Terrell v. McKnight
| Decision Date | 13 February 1950 |
| Docket Number | No. 41548,No. 1,41548,1 |
| Citation | 360 Mo. 19,226 S.W.2d 714 |
| Parties | TERRELL v. McKNIGHT |
| Court | Missouri Supreme Court |
Dwight Roberts, Ira B. Burns, Kansas City, for appellant.
Elliot Norquist, Thomas J. Wheatley, Kansas City, for respondent, Kemp, Koontz, Clagett & Norquist, Kansas City, of counsel.
In a personal injury action plaintiff sued for $15,000. Verdict and judgment were for defendant. Plaintiff appeals and assigns error in the refusal of instruction No. 1 and the giving of instructions C-3 and D.
The amended petition upon which the case was tried, among other allegations, stated: that at a certain time and place plaintiff was driving an automobile easterly on United States Highway 71; that defendant's employee negligently operated a truck so as to cause the same to come into collision with the automobile which plaintiff was driving, as a direct result of which plaintiff was injured; that defendant's employee failed to exercise the highest degree of care in the operation of the truck in the following particulars:
Defendant denied the material allegations of the petition and set up contributory negligence on the part of plaintiff.
The evidence was in sharp conflict as to the facts tending to show negligence on the part of defendant and contributory negligence on the part of plaintiff.
The main contention of plaintiff on this appeal, to which he devotes nearly all his brief, is that the court erred in refusing instruction No. 1 and in giving in lieu thereof instruction C-3. We set out those instructions in full as follows:
'The court instructs the jury that if you believe and find from the evidence that on the 15th day of June, 1948, the plaintiff was driving the automobile mentioned in evidence in an easterly direction on U. S. Highway No. 71; and if you further find and believe from the evidence that the motor truck mentioned in evidence was being operated on and about the business of defendant, by a driver in the employ of said defendant, in an easterly direction on Highway No. 71, at said time an place, if you so find; and if you further find that said defendant thru his servant and employe--, if so, suddenly turned said truck onto the lane in front of plaintiff, if so, without any warning of his intention to do so, if so, and stopped said truck on said highway, if you so find, and failed to extend his arm or give other timely warning of his intention to stop said truck on said highway, if so, in such a position that the right side of said truck was not as near the right hand side of said highway as practicable, if you so find, then you are instructed that such failure, if any, on the part of said driver was negligence, and if you further find and believe from the evidence that as a direct result thereof, plaintiff's motor car collided with said motor truck, if you so find, through no fault of the plaintiff, if so, thereby causing plaintiff to be injured, if you so find, then your verdict must be in favor of the plaintiff and against the defendant.'
'Instruction No. C-3.
'The Court instructs the jury that if you find and believe from a preponderance of the evidence, as defined in another instruction, that on the 15th day of June, 1948, the plaintiff was driving his automobile, mentioned in evidence, in an easterly direction on U. S. Highway No. 71; and if you further find and believe from the evidence that the motor truck, mentioned in evidence, was at said time and place being operated by the servants, agents, and employees of the defendant or by one of them, if you so find, and that while acting in the performance of their duties as such; and if you further find that at the places mentioned in evidence said agents, servants, and employees, or either of them, suddenly turned said truck on said highway, if you so find, and failed to extend his arm or give other timely warning of his intention to stop said truck on said highway, if so, and in such position that the right side of said truck was not as near the right side of said highway as practicable, if you so find, and that said actions, if any, would thereby be reasonably likely to create danger of a collision between the plaintiff's car and said truck under the facts and circumstances in evidence, and
'If you further find that the defendant, acting by and through his said agents, servants, and employees, in the above respects failed to exercise the highest degree of care, then under the law the defendant, Frank B. McKnight, was guilty of negligence, and
'If you further find that such negligence, if any, directly caused or directly contributed to cause the plaintiff's automobile to strike, run against, and collide with said truck, and that plaintiff was thereby injured, and that at all said times plaintiff was in the exercise of the highest degree of care for his own safety, as defined in another instruction, then under the law the defendant, Frank B. McKnight, would be liable in damages to plaintiff for his said injuries, if any, and if you so find the facts to be, you will return your verdict in favor of plaintiff and against the defendant.'
Instruction No. 1 purports to cover the case and directs a verdict for plaintiff. It does not expressly ask the jury to determine whether or not defendant was negligent, that is, whether he exercised the proper degree of care. The instruction tells the jury that if they find that the driver of the truck suddenly turned into the lane in front of plaintiff without warning, and stopped the truck on the highway, not as near the right side as practicable,and failed to extend his hand or give other timely warning of his intention to stop, that such acts of the driver were negligence.
Plaintiff says the instruction is proper because, if the driver did the acts set out, he violated the positive terms of Section 8385, Revised Statutes Missouri 1939, Mo.R.S.A., and was negligent regardless of the degree of care he may have exercised. Plaintiff cites cases holding that violation of the positive terms of a statute, in and by itself, constitutes negligence.
We have no criticism of those cases, but they are not in point here because some of the acts set out in instruction No. 1 are not forbidden, under all circumstances, by Section 8385. The case cited on this point by plaintiff which comes more nearly to supporting his contention than any other case cited by him is Scott v. Kansas City Public Service...
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...and they are not necessarily preclusive of common law negligence. Gooch v. Avsco, Inc., Mo., 337 S.W.2d 245, 251; Terrell v. McKnight, 360 Mo. 19, 226 S.W.2d 714, 716-717. And even if the statute did not require such as a minimal precaution, defendant still would be subject to the general r......
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