Stotler v. Bollinger, 34823
| Decision Date | 30 October 1973 |
| Docket Number | No. 34823,34823 |
| Citation | 501 S.W.2d 558 |
| Court | Missouri Court of Appeals |
| Parties | Glenn STOTLER and Lucile Stotler, Plaintiffs-Appellants, v. Lee BOLLINGER, d/b/a B & B Oldsmobile, Defendant-Respondent. . Louis District, Division One |
McClintock & Murphy, E. L. McClintock, Jr., Flat River, for plaintiffs-appellants.
Roberts & Roberts, Farmington, for defendant-respondent.
In order to recover damages for personal injuries occasioned to plaintiff Glenn Stotler, he and his wife sued defendant Lee Bollinger, the proprietor of the garage where he was injured. Trial to a jury resulted in a verdict and judgment favoring defendant. Plaintiffs appeal, and we affirm the judgment.
Plaintiffs' first two contentions of error revolve around the giving of Instruction No. 6, wherein the ultimate facts of the alleged contributory negligence of Glenn Stotler were hypothesized. The instruction submitted in the disjunctive, the failure of plaintiff Stotler to keep a lookout (MAI 17.05), and the failure to give a warning after danger of collision was apparent (MAI 17.04). Plaintiffs correctly state the rule for submission of an instruction on contributory negligence when they assert it must be supported by the evidence. Any verdict directing instruction, whether it be hypothesized in a plaintiff's instruction directed to the negligence of a defendant, or a defendant's instruction directed to the negligence of a plaintiff, must be supported by the evidence. MAI 1.02, Committee's Comment, p. 7; MAI 17.02, Notes on Use; Heberer v. Duncan, 449 S.W.2d 561, 563(4) (Mo. banc 1970); Shelton v. Bruner, 449 S.W.2d 673, 676(1) (Mo.App.1969). In considering whether the instruction is supported by the evidence, the evidence is considered in the light most favorable to the prevailing party. Heberer v. Duncan, supra, p. 562(2). And the evidence submitted by the opposite party is disregarded unless it tends to support the submission. Rickman v. Sauerwein, 470 S.W.2d 487, 489(1) (Mo.1971).
A review of the evidence, however, indicates that the jury could have found and inferred that the plaintiff, Glenn Stotler, was contributorially negligent. Stotler had brought his automobile to the garage to have the horn on his car repaired. He left the car and walked inside the repair shop to look for the proprietor. He talked briefly to Jake Wells, an employee, behind a car that Wells told him he was going to move out of the garage. Wells then turned around, got into the car, started up the engine which could easily be heard across the garage, and after putting the car in reverse, backed it very slowly at one to two miles per hour. When another employee hollered at him, Wells stopped the car after he had backed a total distance of ten or twelve feet. Wells stopped about one foot after the warning. He got out, found Stotler on the floor and helped him up. Instead of going to the office where Wells had indicated Stotler might find the proprietor, the plaintiff testified that he stopped to read an overhead sign, and did not notice the car backing toward him. The next thing he knew he was falling.
Plaintiff had received a warning from Wells that the car was to be backed out. He knew where the car was situated, and if he had looked to the right, according to his own testimony, he could have seen the car. Thus he had the opportunity to observe the danger before the car hit him. Considering the maximum backing speed at two miles per hour, the car would have been traveling at approximately three feet per second. After hitting plaintiff, the car stopped with its rear bumper at his feet. It would have taken a total of three to four seconds to reach plaintiff. Using reaction time of 3/4 second (Schneider v. Dannegger, 435 S.W.2d 416, 418(4) (Mo.App.1968) and ordinary walking speed of between 2.9 feet and 4.4 feet per second (Immekus v. Quigg, 406 S.W.2d 298, 300(2) (Mo.App.1966), he could have moved out of the way in about two seconds. Since there was testimony that the car had stopped within about a foot after another employee had shouted to the driver, and considering the time and distance involved, the jury could additionally have found that plaintiff could have avoided the accident by shouting a warning. The jury had evidence from which it could determine that the plaintiff had a duty to look; that he had the opportunity to avoid the danger by stepping out of the way of the backing car or by giving a warning to its driver; and that there was time and distance for plaintiff to do either or both, and thereby avoid the collision. We find no error in giving the contributory negligence instruction.
During closing argument, counsel for defendant argued to the jury that one of the treating physicians, a neuro-surgeon, had agreed with another treating physician, an orthopedist, in a diagnosis that plaintiff suffered from hypochondriasis, or a morbid concern about his...
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