Tabler v. Perry

• Decision Date: 09 July 1935
• Docket Number: No. 32972.,32972.
• Citation: 85 S.W.2d 471
• Court: Missouri Supreme Court
• Parties: EDITH G. TABLER v. CHARLES G. PERRY, Appellant.

85 S.W.2d 471

EDITH G. TABLER v. CHARLES G. PERRY, Appellant.

No. 32972.

Supreme Court of Missouri.

Division One, July 9, 1935.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Arthur Bader, Judge.

AFFIRMED.

Wilton D. Chapman for appellant.

(1) The res ipsa loquitur rule does not apply in favor of a passenger riding in a motor car when it skids off the road and causes injury to the passenger. Polokoff v. Sanell, 52 S.W. (2d) 443; Heidt v. People's Motor Bus Co., 219 Mo. App. 683, 284 S.W. 840; Story v. People's Motor Bus Co., 327 Mo. 719, 37 S.W. (2d) 898; Klein v. Belten, 172 N.W. 736; Ferrell v. Solski, 278 Pa. 565, 123 Atl. 493; Linden v. Miller, 172 Wis. 20, 12 A.L.R. 665, 177 N.W. 909; Wobosel v. Lee, 243 N.W. 425; Winslow v. Tibbetts, 162 Atl. 785. The rule of necessity does not require that the guest in an automobile be permitted to invoke a presumption of negligence against the driver in case of an accident. The guest is ordinarily in position to prove the facts bearing on the occurrence. Sabol v. Cooperage Co., 313 Mo. 546. (2) The court erred in giving plaintiff's Instruction 1. McCloskey v. Koplar, 329 Mo. 527, 46 S.W. (2d) 557; Polokoff v. Sanell, 52 S.W. (2d) 443; Mackler v. Barnert, 49 S.W. (2d) 244; Heidt v. People's Motor Bus Co., 219 Mo. App. 683, 284 S.W. 840; McAnary v. Shepley, 189 Mo. App. 396, 176 S.W. 1079; Cook v. Union Elec. L. & P. Co., 232 S.W. 248. (3) The court erred in granting plaintiff's motion for a new trial. (a) The trial court having specified the grounds on which the motion for new trial was sustained, all other grounds in the motion are presumed to have been overruled. Yuranis v. Wells, 322 Mo. 1039, 17 S.W. (2d) 518; Bradley v. Rippell, 133 Mo. 545; Foley v. Union Home Furnishing Co., 60 S.W. (2d) 725; Moore v. Home Ins. Co., 73 S.W. (2d) 298. (b) The mere skidding of an automobile is not evidence of negligence. Polokoff v. Sanell, 52 S.W. (2d) 443; Heidt v. People's Motor Bus Co., 219 Mo. App. 683, 284 S.W. 840; Story v. People's Motor Bus Co., 327 Mo. 719, 37 S.W. (2d) 898; Linden v. Miller, 172 Wis. 20, 177 N.W. 909; Rango v. Fennell, 168 N.Y. Supp. 646; Burke v. Cook, 246 Mass. 518, 141 N.E. 585; Marcinowski v. Sanders, 252 Mass. 65, 147 N.E. 275; Philpot v. Fifth Ave. Coach Co., 142 App. Div. 811, 128 N.Y. Supp. 35; Simpson v. Jones, 131 Atl. 541, 284 Pa. 596; Lockhead v. Jensen, 129 Pac. 347, 42 Utah, 99; Osborne v. Charbneau, 148 Wash. 359, 268 Pac. 884; Springs v. Doll, 197 S.C. 240, 148 S.E. 251. (c) A guest in an automobile cannot wholly entrust his safety to the driver, but is required to exercise ordinary care in observing dangers and warning the driver thereof, and failing to do so bars recovery. Allison v. Dittbrenner, 50 S.W. (2d) 199; Melican v. Whitlow Const. Co., 278 S.W. 366; Heyde v. Patten, 39 S.W. (2d) 814; United States Can Co. v. Ryan, 39 Fed. (2d) 477; Boland v. Ry. Co., 284 S.W. 141; Lewis v. Kansas City Pub. Serv. Co., 17 S.W. (2d) 359; Coulton v. Stanek, 225 Mo. App. 646, 38 S.W. (2d) 506; Irwin v. McDougal, 217 Mo. App. 645; Hines v. Johnson, 264 Fed. 465; Cleary v. Eckert, 191 Wis. 114, 210 N.W. 267. (4) The verdict of the jury being for the right party, it should be reinstated irrespective of errors intervening. Bartley v. Street Ry. Co., 148 Mo. 142; Ellerbe v. Bank, 109 Mo. 455; Orth v. Dorschlein, 32 Mo. 336; Ottomeyer v. Pritchett, 178 Mo. 165.

Strubinger & Strubinger and Freeland L. Jackson for respondent.

(1) The res ipsa loquitur rule applies in favor of a guest injured while riding in an automobile, over which he has no control, which runs off the pavement and into a bank, unless the plaintiff's evidence, in addition to showing the casualty, further shows the cause of the automobile's leaving the pavement. 45 C.J. 1208, sec. 776, p. 1193, sec. 768; Klebe v. Distilling Co., 105 S.W. 1059; Taul v. Askew Saddlery Co., 229 S.W. 422; Meade v. Mo. Water & Steam Supply Co., 300 S.W. 518; Burns v. United Rys. Co., 158 S.W. 394; Moutria v. Ry. Co., 76 S.W. (2d) 427; Alley v. Wall, 272 S.W. 999; Heidt v. People's Motor Bus Co., 9 S.W. (2d) 650; Smith v. Creve Coeur Drayage & Motor Bus Co., 296 S.W. 457; Mackler v. Barnert, 49 S.W. (2d) 244; Berry on Automobiles (5 Ed.), sec. 648; Rogles v. United Rys. Co., 232 S.W. 93. (a) While the mere skidding of a motor car may not, in and of itself, be evidence of negligence, yet, where the evidence adduced shows facts from which the reasonable inference to be drawn is that the skidding would not have occurred except for defendant's acts or omissions as reflected by the evidence, in this situation an inference of negligence arises. Story v. People's Motor Bus Co., 37 S.W. (2d) 900; Heidt v. People's Motor Bus Co., 9 S.W. (2d) 650; Brown v. Davis, 257 Pac. 877; Masten v. Cousins, 216 Ill. App. 268; Baker v. Baker, 124 So. 740; Griffith v. Simrell & Son Co., 155 Atl. 299; Mackenzie v. Oakley, 108 Atl. 771; 15-16 Huddy Encyclopedia of Automobile Law (9 Ed.) 281, sec. 157; 1 Berry on Automobiles (6 Ed.) 598, sec. 723; Eggert v. Schumacher, 22 Pac. (2d) 52; Smith v. Wagner, 30 Pac. (2d) 1020; Luderer v. Moore, 169 Atl. 106; Nyberg v. Wells, 14 S.W. (2d) 531; Rockwell v. Standard Stamping Co., 241 S.W. 979; R.S. 1929, secs. 7775, 7777. (2) Plaintiff's Instruction 1 substantially followed the allegation in her petition, and the court did not err in the giving of this instruction. Rockenstein v. Rogers, 31 S.W. (2d) 792; Mackler v. Barnert, 49 S.W. (2d) 244; Alley v. Wall, 272 S.W. 999. (3) The court did not err in granting plaintiff's motion for a new trial. (a) The trial court's order granting a new trial on the stated ground that the verdict is against the law and the evidence, is equivalent to holding that the verdict is against the weight of the evidence. The ground assigned by the court should be given broad and liberal construction. Beer v. Martel, 55 S.W. (2d) 484; Darnall v. Lyons, 51 S.W. (2d) 163; Foley v. Harrison, 136 S.W. 367; McWilliams v. Ry. Co., 157 S.W. 1004; Carnie v. Toll, 281 S.W. 41; R.S. 1929, secs. 7775, 7777. And it is a matter so entirely within the discretion of the trial court to grant one new trial on ground that verdict is against the weight of evidence, as to require appellate court to not disturb his order in absence of clear abuse of discretion. McWilliams v. Ry. Co., 157 S.W. 1004. (b) But where a new trial is granted on specified grounds, stated in the order, but there are other grounds properly preserved in the record on which the court could and should have sustained the motion, although they are presumed to have been overruled, yet the respondent on appeal may call them to the appellate court's attention, in which case they will be reviewed. Benjamin v. Railroad Co., 151 S.W. 91; Emmons v. Quade, 75 S.W. 103; Foley v. Union House Furn. Co., 60 S.W. (2d) 725. (c) An instruction which abounds in repetition of the one idea that burden of proof is on plaintiff to prove by a preponderance of evidence the charge of negligence, tends to confuse rather than aid the jury, and appellant's Instruction 5 was objectionable for this reason. Oliver v. Morgan, 73 S.W. (2d) 995. An instruction which tells the jury that if they find the evidence touching the charge of negligence against defendant to be evenly balanced, or the truth as to the charge of negligence against defendant remains in doubt in their minds after fairly considering the evidence, then verdict must be for defendant, is tantamount to requiring plaintiff to prove defendant guilty of negligence beyond a reasonable doubt, and this is not the rule in civil cases. Appellant's Instruction 5 was erroneous for this reason. Payne v. Reed, 59 S.W. (2d) 48. Where answer pleads contributory negligence and plaintiff's instructions requiring jury to find that plaintiff exercised ordinary care and a failure so to do would constitute negligence on his part, it is prejudicial error for the court to charge the jury at defendant's request that the burden of proof was on plaintiff to prove defendant's negligence, without further telling them that the burden to prove contributory negligence was upon defendant. The giving of defendant's Instruction 5 was therefore error. Brewer v. Silverstein, 64 S.W. (2d) 289; Raymen v. Galvin, 229 S.W. 747; Tappmeyer v. Ryckoff, 45 S.W. (2d) 891; Szuch v. Ni Sun Lines, 58 S.W. (2d) 473. In a res ipsa loquitur case a presumption of negligence arises from facts put in evidence, and it is error in such a case for the court to instruct the jury that negligence is not to be presumed. Appellant's Instruction 5 so charged the jury and this was error. Mackler v. Barnert, 49 S.W. (2d) 244; Carlson v. Wells, 276 S.W. 26; Nelson v. Heinz Stove Co., 8 S.W. (2d) 920; Harke v. Haase, 75 S.W. (2d) 1001. An abstract instruction tends to broaden the issues and to confuse the jury and invites error, and should not be given. The giving of appellant's Instruction 6 was error. Lewis v. K.C. Pub. Serv. Co., 17 S.W. (2d) 359; Burgher v. Niedorp, 50 S.W. (2d) 174.

STURGIS, C.

In this case the plaintiff seeks damages for the death of her husband, Harry C. Tabler, who was killed in an automobile accident on Highway 66 some fifty miles west of St. Louis. At the time of his death the deceased was riding as a guest of the defendant in defendant's automobile driven by him. The deceased and defendant were friends and business associates and arranged to go for a week-end outing at a fishing resort, defendant furnishing the automobile and driving it. Deceased and defendant left St. Louis on this trip at four or five o'clock in the evening and the accident occurred when the parties had driven about two hours in the country and it was then getting dark. The highway on which the parties were traveling in a general west direction was a well-improved concrete highway, the concrete slab or roadway being eighteen to twenty feet wide. What happened was that the automobile left the concrete roadway on the north or right-hand...