Not to be officially published.”

Action by Eva Stermolle against Archie Brainard. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cowgill & Popham, of Kansas City, for appellant.

W. W McCanles, of Kansas City, and Thompson & Thompson, of Princeton, for respondent.

OPINION

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $6,000.00 and defendant has appealed.

The facts show that about 5 p. m. of April 24th, 1927, plaintiff was driving an automobile westwardly across the Intercity viaduct, a roadway connecting Kansas City, Missouri, and Kansas City, Kansas. The viaduct was full of cars moving in both directions. Plaintiff stopped her car on account of the stopping of the traffic in front of her and when she did so defendant ran his car into the rear of hers resulting in her car being pushed violently against a car ahead and plaintiff being injured. Plaintiff’s evidence tended to show that at a point about fifty feet before plaintiff stopped her car she saw, through the mirror in her car, defendant’s car approaching. There was no car between the two. Seeing that she would be required to stop she held out her hand in order to give defendant warning of her intention to stop. The evidence shows that her car had stopped "a minute or two" before it was struck by defendant’s car. After the collision defendant stated to plaintiff: "I made a mistake and stepped on the gas."

Defendant’s evidence tended to show that plaintiff after having passed a number of cars weaving in and out between them, came suddenly to a stop in front of his car; that she gave no signal that she intended to stop but when she did so defendant at once stopped his car whereupon a car to the rear of his struck it causing it to be driven against plaintiff’s car. Defendant denied making the statements attributed to him by plaintiff.

Complaint is made that the court erred in giving plaintiff’s instruction No. 1, for the reason that it did not submit specifically the acts of negligence pleaded, and did not have the jury find that the negligence submitted was the proximate cause of the injury. The petition alleges by way of inducement that plaintiff was required to stop her car on account of cars stopping ahead; that before she stopped she held out her hand "some five or six seconds" as a warning to all persons, including defendant, who were following her car of her intention to stop; that in addition to said signal given by plaintiff to defendant he could or should have known that it would be necessary for plaintiff to stop on account of the stopping of "a long string of cars" in front of her; that the entire portion of the viaduct north of the center of the same was filled with west-bound automobiles at this point and the entire south portion with east-bound automobiles, making it impossible for plaintiff to turn out around the other cars; that all of these circumstances were known or should have been known by the defendant. The petition then alleges:

"That at the time and place hereinbefore mentioned the defendant was driving an automobile in a westerly direction on said viaduct immediately behind plaintiff’s car and carelessly and negligently disregarding plaintiff’s said signal and the congested condition of said viaduct hereinbefore mentioned, he carelessly and negligently operated his car into and against plaintiff’s car with great force and violence."

The instruction told the jury that if they found that plaintiff was compelled to stop her car on account of the congested condition of the traffic on the viaduct, and that if there were automobiles ahead of plaintiff going in a westerly direction which had stopped causing her to stop her car, and "if your further find and believe from the evidence that before stopping her automobile she held out her left hand for the purpose of warning all persons, including the defendant, of her intention to stop, if she did, and if you further find and believe from the evidence that the defendant was following the plaintiff’s car at said time and place, and that the said defendant could or should have known by the exercise of ordinary care and diligence on his part that it would be necessary for the plaintiff to stop her car on account of the congested condition of said traffic, if you find that it was congested, and if you further find and believe from the evidence that the defendant was driving an automobile in a westerly direction on said viaduct behind the plaintiff’s car and that the said defendant at said time and place operated his car into and against the plaintiff’s car with great force and violence, if you find such to be the facts, causing plaintiff to be injured, if she was, and if you further find and believe from the evidence that in all of the foregoing respects the defendant was guilty of carelessness and negligence as carelessness and negligence (are) elsewhere defined in these instructions, and that the plaintiff was exercising reasonable care for her own safety (if you so find), then it will be your duty to find the issues in favor of the plaintiff and against the defendant."

Plaintiff’s instruction No. 2 reads as follows:

"The terms ‘carelessness’ and ‘negligence’ and ‘carelessly’ and ‘negligently’ used in these instructions mean the failure to exercise ordinary care, and ‘ordinary care’ means such care as ordinarily careful and prudent persons usually exercise under the same or similar circumstances."

We think defendant’s contention is well taken. The negligence pleaded was that defendant operated his car against plaintiff’s car in disregard of plaintiff’s signal and the congested condition of the viaduct, but the instruction does not submit these charges of negligence but, in effect, submits general negligence on the part of defendant, giving the jury a roving commission to find liability on any theory of negligence. White v. Handy (Mo. App.) 245 S.W. 613; Wilcox v. Ry., 201 Mo.App. 510, 213 S.W. 156, 158. Under this instruction the jury were required to render a verdict for plaintiff if they found merely (1st) if she held her hand out before stopping for the purpose of a warning of her intention to stop; (2nd) if defendant by the exercise of ordinary care could or should have known that it would be necessary for plaintiff to stop her car on account of the congested condition of the traffic; (3rd) if defendant’s car struck her car and she was injured; (4th) if defendant was guilty of carelessness and negligence "in all of the foregoing respects," as defined in the other instructions. There was no requirement that the jury find that the warning was timely given or that defendant disregarded the congested condition of the traffic.

Plaintiff insists that the instruction does submit the matter of a timely warning as she contends that the word "held" means "to extend for a reasonable period. And when taken in connection with holding out the hand to warn someone behind, no jury or reasonable man would interpret such expression to mean only a momentary or sudden movement." The trouble with plaintiff’s contention is that the instruction merely had the jury find that it was her intention to warn persons by holding out her hand. The purpose of plaintiff cannot be substituted for a timely warning. It makes no difference what her purpose was, unless the warning was in fact timely and so found by the jury, defendant was not guilty of negligence in failing to observe or heed her warning.

While it may be that the instruction has the jury find a causal connection between the general negligence of the defendant submitted in the instruction and the collision, it does not properly submit any causal connection between the latter and the other matters mentioned in the instruction, that is, the warning signal and the knowledge, actual or constructive, of the congested condition of the traffic. Frank v Meletio (Mo. App.) 251 S.W. 95, 96; O’Leary v. Steel Co., 303 Mo. 363, 260 S.W. 55, 62; Edmondson v. R. R. (Mo. App.) 264 S.W. 470, 474. It would appear from a reading of the instruction that the reference to the warning and the congested condition of the traffic was merely for the purpose of drawing the jury’s attention to the conditions present and was not a part of the negligence submitted to the jury, that negligence being merely the most general,...