Sweatman v. McClure, 24602

• Decision Date: 05 June 1967
• Docket Number: No. 24602,24602
• Citation: Sweatman v. McClure, 416 S.W.2d 665 (Mo. App. 1967)
• Parties: James SWEATMAN, Respondent, v. John W. McCLURE, Jr., Appellant.
• Court: Missouri Court of Appeals

Page 665

416 S.W.2d 665

James SWEATMAN, Respondent, v.John W. McCLURE, Jr., Appellant.

No. 24602.

Kansas City Court of Appeals, Missouri.

June 5, 1967.

Terence C. Porter, Columbia, for appellant.Welliver, Porter & Cleaveland, Columbia, of counsel.

Larry M. Woods, Columbia, for respondent.Sapp, Woods & Dannov, Columbia, of counsel.

HOWARD, Presiding Judge.

This is a suit wherein plaintiff attempted to recover for personal injuries suffered when he, as a pedestrian, was run into by defendant's automobile on Highway 63 North, in Columbia, Missouri.Trial to a jury resulted in a verdict for plaintiff in the amount of $6,000.00, which is within the jurisdiction of this court.The parties will be referred to as they appeared below.

Appellant's only complaint concerns alleged defects of InstructionNo. 3, which was plaintiff's verdict directing instruction.In view of this limited issue a relatively brief summary of the evidence will suffice.On New Year's Eve, December 31 1964, plaintiff had drunk several beers and his car ended up in the ditch on the west side of Highway 63 North, at the northern edge of Columbia, Missouri.After waiting in the car for some time for a wrecker, which did not arrive, plaintiff, shortly after midnight on January 1, 1965, got out of his car and started walking south toward a filling station at the intersection of Highway 63 and old Highway 40 in Columbia.It was a dark, wet night with drizzling rain.The pavement was wet and the shoulder muddy.Plaintiff was dressed all in black.His testimony was that he started out walking on the shoulder but it was so muddy that he kept slipping and sliding and had difficulty keeping his footing.He therefore moved over to the edge of the pavement and continued walking south with his left foot on the west edge of the pavement and his right foot in the mud on the shoulder.He observed the lights of a car approaching from the rear.He could see the light reflection on his clothing and on the road.He glanced at the car but then faced forward and continued walking south as before, with one foot on the pavement and one foot in the mud of the shoulder, until he was struck from the rear by the car.

The car which struck plaintiff was driven by defendantJohn W. McClure, Jr.He testified that he did not see plaintiff until after he hit him and when plaintiff flew up over the hood of his car.Defendant pulled his car into an adjacent driveway and went back to see what he had hit.He discovered plaintiff lying on the pavement, roughly parallel to and about three feet east of the west edge of the pavement.Plaintiff had multiple fractures of the pelvis and various bruises and lacerations, but in view of the issue involved, we need not detail this aspect of the case.

Defendant alleges error in the giving of InstructionNo. 3'for the reason that it authorized verdict for plaintiff based upon defendant's failure to swerve his automobile, without requiring a finding of the basic fact that there was apparent danger of collision.'

InstructionNo. 3 reads as follows:

'INSTRUCTIONNO. 3

'your verdict must be for plaintiff if you believe:

First, defendant either:

failed to keep a careful lookout, or

failed to swerve to the left, and Second, defendant's conduct, in any one or more of the respects submitted in paragraph First was negligent, and

Third, as a direct result of such negligence, plaintiff sustained damage,

Unless you believe plaintiff is not entitled to recover by reason of Instruction Number 6.

The term 'negligence' as used in this instruction means the failure to use the highest degree of care which means that degree of care that a very careful and prudent person would use under the same or similar circumstances.

Given 2--1--66

M.A.I. No. 17.02'

This instruction is in the form prescribed by MAI 17.02.This instruction, as it appears in the MAI handbook, covers lookout, excessive speed and driving on the wrong side of the road.It is defendant's contention that the failure to swerve part of the instruction should have been given with the prerequisite finding of likelihood of collision as is provided for such matters in MAI 17.04, which instruction reads: 'Defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have' stopped, swerved, slacken speed, etc.The notes on use of MAI 17.04 provide: 'This is an optional submission of negligence which may be used as paragraph First of Verdict Directing 17.01 or as one of the alternate submissions in paragraph First of Verdict Directing 17.02.'This clearly shows that the drafters of MAI contemplated that such matters as stopping, swerving, slackening speed, sounding a warning etc. should be submitted in the form set out in 17.04 and not in the form appearing as 17.02.The reason for this direction is apparent from the Committee's Comment where they cite Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, and quote therefrom a passage which points out there is no duty upon a defendant to tke any precautionary or evasive action unless and until there is an apparent danger of collision.

CivilRule 70.01(b), V.A.M.R. provides: 'Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject.'(Emphasis supplied).

It is apparent that in the present case Instruction 17.04 is the appropriate instruction and should have been used in this instance to submit to the jury the issue of whether or not defendant was negligent in failing to swerve his automobile.This is true even though the lookout part of the instruction was properly submitted in the form provided by MAI 17.02.SeeHawkeye Security Insurance Co. v. Thomas Grain Fumigant Co., Mo.App., 407 S.W.2d 622, where we recently held that failure to require a finding of apparent danger of collision before finding negligent failure to take evasive action was error and that such error was prejudicial in the circumstances there disclosed.In the Hawkeye case, as in the case at bar, that part of the instruction covering failure to take evasive action was coupled with a lookout instruction which was proper as to form.

Our Supreme Court has recently made it quite clear that MAI instructions and the notes on use thereof are not merely suggestions, but are mandatory requirements and that failure to follow the instructions and the notes on use will constitute error as is pointed out in Rule 70.01(b)supra.In Peak v. W. T. Grant Company, Mo., 409 S.W.2d 58, the court said, l.c. 60: 'The basic theory concerning the use of MAI is that when...