Thomas v. Wade

• Decision Date: 14 November 1962
• Docket Number: No. 48688,48688
• Citation: 361 S.W.2d 671
• Parties: Debra THOMAS, a Minor, by and through Betty Thomas, her mother and next friend, Appellant, v. James WADE, Respondent.
• Court: Missouri Supreme Court

Page 671

361 S.W.2d 671

Debra THOMAS, a Minor, by and through Betty Thomas, her mother and next friend, Appellant, v. James WADE, Respondent.

No. 48688.

Supreme Court of Missouri, En Banc.

Nov. 14, 1962.

James Hullverson, Corinne Richardson, Hullverson, Richardson & Hullverson, St. Louis, for appellant.

Gray & Jeans, James W. Jeans, St. Louis, for respondent.

STOCKARD, Commissioner.

Plaintiff has appealed from an adverse judgment entered on a jury verdict for defendant in her suit for $35,000 for personal injuries. She contends that an instruction given at the request of defendant was erroneous and that prejudicial error resulted in the admission of certain evidence.

Shortly after noon on July 28, 1959, Debra Thomas, age 23 months, was running westward on the sidewalk in the 2600 block of Pine Street, St. Louis, Missouri. At about the middle of the block she turned and ran into the street at a 45-degree angle and into the right side of defendant's automobile which was traveling westward about 20 or 30 miles an hour. Defendant did not see Debra before the accident, but stopped his automobile immediately when he heard a 'thump.'

Plaintiff submitted her case to the jury on two separate verdict directing instructions. Instruction No. 2, commonly called a 'lookout' instruction, advised the jury that it was the duty of the defendant to exercise the highest degree of care to keep and maintain a careful and vigilant watch and lookout both ahead and to the side of his intended path not only for adults but for small children who might thoughtlessly or impulsively run toward the path or side of his car. It then submitted that if the jury found defendant was driving his automobile west on Pine Street and there were no vehicles parked between his automobile and where Debra was running on the sidewalk; that Debra turned and ran in a diagonal direction into the street until she came in contact with the right front side of defendant's automobile and defendant never saw her before the collision; that defendant failed to exercise the highest degree of care to keep a careful and vigilant lookout for persons, including children, 'who might be approaching his path and that had he exercised such care he could have seen [Debra] in time, by the exercise of the highest degree of care, to have avoided her injury;' then if the jury found that such failure on the part of the defendant to keep such a careful and vigilant lookout was either the sole cause or one of the contributing causes of injury to Debra, their verdict should be in her favor.

The other verdict directing instruction for plaintiff, Instruction No. 3, first hypothesized the facts as set out in the previous instruction. It then submitted that if the jury found that by the exercise of the highest degree of care the defendant 'could have seen the plaintiff running into the street and into the path of his automobile' in time, by the exercise of the highest degree of care, to have either stopped his automobile or to have slackened its speed and turned aside or to have sounded a signal of his approach and movement, and by doing any one of those things he could have avoided injury to Debra but failed to do so, then if such failure directly contributed to cause injury to Debra the verdict should be in her favor even if some act or failure to act on her part or on the part of her parents also contributed to cause her injury.

The instruction submitted at the request of defendant and of which plaintiff complains states that 'under the law there was no duty on the part of Mr. Wade to stop his automobile or slacken its speed and turn it aside or sound a warning of his approach and movement until he knew, or, in the exercise of the highest degree of care, should have known, that there was danger of his automobile coming into contact with the plaintiff.' It then submitted that if the jury found from the evidence that after defendant knew, or in the exercise of the highest degree of care should have known, 'that there was danger of the plaintiff coming in contact with his automobile, it was then too late, if you so find, for him, by the exercise of the highest degree of care, either to have stopped his automobile or to have slackened its speed and turned aside his automobile, or to have sounded a signal of his approach and movement and thus and thereby have avoided the collision,' their verdict should be for defendant.

Plaintiff asserts that Instruction No. 4 'wholly ignored defendant's duty to keep a lookout;' that it told the jury that 'the only duty owed by the defendant was to act after a 'danger' of collision arose;' and that it 'erroneously confined defendant's duty * * * to act at such time as there was actual 'danger' of plaintiff coming into contact with defendant's vehicle, wholly ignoring defendant's duty to anticipate the possibility of danger and injury to plaintiff.'

In this relatively simple and easily understood factual situation plaintiff has submitted two verdict directing instructions which admittedly submit different theories of negligence but are in some respects overlapping. The basic submission of each is the failure to see and to take some action. The 'lookout' instruction in some respects necessarily constitutes a 'roving commission' in that the jury is authorized to find 'any means supported by the evidence by which the driver * * * could have avoided the collision' without the instruction hypothesizing those means. Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 25. There is no contention that the evidence supports any means other than those referred to in defendant's Instruction No. 4, which includes at least one more than those hypothesized in plaintiff's Instruction No. 3.

Plaintiff asserts that defendant's duty to maintain a lookout as submitted in Instruction No. 2 'encompasses the obligation to see the plaintiff on the sidewalk' when he had a clear view. Apparently the plaintiff would include the duty to see a person walking or standing on a sidewalk even though not moving toward the street. Under certain factual situations that may be so because the duty of a motorist to maintain a vigilant lookout requires that he 'look in such observant manner as to enable him to see what one in the exercise of the highest degree of care for himself and others could and should have seen under similar circumstances.' Hildreth v. Key, Mo.App., 341 S.W.2d 601; Riley v. Young, Mo.App., 218 S.W.2d 805, 808; Anthony v. Morrow, Mo.App., 306 S.W.2d 581, 586. Plaintiff apparently admits, however, that something more than failure to see is required to result in actionable negligence because in Instruction No. 2 she submitted the failure to keep a careful and vigilant lookout for persons 'who might be approaching his path' and that if defendant had maintained that lookout he could 'have avoided her injury.' It is obvious that a violation by the operator of a vehicle of the duty to maintain a vigilant and careful lookout in failing to see a person not directly in but close to his path and who was moving farther away from the path of the vehicle, while perhaps theoretically constituting negligence, would not be actionable negligence. Therefore, when we analyze a 'lookout' instruction, at least when applied to the situation where the injured party was not directly in the path of the vehicle when the duty to see first arose, it actually submits failure to see and failure to avoid injury by 'any means supported by the evidence.' Moore v. Ready Mixed Concrete Co., supra. The question then is, when does the duty to act arise? It is not necessarily at the exact time there was a duty to see. Under the facts of this case, if the duty to see and the duty to act arose at the precise time, then under plaintiff's theory every motorist driving on a city street would have to slow, stop, warn, or slacken his speed every time he saw or should have seen a child or elderly person, or possibly any person, on the sidewalk even though not approaching the street or the path of the vehicle. While it may be stated in various ways, and possibly in ways better than the manner it was expressed in Instruction No. 4, the duty to act when one does or should see arises at the time that a person, in the exercise of the highest degree of care, knew or should have known that there was danger, that is, a likelihood of injury. See the discussion of this issue in Nydegger v. Masson, Mo., 315 S.W.2d 816, 819. In the case of a child, that danger or likelihood of injury might well be at the time the child turned toward the street, or possibly even before that time depending upon all the circumstances. Plaintiff submitted that defendant should have seen Debra at the time she 'might be approaching his path' and that he then should have acted. In other words, defendant should have acted when a person, in the exercise of the highest degree of care, would have reason to anticipate danger. This is what defendant submitted in the converse. It was for the jury to determine when that situation came into existence from all the facts and circumstances.

The basic and essential issue here presented is what would a jury understand Instruction No. 4 to mean in the circumstances of reading it together with plaintiff's two verdict directing instructions. All three instructions involved the duty to see and then to take action. We think any reasonably intelligent jury would not have been misled by the language used in Instruction No. 4, including the word 'danger,' any more than by the use of the term 'might be approaching' used in plaintiff's Instruction No. 2. While we...