Stroh v. Johns

• Decision Date: 11 January 1954
• Docket Number: No. 43632,No. 2,43632,2
• Citation: 264 S.W.2d 304
• Parties: STROH v. JOHNS
• Court: Missouri Supreme Court

Page 304

264 S.W.2d 304

STROH v. JOHNS.

No. 43632.

Supreme Court of Missouri, Division No. 2.

Jan. 11, 1954.

Motion for Rehearing or to Adjudicate, etc., Denied Feb. 8, 1954.

William J. Blesse, William Kohn, St. Louis, for appellant.

Wilbur C. Schwartz, St. Louis, for respondent. Joseph Nessenfeld, St. Louis, of counsel.

TIPTON, Judge.

In the circuit court of the city of St. Louis a jury returned a verdict in favor of appellant in the sum of $12,000 for the wrongful death of her husband, which was the result of a collision between an automobile in which deceased was riding and which was being driven by appellant, and an automobile driven by respondent. This collision took place at the junction of Highways 66 and 141 in St. Louis County. The trial court sustained respondent's motion for new trial on the ground that appellant's argument was prejudicial in that it was not within the issues submitted to the jury, and on the ground that instruction No. 1 was erroneous.

On the north shoulder of Highway 66 there is a traffic sign 728 feet east of Highway 141 which reads, 'Slow to 35 Miles.' West of this traffic sign is another sign which reads, 'Junction Slow, 600 Feet.' There is a third sign 435 feet east of Highway 141 which reads, 'Jct., 66 [with arrows point upwardly] 141,' with arrows pointing north and south. The next sign is a high blinker sign with the word 'Crossroad' on it. Highway 66 is a four-lane highway with the two south lanes for eastbound traffic and the two north lanes for westbound traffic. Highway 141 is 20 feet wide and runs north and south, with the east lane for northbound traffic and the west lane for southbound traffic. There is a stop sign about 12 feet south of the south edge of Highway 66, and there is also a stop sign north of Highway 66.

At the time of the collision, the appellant and her husband were on their way home from a ride in the country. Appellant was driving and her husband was on the front seat of the car with her. Just prior to the collision, the appellant was driving north on Highway 141. Appellant brought her car to a stop even with the stop sign south of Highway 66. A witness for appellant testified that respondent was going 60 to 70 miles an hour at the time of the collision. As appellant started up after making the stop, she noticed an eastbound truck on Highway 66, about to make a left hand turn into Highway 141. She nodded to the driver to go ahead and continued to move slowly into the intersection. While this truck was making the left turn, she looked to the east and saw what must have been the respondent's automobile about 350 to 500 feet from her. She was unable to estimate its speed but testified, 'It didn't look like he was going fast enough that I couldn't get over the highway. * * * I knew there was slow signs there to thirtyfive. I had plenty of time to get over.' After seeing this car, she then glanced over to the northwest corner of this intersection and saw some automobiles on Highway 141 that were apparently stopping before crossing Highway 66. She again looked to the west and saw no cars in that direction. By this time her car was in the south lane for westbound traffic. She had been travelling 10 to 15 miles an hour. She again looked to the east and saw respondent's automobile coming very fast, about 40 to 50 feet from her. She tried to speed up her automobile in order to let respondent pass behind her, but her car was hit at the right rear wheel by respondent's automobile with such force that it turned appellant's automobile around so that when it came to a standstill it was facing south and was north of Highway 66. The impact caused the front door of her automobile to fly open and her husband fell out of the door. She fell out on top of him. He died that day from the injuries he there received. Respondent lost control of his car and came to a stop on Highway 66, about 300 feet west of Highway 141, after hitting another automobile that was eastbound.

Respondent's evidence tended to show that he approached Highway 141 at the same speed that other cars were travelling west on Highway 66. He testified that, in his best judgment, he was travelling about 35 to 40 miles an hour, that appellant slowed up after she started across Highway 66, and that is why he was prevented from passing to the rear of appellant's automobile with safety.

Appellant's attorney made the following statement during his opening argument to the jury: 'I don't believe that there can be any doubt that the immediate, direct cause of this collision was the great speed of this (respondent's) automobile.'

The trial court's order sustaining respondent's motion for new trial shows that the court was of the opinion that it was error to permit the above statement to be made over the objection of respondent because it was not within the issue of negligence submitted to the jury by the trial court's instructions.

At the request of appellant, the trial court gave three instructions. Instruction No. 1 was on primary negligence. It involved respondent's failure to keep a lookout ahead and laterally for traffic that might be moving on Highway 141, and the failure of respondent to slacken the speed of his car so as to avoid striking appellant's car. Instruction No. 2 submitted humanitarian negligence of respondent. The other instruction given at the request of appellant was on the measure of damages.

There were nine grounds of negligence alleged in appellant's petition, the first of which was the excessive rate of speed at which respondent was driving his automobile, yet appellant offered no instruction on excessive speed. She, therefore, abandoned that issue.

Excessive speed and failure to slacken speed are two separate specifications of negligence. '* * * the fact that the speed in negligent is not inconsistent with the idea that the speed can be slackened by the exercise of the highest degree of care so as to avoid a collision; that negligence in failing to stop or slacken the speed is not inconsistent with negligence in fast running.' Hillis v. Rice, Mo.App., 151 S.W.2d 717, loc. cit. 724.

There was evidence in this record that respondent was driving his car at a high rate of speed. Of course, appellant had a right to argue the evidence and all reasonable inferences to be drawn therefrom as a circumstance in connection with the submitted issue of negligence. Lepchenski v. Mobile & O. R. Co., 332 Mo. 194, 59 S.W.2d 610; Gravemann v. Huncker, Mo.App., 71 S.W.2d 59; Marczuk v. St. Louis Public Service Co., 355 Mo. 536, 196 S.W.2d 1000. In other words, appellant had a right to argue speed as a circumstance shown on the issues of failure of respondent to slacken the speed. But, certainly, appellant could not argue speed as an independent ground of negligence under this record. Excessive or great speed was not a ground of negligence submitted to the jury.

We believe the trial court had a right to believe that the above quoted part of appellant's attorney's argument told the jury that they could return a verdict if they believed that the collision in question was directly caused by the great or excessive speed of respondent's automobile.

If the trial court had given an instruction on excessive speed as a ground of negligence, he could have used the...