Warren v. Giudici

• Decision Date: 27 May 1932
• Docket Number: 30117
• Parties: Flora Warren v. C. Giudici, Appellant
• Court: Missouri Supreme Court

50 S.W.2d 634

330 Mo. 483

Flora Warren v. C. Giudici, Appellant

No. 30117

Supreme Court of Missouri

May 27, 1932

Appeal from Butler Circuit Court; Hon. Chas. L. Ferguson Judge;

Affirmed.

Henson & Woody for appellant.

(1) Instruction P-1, given at the request of plaintiff, is erroneous because it assumes, as a fact, that defendant, at the time of the accident, was attempting to pass an automobile going in the same direction that he was proceeding. Crowe v. Railroad, 212 Mo. 589; Christian v. McDonnell, 127 Mo.App. 630; Williamson v. Railroad Co., 139 Mo.App. 481; Wilson v. St. Joseph, 139 Mo.App. 557; State ex rel. v. Trimble, 298 Mo. 418, 250 S.W. 393; Alexander v. Barnes Grocer Co., 7 S.W.2d 373. (2) Plaintiff's Instruction P-2 is erroneous in that it tells the jury no duty devolves upon a guest riding in an automobile who has no control over and who is not directing the operation thereof. Lewis v. K. C. Public Service Co., 17 S.W.2d 359; Burton v. Pryor, 198 S.W 1117; Leapard v. Railroad, 214 S.W. 268; Fechley v. Traction Co., 119 Mo.App. 358; Irwin v McDougal, 274 S.W. 923; State ex rel. v. Haid, 25 S.W.2d 92; Birmingham Railroad, etc., v. Barranco (Ala.), 84 So. 839; Barrett v. Railroad, 81 Iowa 642, 162 N.W. 43; Opp v. Pryor, 294 Ill. 246, 128 N.E. 580; Pienta v. Railroad, 284 Ill. 246, 120 N.E. 1; Brommer v. Railroad, 179 F. 577; Davis v. Railroad Co., 159 F. 10; Parmenter v. McDougal (Cal.), 156 P. 460; Clark v. Com. Co. (Conn.), 76 A. 523; Grifenham v. Chicago Rys. Co. (Ill.), 132 N.E. 790; Graham's Admr. v. Railroad (Ky.), 215 S.W. 60; Milner's Admr. v. Railroad (Ky.), 221 S.W. 207; Blanchard v. Railroad (Me.), 100 A. 666; Kamillowtz v. Power & Light Co. (Me.), 109 A. 487; Sherris v. Railroad (Mont.), 165 P. 1005; Robison v. Navigation Co. (Ore.), 176 P. 594; Martin v. Railroad (Pa.), 108 A. 631; Wentworth v. Waterbury (Vt.), 96 A. 334; Sadler v. Railroad (Wash.), 203 P. 10; 18 A. L. R. 309; State ex rel. Wells v. Haid et al., 25 S.W.2d 92; Smith's Admr. v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573; Curtis v. Capitol Stage Lines, 27 S.W.2d 747. (3) Said instruction is further erroneous because it authorizes the jury to find that plaintiff was exercising ordinary care for her own safety at the time of the accident when there is no evidence in the record upon which to base such finding. Opp v. Pryor, 294 Ill. 246, 128 N.E. 580; Holloway v. Barnes Grocer Co., 15 S.W.2d 921; Kuhlman v. Transit Co., 307 Mo. 707, 271 S.W. 797; Schumacher v. Breweries Co., 247 Mo. 141, 162; First Natl. Bank v. Equipment Co., 285 S.W. 779; Adams v. Kenrick, 11 S.W.2d 17, 25; Hawes v. Insurance Co., 7 S.W.2d 479; State ex rel. v. Haid, 25 S.W.2d 92; McDaniel v. Business Men's Assn., 6 S.W.2d 337. (4) This instruction is further erroneous because it is in direct conflict with Instruction 10 given at the request of defendant. Instruction 10 correctly states the law applicable to the duty of a guest riding in an automobile. Lewis v. Service Co., supra; Burton v. Pryor, supra; Rappaport v. Roberts, 203 S.W. 676; Smith's Admr. v. Water Mills Co., 238 S.W. 573; Fechley v. Traction Co., 119 Mo.App. 358; Phillips v. Foundry Co., 274 S.W. 963; Woosley v. Railroad, 274 S.W. 871; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 724; Ranney v. Lewis, 182 Mo.App. 58; Anderson v. Sutton, 308 Mo. 406, 275 S.W. 32. (5) An erroneous instruction which is in direct conflict with a proper instruction given at the request of the other party is not cured by the giving of the proper instruction. Ward v. Stultzman, 212 S.W. 65, and cases cited; Phillips v. Am. Car & Foundry Co., 274 S.W. 963; Bank v. Richards, 273 S.W. 415; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Gordy v. Coal Co., 151 Mo.App. 455; Gray v. Nations, 23 S.W.2d 1080; Alexander v. Barnes Grocer Co., supra. (6) Plaintiff and A. Carty, the driver of the car in which she was riding, were engaged in a mutual enterprise, were on a common mission, and the negligence of Carty in the operation of the car is imputable to plaintiff. Roland v. Anderson, 282 S.W. 752; Tannerhill v. Railroad, 213 S.W. 822; Rose v. Wells, 266 S.W. 1015; Dunlap v. Transit Co. (Pa.), 93 A. 873; Wentworth v. Town of Waterbury (Vt.), 96 A. 334; Davis v. Ry. Co., 159 F. 10; Martin v. Railroad (Pa.), 108 A. 631; McLaughlin v. Railroad, 252 Pa. 32, 97 A. 107; Gersman v. Railroad, 229 S.W. 167; O'Brien v. Walsden, 270 P. 304; Perrin v. Wells, 22 S.W.2d 863. (7) Plaintiff was guilty of negligence contributing to her injury and is not entitled to recover. Carlton v. Stauck, 38 S.W.2d 505; Lewis v. Public Service Co., 17 S.W.2d 362; Irwin v. McDougal, 217 Mo.App. 645, 274 S.W. 923; Boland v. Railroad, 284 S.W. 141; Smith v. Water Mills Co., 215 Mo.App. 129, 238 S.W. 573. (8) The verdict of the jury is against the overwhelming weight of the evidence, and is contrary to and in direct conflict with the physical facts as shown by all the evidence. Horn v. Rhodes, 296 S.W. 389; Drake v. Rowan, 216 Mo.App. 663, 272 S.W. 101; Peak v. Judd, 278 S.W. 1044; Williams v. Collins, 180 Mo.App. 146; Burkett v. Gerth, 253 S.W. 199; Scroggins v. Met. St. Ry. Co., 138 Mo.App. 215; Lang v. Met. St. Ry. Co., 151 Mo.App. 500; Spiro v. Transit Co., 102 Mo.App. 250; Spohn v. Railroad, 87 Mo. 74; Payne v. Railroad, 136 Mo. 562; Nugent v. Milling Co., 131 Mo. 241; Sexton v. Street Railway, 245 Mo. 254; Roseman v. U. Rys. Co., 251 S.W. 104; Harper v. Railroad, 186 Mo.App. 296. (9) Remarks of counsel, not warranted by the testimony, calculated to arouse hatred and prejudice against a litigant, are highly prejudicial, tend to a miscarriage of justice, and constitute reversible error. Monroe v. Railroad, 297 Mo. 633, 249 S.W. 644; Beck v. Railroad, 129 Mo.App. 7; Bishop v. Hunt, 29 Mo.App. 373; O'Harra v. Lamb Const. Co., 197 S.W. 163; Warren v. Giudici, 9 S.W.2d 541; Jackman v. Railroad, 200 Mo.App. 368, 206 S.W. 244; Nelson v. Heine Boiler Co., 20 S.W.2d 906; Norris v. Railroad, 239 Mo. 695; Busse v. White, 302 Mo. 672, 259 S.W. 458; Haake v. Milling Co., 168 Mo.App. 177; State v. Cole, 264 S.W. 873. (10) The verdict of the jury is excessive, and is undoubtedly the result of passion, prejudice and misdirection. Briscoe v. Railroad, 222 Mo. 104; Teddick v. Car Co., 125 Mo.App. 24; Adams v. Railroad, 175 Mo.App. 5.

Lawrence E. Tedrick for respondent.

Plaintiff's Instruction P-1 does not assume the fact that "defendant was attempting to pass an automobile traveling in the same direction that he was traveling," but requires the jury to find that he was so doing. The part of the instruction complained of is as follows: ". . . and if you further find that the defendant, C. Giudici, negligently and carelessly drove said automobile to the left of the center of said street in attempting to pass another automobile which was traveling in the same direction as he was traveling, and meeting the automobile in which plaintiff was riding, if you find there was such automobile present at said time and place. . . ." Under this instruction, the jury was required to find that the situation existed as expressed in the first italicized clause, which included the fact that "defendant was attempting to pass another vehicle which was traveling in the same direction." This instruction is identical with the one submitted on a former trial of this case, except for the addition of the clause "unless you further believe and find from the evidence, that plaintiff, herself, was guilty of negligence, and that said negligence, if any, caused or contributed to cause her injuries, if any," and was approved by the Springfield Court of Appeals. Warren v. Giudici, 9 S.W.2d 541. This instruction is in proper form and correctly states the law. Ford v. Dowell, 243 S.W. 366; State ex rel. Dowell v. Allen, 250 S.W. 580, and is not erroneous as assuming facts. Jackson v. Anderson, 273 S.W. 429; Crowley v. Am. Car & Foundry Co., 279 S.W. 212; Peters v. Hooven & Allison Co., 281 S.W. 71; Agee v. Herring, 221 Mo.App. 1022, 298 S.W. 250; Beckerleg v. Locomotive Engineers Ins. Co., 274 S.W. 917; Irwin v. McDougal, 217 Mo.App. 645, 274 S.W. 923; Speer v. Railroad Co., 282 S.W. 131; Courtney's Estate v. Lanznar's Estate, 296 S.W. 269; Wyse v. Miller, 2 S.W.2d 806.

OPINION

Gantt, P. J.

Action to recover for personal injuries sustained by plaintiff when an automobile in which she was riding collided with an automobile owned and driven by defendant. Judgment for $ 10,000, and defendant appealed.

The petition alleged that plaintiff was riding as a guest; that defendant negligently failed to drive his automobile in a careful manner and negligently drove same to the left of the center of the street in attempting to pass another automobile driving in the same direction, thereby causing the collision and plaintiff's injuries.

The answer was a general denial. It further alleged that plaintiff and the driver of the automobile in which she was riding were guilty of certain acts of negligence in the operation, management and control of same, which negligence solely caused the collision and plaintiff's injuries.

They collided in rounding a curve in North Main Street in Poplar Bluff. The collision was in front of the Meredith home, which faces the inside of the curve. At the time the Meredith car was parked in front of the home and close to the curbing on the inside of the curve. As they approached the point of collision, it was the duty of the driver of the automobile in which plaintiff was riding to drive on the outside curve, and it was the duty of defendant to drive on the inside of the curve. The outside of the curve was to plaintiff's right, and the isnide of the curve was to defendant's right.

The evidence for plaintiff tended to show the following Plaintiff resided at Williamsville. She, accompanied by her...