Szuch v. Ni Sun Lines

• Citation: 58 S.W.2d 471,332 Mo. 469
• Decision Date: 16 March 1933
• Docket Number: 30785
• Parties: Joseph Szuch, Appellant, v. Ni Sun Lines, Inc., a Corporation, Detroit-Chicago Motor Bus Company, a Corporation and W. H. McMillan
• Court: United States State Supreme Court of Missouri

58 S.W.2d 471

332 Mo. 469

Joseph Szuch, Appellant, v. Ni Sun Lines, Inc., a Corporation, Detroit-Chicago Motor Bus Company, a Corporation and W. H. McMillan

No. 30785

Supreme Court of Missouri

March 16, 1933

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Reversed and remanded.

A B. Frey, B. Sherman Landau and Tobias Lewin for appellant.

(1) The court erred in giving to the jury Instruction 3 offered by defendants. (a) Instructions on contributory negligence must be confined to the defenses pleaded in the answer. Roman v. King, 233 S.W. 166; Benjamin v. Met. St. Ry Co., 245 Mo. 612; Harrison v. Mo. Pac. Ry. Co., 74 Mo. 369; Donovan v. Ry. Co., 89 Mo. 147; Gary v. Averill, 12 S.W.2d 727; McKenzie v. Randolph, 257 S.W. 126. Defendants' Instruction 3 directs a verdict for the defendants if plaintiff "failed to look to the south before attempting to make said 'U' turn." This alleged contributory negligence was not included among the six acts of alleged contributory negligence pleaded in the amended answer; hence it was erroneous. See cases under (a), supra. (b) Instructions not based on evidence are erroneous. Korte v. Brockman Mfg. Co., 247 S.W. 422; Scheurer v. Rubber Co., 227 Mo. 347; Keppler v. Wells, 238 S.W. 428; Bank v. Met. St. Ry., 217 Mo. 672; Frankel v. Hudson, 271 Mo. 495; Roman v. King, 233 S.W. 166; Costly v. Seward, 93 Mo.App. 108; Quinn v. Van Raalte, 276 Mo. 101, 205 S.W. 59; Champion Coated Paper Co. v. Shilkee, 237 S.W. 109; Gregory v. Jenkins, 43 S.W.2d 877; Nugent v. Curran, 77 Mo. 323; Mosman v. Bender, 80 Mo. 579; Gordon v. Madden, 82 Mo. 193. There was no evidence adduced in this cause in support of defendants' Instruction 3. The only evidence with respect to this matter was that given by the plaintiff, and he testified that he did look to the south. Said instruction was accordingly erroneous because not based on the evidence. See cases under (b), supra, and Richter v. Railroad, 154 Mo.App. 14. (2) The court erred in giving to the jury Instruction 6 offered by defendants. The burden of proof was on the defendants and not on the plaintiff to prove contributory negligence. Clark v. Bridge Co., 324 Mo. 544, 24 S.W.2d 153; Raymen v. Galvin, 229 S.W. 749; Chaar v. McLoon, 304 Mo. 249. Defendants' Instruction 6 placed the burden of proof on the plaintiff to establish "the facts necessary to a verdict in his favor under these instructions." This instruction was therefore clearly erroneous. See cases, supra. (3) The court erred in giving to the jury Instruction 2 offered by defendants. (a) Instructions are erroneous which assume disputed material facts and then direct a verdict thereon. Clark v. Bridge Co., 324 Mo. 544, 24 S.W.2d 153; Roman v. King, 233 S.W. 166; Boland v. Railroad Co., 284 S.W. 144; Rey v. Fayette R. Plumb, Inc., 287 S.W. 783; Ferris and Rosskopf, "Instructions to Juries," par. 28. Instruction 2 erroneously assumes that if plaintiff had "stopped his automobile, swerved the same," he would "thus and thereby have avoided the collision as mentioned in the evidence." (b) Instructions must be based on evidence. See case under 1-b, supra. There is no evidence in the record herein that if plaintiff had stopped his said automobile or swerved the same, he would have avoided the collision as mentioned in the evidence. Said instruction is therefore erroneous. See cases under 1-b, supra. (c) Instruction 2 is predicated on the theory that plaintiff was attempting to make a "U" turn south on Seventh Street, when there was no evidence thereof. It is erroneous for that reason. (See cases under 1-b, supra.) (d) Instructions must be clear and intelligible. Gillette v. Laederick, 242 S.W. 112; Hegberg, Admr., v. Railroad, 164 Mo.App. 563; Lokey v. Rudy-Patrick Seed Co., 285 S.W. 1033. Instruction 2 is erroneous in that portion of the same which reads "in time for plaintiff thereafter to have stopped his said automobile, swerved the same." It is impossible to determine from the language of said instruction whether it is predicated on the failure of plaintiff to stop the automobile or whether it is predicated on the failure of plaintiff to swerve the automobile, or both. (See cases under (d), supra.) (e) In a negligence action arising out of an automobile collision instructions directing a verdict for the defendants on the theory that plaintiff could have stopped his automobile and have avoided the collision must not ignore defendants' prior antecedent negligence, and are erroneous if they do so. Mason v. United Rys. Co., 246 S.W. 325; Abramowitz v. United Rys. Co., 214 S.W. 119. Defendants' Instruction 2 completely ignores defendants' prior antecedent negligence, and the same is, therefore, clearly erroneous. (4) The court erred in giving to the jury Instruction 4 offered by plaintiffs. (a) Instruction 4 directs a verdict for the defendants if "plaintiff failed to give a warning of his intention to drive his automobile away from the east curb . . . and of his intention to make a 'U' turn south on Seventh Street." Plaintiff cannot be convicted of contributory negligence because of his intentions. Roddy v. Ry. Co., 104 Mo. 244, 15 S.W. 1112; Wencker v. Railroad Co., 169 Mo. 598. (b) Instruction 4 further erroneously assumes that plaintiff intended to make a "U" turn south on Seventh Street. There was no evidence to support this assumption. (c) The term "negligence," as used in Instruction 4, is not defined. It is erroneous to use legal terms without defining them, particularly when those terms are used variously in ordinary parlance. Raybourn v. Phillips, 160 Mo.App. 541, 140 S.W. 977; Foy v. United Rys. Co., 226 S.W. 325, 205 Mo.App. 521. (5) The court erred in giving to the jury Instruction 5 offered by defendants. There is no doctrine of comparative care or comparative negligence in Missouri. It was misleading and confusing to the jury to compare the degree of care required of a driver of a small Ford car with that of the chauffeur of a large motorbus with its heavy over-hanging body. Davies v. People's Railway Co., 159 Mo. 1; Clark v. Atchison Bridge Co., 24 S.W.2d 143; Harrison v. Kansas City Electric Light Co., 195 Mo. 623; Eudy v. Federal Lead Co., 220 S.W. 504. (6) The court erred in giving to the jury Instruction 9 offered by defendants. (a) This instruction advised the jury that it "may take into consideration the character of the witnesses." There was no evidence before the jury as to the character of the witnesses. State v. Anslinger, 71 S.W. 1041, 171 Mo. 600; State v. Henderson, 284 S.W. 799. (b) The last sentence of defendants' Instruction 9, is the "falsus in uno falsus in omnibus" clause. This part of the credibility instruction should never be given unless there is clear evidence of perjury or deliberate false swearing. There was no evidence in this case to warrant the giving of this part of this instruction. Oliver v. City of Vandalia, 28 S.W.2d 1046; In re Condemnation v. Boruff, 295 Mo. 28; Gailus v. Pauly Jail Bldg. Co., 282 S.W. 125; Schmidt v. St. Louis Railroad Co., 149 Mo. 269; Conley v. Kansas City Rys. Co., 259 S.W. 153.

Wilbur C. Schwartz and J. Edward Gragg for respondent.

(1) Instruction 3, given at the request of defendants, is within the purview of both the pleadings and the evidence. The answer alleged that plaintiff failed to pay any attention to where he was driving and that by the exercise of the highest degree of care could have seen the motorbus in time to have avoided being injured; also that plaintiff negligently and carelessly drove his automobile away from the east curb and drove the same directly into the path of the motorbus. Borden v. The Falk Co., 97 Mo.App. 570. Plaintiff testified that he failed to look immediately before he drove his automobile out into the street to turn the same around. But if the plea of contributory negligence is not broad enough to cover the failure of plaintiff to look immediately before and while attempting to turn his automobile in the street, which we deny, the plaintiff is in no position to complain, for the reason that in Instruction 1, given by the court at his request, the plaintiff submitted his contributory negligence in general terms and required the jury to find that plaintiff was injured without any negligence on his part and thereby invited an instruction upon any negligence on his part. Coleman v Rightmyer, 285 S.W. 405; Christian v. Conn. Mutual Life Ins. Co., 143 Mo. 468; Bradford v. McAdoo, 202 Mo.App. 412; Aronovitz v. Arky, 219 S.W. 622; White v. United Rys., 250 Mo. 476; Crutchfield v. St. Louis, etc., Ry. Co., 64 Mo. 255. Said instruction is not erroneous because the plaintiff's evidence clearly showed that he was attempting to make a "U" turn, that is, that his automobile was headed north and he was attempting to turn the same around in the street and go south. (2) Instruction 4, given by the court at the request of the defendants, is not erroneous. It was the duty of the plaintiff to give a warning of his intention to make a "U" turn and plaintiff was guilty of contributory negligence if he intended to make a "U" turn in the street, if he failed to give a warning that he was going to so do. Sec. 7777, R. S. 1929. Plaintiff testified that his automobile was headed north on Seventh Street and that he intended to turn the same around and go south on Seventh Street -- and that certainly is a "U" turn. It is not necessary to define the word "negligence" in an instruction, for the reason that the meaning of that term is well understood. Sweeney v. Railway Co., 150 Mo. 401. (3) Instruction 5, given by the court at the request of the defendants, was not misleading or confusing and does not announce the rule of comparative degree of negligence. It simply told the jury that the same degree of care was...