Wells v. Raber

• Decision Date: 12 November 1942
• Docket Number: 37982
• Citation: 166 S.W.2d 1073,350 Mo. 586
• Parties: Ray Wells, an Infant, by Thelma Wells, Next Friend, Appellant, v. Ann Raber and Joseph Raber
• Court: Missouri Supreme Court

166 S.W.2d 1073

350 Mo. 586

Ray Wells, an Infant, by Thelma Wells, Next Friend, Appellant, v. Ann Raber and Joseph Raber

No. 37982

Supreme Court of Missouri

November 12, 1942

Rehearing Denied January 4, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Victor Packman and Harold Kaminsky for appellant.

(1) Instruction 5, given at the request of the defendants, was erroneous and prejudicial to the plaintiff for the following reasons: (a) It does not submit to the jury the specific facts which would show lack of negligence on the part of the defendant, Ann Raber. State ex rel. Snider v. Shain, 137 S.W.2d 527, 345 Mo. 950; Long v. Mild, 149 S.W.2d 853, 347 Mo. 1002. (b) The instruction made use of the phrase "without negligence on her part" without defining the word "negligence" or specifying anywhere in the instruction what would constitute negligence. Raybourn v. Phillips, 140 S.W. 977, 160 Mo.App. 534; Magrane v. St. Louis & S. F. Ry. Co., 81 S.W. 1158 183 Mo. 119; Stanich v. Western Union Telegraph Co., 153 S.W.2d 54; State ex rel. Snider v. Shain, supra. (c) The instruction permitted the jury to absolve defendant from liability if the defendant Ann Raber did not see the plaintiff, whereas her duty to exercise the highest degree of care was not limited to what she saw, but was co-extensive with what she could have seen and known and could have done, considering the factors of position, speed, location, warning and circumstances then prevailing. Martin v. Fehse, 55 S.W.2d 440, 331 Mo. 861; Borgstede v. Waldbauer, 88 S.W.2d 373, 337 Mo. 1205; Shields v. Keller, 153 S.W.2d 60. (d) The instruction was misleading and not consistent with the evidence, as evidence shows that there were no sheds or buildings which prevented the defendant Ann Raber from seeing the plaintiff after he had reached a position of imminent peril. Shields v. Keller, 153 S.W.2d 60. (e) The instruction was indefinite in using the phrase "too late" and in failing to specify in what respect it was too late for Ann Raber to avoid his injury, whether by swerving or attempting to stop or by slackening speed or by warning; further, the instruction fails to hypothesize whether it was too late, in the exercise of the highest degree of care, with the facilities at hand to avoid injuring the plaintiff after he was in a position of imminent peril. Shields v. Keller, 153 S.W.2d 60. (f) It emphasized lack of negligence in "operating" the car rather than the duty of lookout on the part of the defendant and removed from the jury's attention and consideration elements which it had to consider in order to warrant a verdict in favor of the defendant, i. e., require the jury to find that the defendant, Ann Raber, after she saw or should have seen the plaintiff in a position of imminent peril, did not have time thereafter in the exercise of the highest degree of care to swerve her car or slacken speed or sound a warning or stop in time, and by so doing avoid injuring plaintiff. State ex rel. Snider v. Shain, 137 S.W.2d 527; Shields v. Keller, 153 S.W.2d 60. (2) Instruction 7, given at the request of the defendants, was erroneous and prejudicial to the plaintiff for the following reasons: (a) It is misleading and abstract. The instruction does not particularize any facts essential for either a sole cause or converse instruction. Stanich v. Western Union Telegraph Co., 153 S.W.2d 54; Boland v. St. Louis-S. F. Ry. Co., 284 S.W. 141; State ex rel. v. Allen, 124 S.W.2d 1080, 344 Mo. 66. (b) The instruction injects contributory negligence by implication into a case submitted solely on the humanitarian doctrine and contains a reference which constituted a comment on the evidence, as it implies that plaintiff was guilty of negligence in the use of the language "was not guilty of any negligence contributing to the collision." State ex rel. v. Allen, 124 S.W. 1080; Martin v. Fehse, 55 S.W.2d 440, 331 Mo. 861; Borgstede v. Waldbauer, 88 S.W.2d 373. (c) The instruction refers to negligence as defined in other instructions, but negligence was not defined in other instructions in the case. The jury was thus given a roving commission to use its own judgment as to what the instruction was referring to. Raybourn v. Phillips, 140 S.W. 977, 160 Mo.App. 534; Magrane v. St. Louis Suburban Ry. Co., 183 Mo. 119, 81 S.W. 1158; Long v. Mild, 149 S.W.2d 853, 347 Mo. 1002. (d) It is misleading and ambiguous. One cannot tell what the phrase "if any" modified. The phrase "such negligence" preceding it is also ambiguous as it is uncertain whether it refers to "negligence contributing" or mere "negligence." Landon v. United Rys. Co. of St. Louis, 237 S.W. 496.

George A. Hodgman and Robert S. Lindsey for respondents.

(1) The court did not err in giving Instruction 5. (a) It is essentially the same as an instruction approved by this court in a case in which there was evidence a six-year-old boy ran out into a street from between two parked automobiles and collided with a moving automobile. Oliver v. Morgan, 73 S.W.2d 993. (b) It is not a sole-cause instruction and need not meet the fact hypothesizing requirements of such an instruction. The instruction submits one element of a humanitarian submission, that of being able to see and discover plaintiff in a position of peril. (c) Failure to define term "negligence" is not reversible error. State ex rel. Greer v. Cox, 274 S.W. 373; Sweeney v. Kansas City Cable Ry. Co., 150 Mo. 385, 51 S.W. 682; Perry v. Missouri-Kansas-Texas R. Co., 340 Mo. 1052, 104 S.W.2d 332. (d) Plaintiff's instruction used term "negligence" and any possible error would be mutual and neither party can complain. Woods v. Southern Ry. Co., 73 S.W.2d 374; Cole v. St. Louis-S. F. Ry. Co., 332 Mo. 999, 61 S.W.2d 344; Silsby v. Hinchey, 107 S.W.2d 812. (e) Plaintiff cannot complain of failure to define "negligence," absent a request to court for clarifying instruction. Engelman v. Railway Express Co., 340 Mo. 360, 100 S.W.2d 540; State ex rel. American School of Osteopathy v. Daues, 322 Mo. 99, 18 S.W.2d 487; Williams v. Guyot, 344 Mo. 372, 126 S.W.2d 1137. (f) A defendant is not required to include in his instructions facts relied upon by plaintiff, nor to insert directions on some issue or theory looking to a verdict for adversary, hence failure to include plaintiff's theory of accident is not error. Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562. (g) The instruction does not contain vices claimed by plaintiff, and cases cited by plaintiff are not in point. Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; cases cited in respondent's brief. (2) The court did not err in giving Instruction 7. (a) Instruction 7 is not a sole-cause instruction and sole-cause cases cited by appellant are not applicable. (b) Mere nondirection is not misdirection, and nondirection is not error unless specific instructions are requested and refused. Plaintiff, therefore, cannot complain of general nature of instructions, nor of omission of nonvital facts, nor of omission of facts relied upon and submitted by plaintiff. 14 R. C. L. 795, 798; 64 C. J. 841; Morgan v. Mulhall, 214 Mo. 451, 114 S.W. 4; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Block v. U.S. F. & G. Co., 316 Mo. 278, 290 S.W. 429; Berryman v. Southern Surety Co., 285 Mo. 379, 227 S.W. 96; Soureal v. Wisner, 321 Mo. 920, 13 S.W.2d 548; Norris v. St. Louis, I. M. & S. Ry. Co., 239 Mo. 695, 144 S.W. 783; Pennock v. Dialogue, 2 Peters, 1, 7 L.Ed. 327. (c) Appellant's cases to effect it is error to inject issue of contributory negligence are not applicable because instruction does not deal with nor inject contributory negligence. The jury was told in another instruction that plaintiff's contributory negligent would not bar recovery. (d) Failure to define term "negligence" is not reversible error. See cases under (1), (c), (d) and (e). (3) Charge to jury will be read as a whole, and error not affecting substantial rights of party complaining will be disregarded on appeal. McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666; State ex rel. Mo. Mutual Assn. v. Allen, 336 Mo. 352, 78 S.W.2d 862, l. c. 865; R. S. 1939, sec. 1228.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Plaintiff, Ray Wells, an infant, filed this suit by Thelma Wells his next friend, against respondents to recover $ 15,000.00 as damages for personal injuries alleged to have been sustained in a collision between plaintiff and defendants' car. A trial by jury resulted in a verdict for the defendants. From the judgment entered plaintiff appealed.

The collision occurred in a public alley located west of Jefferson avenue between Armand place and Shenandoah avenue in the City of St. Louis, Missouri. Plaintiff was eight years of age at the time, and he and other boys about the same age were playing a game called "Knights." The boys were divided into two teams. Each boy carried a stick and a basket or a lid of a refuse can which was used as a shield. If a boy's body was touched with a stick held by an opponent he was considered dead until the next game. Plaintiff was carrying a lid of a refuse can, and immediately before the collision was being chased by a boy of the opposite team. Plaintiff attempted to escape by running through a passageway which ran through a shed to the public alley in question. As he emerged from the opening into the alley the collision with the Raber car occurred. The defendant, Ann Raber, was driving her father's car delivering bakery products. The dispute in the evidence was as to the point of collision and the manner in which it occurred....