White v. Hasburgh

• Decision Date: 09 January 1939
• Docket Number: No. 19249.,19249.
• Citation: 124 S.W.2d 560
• Parties: WHITE v. HASBURGH.
• Court: Missouri Court of Appeals

124 S.W.2d 560

WHITE v. HASBURGH.

No. 19249.

Kansas City Court of Appeals. Missouri.

January 9, 1939.

Rehearing Denied January 3, 1939.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be reported in State Reports."

Action by B. F. White against John J. Hasburgh for injuries sustained when struck by an automobile driven by defendant. From a judgment for plaintiff, defendant appealed, after which plaintiff died and the cause was revived in the name of his wife, Mae White, as administratrix of his estate.

Judgment affirmed.

Cooper, Neal Kemp & Sutherland, of Kansas City, for appellant.

Trusty & Pugh, of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages brought by one B. F. White for personal injuries to himself. He recovered a verdict and judgment in the sum of $2,500 and defendant has appealed. Since the appeal was taken the said B. F. White has departed this life and the cause has been revived in the name of his wife, Mae White, as administratrix of his estate.

Deceased was injured about eight p. m. of the evening of December 14, 1935, while he was crossing Alameda Road in the Plaza District of Kansas City. Alameda Road runs approximately east and west and Central Street, an intersecting thoroughfare, north and south. Deceased was a night watchman in the Plaza District. While in the performance of his duties, and walking north along the sidewalk on the east side of Central Street, and in the act of crossing Alameda Road, deceased was struck by an automobile being driven eastwardly on Alameda Road by the defendant. The casualty occurred in a busy part of the city and there was considerable traffic on both Central Street and Alameda Road. In crossing Alameda Road, deceased was walking slowly within the confines of a lane, which had been marked off for pedestrian traffic. There was a safety island situated in this lane about 28 feet north of the south curb of Alameda Road. Deceased was struck when he reached a point about 3 feet from the safety island.

When defendant reached the west side of Central Street he slowed his car almost to a stop and then crossed that street at a rate of speed of approximately 12 to 14 miles per hour. There was another car preceding him in the same direction immediately to the south of defendant's car. This car stopped before proceeding across Central Street and then crossed that street at a rate of speed of 5 to 7 miles per hour. It started across Central Street a little ahead of defendant's car but the latter over-took it and passed it, the rear of defendant's car being about opposite the front end of the other car when the collision with deceased occurred. Deceased was struck by the bumper of defendant's car about in front of the left front wheel. Defendant gave no warning signal. Defendant stopped his car approximately when he struck the deceased. When the car stopped deceased was lying on the street about 3 to 5 feet in front of defendant's car.

The negligence charged in the petition was a failure to keep and maintain a reasonably sufficient lookout, failure to keep the automobile under reasonable control, failure to warn, negligent speed and negligence under the Humanitarian Rule. The answer, among other things, pleaded contributory negligence.

The case was submitted to the jury by the deceased solely upon the Humanitarian Doctrine. There is no contention that there was insufficient evidence to go to the jury and it is unnecessary to state the facts surrounding the collision in greater detail than above.

The first point raised by the defendant is that the court erred in giving Instruction No. I, on the part of the deceased, which reads as follows: (For convenience we have numbered the paragraphs in the instruction).

Par. 1 "If you find from the evidence that on the occasion in question the plaintiff was walking across Alameda Road from the south side northward towards the north side, and that while he was so doing he was struck by the automobile being driven by the defendant and that he was injured thereby; and

Par. 2 "If you further find from the evidence that while the plaintiff was thus crossing the street the defendant's automobile came from the west, and that as it did so a position of imminent and dangerous peril arose to the plaintiff and he was in imminent peril of being injured by said automobile, and if you further find from the evidence that the plaintiff did not actually know of such imminent and dangerous peril in time for him to escape such peril by the use of ordinary care; and

Par. 3 "If you further find from the evidence that the defendant, Mr. Hasburgh, knew, or if you find from the evidence that by the exercise of the highest degree of care in the maintenance of a vigilant lookout he could, or should, have known, that such situation of imminent and dangerous peril to plaintiff was arising and that the plaintiff would be in such imminent and dangerous situation of peril and would be struck by said automobile and would be injured by said automobile, unless he was given reasonable and timely warning of such imminent and dangerous peril, or unless said automobile was stopped, or unless the speed was sufficiently slackened, or unless the course of said automobile was changed; and

Par. 4 "If you further find from the evidence that by exercising the highest degree of care in the maintenance of such careful lookout the defendant could have known, or should have known, of such imminent and dangerous peril and the facts and conditions in the two preceding paragraphs of this instruction, if from the evidence you so find they existed, in time thereafter, by using the highest degree of care in the use of the means at his command and with reasonable safety to himself and all others, to have

Par. 5 "(1) Given the plaintiff such reasonable and timely warning, and that he did not do so, and that if it had been given the plaintiff would not have been injured; or

Par. 6 "(2) That defendant thereafter had time by the use of such care in the use of the means at his command and with reasonable safety to himself and the automobile and persons in it, to have thereafter sufficiently slackened the speed of said automobile, and that he did not do so, and failed to use such care to do so, and that if it had been done plaintiff would not have been struck; or

Par. 7 "(3) In time thereafter by using such care and the means at his command and with reasonable safety to himself and his car and others to have stopped said automobile, and that he did not do so and failed to use such care to do so; or

Par. 8 "(4) In time thereafter by using such care and the means at his command, and with safety to any cars or persons on the street, and with safety to himself and his car, to have changed the course of his car, and that he failed to do so and failed to use such care to do so, and if he had done so the plaintiff would not have been injured, and

Par. 9 "If you further find from the evidence that the defendant failed in any one or more of the four respects above enumerated and that in so failing he failed to exercise the highest degree of care, then you are instructed the defendant was guilty of negligence; and if you further find from the evidence that such negligence of the defendant, if you so find he was so negligent, directly and solely caused the plaintiff to be struck and to be injured, then it would become your duty to render a verdict for the plaintiff, and against the defendant; or

Par. 10 "If you find from the evidence that such negligence of said defendant, if you so find the defendant was so negligent, directly concurred, or directly combined and joined with any fault or act or omission, if you find there was any fault or act or omission of the plaintiff, Mr. White, in directly causing said automobile to come into collision with the plaintiff, and that he was injured thereby, then it would be your duty to render a verdict in favor of Mr. White, and against the defendant, Mr. Hasburgh."

It is insisted that this instruction is erroneous "due to its unnecessary length, incoherence and repitition of matters therein". The instruction is quite long. There is no reason why the facts contained therein could not have been submitted in much fewer words. However, it has never been held that the mere length of an instruction renders it erroneous. Norton v. Wheelock, 323 Mo. 913, 23 S.W.2d 142, 148. While the instruction contains some repetitions, mere repetition in an instruction is not error. Rath v. Knight, Mo.Sup., 55 S.W.2d 682, 684; Hulsey v. Tower Grove Quarry & Constr. Co., 326 Mo. 194, 30 S.W.2d 1018, 1028.

It is claimed that the instruction tends to unduly emphasize the question of imminent and dangerous peril and that the defendant had time by the use of required care to have either warned plaintiff, slowed, stopped or swerved his car. The instruction is unusual in its phraseology but a reading of it shows the theory of its author in phrasing it as it is. The first paragraph has the jury find that, deceased was struck by defendant's automobile. The second paragraph covers the matter of deceased's position of peril and lack of knowledge thereof. The third paragraph submits what the defendant knew, or should have known, in reference to deceased's situation. Paragraphs 4, 5, 6, 7 and 8, submit what defendant could have done to have averted the casualty. Paragraph 8 submits the effect of the failure of defendant to have done what he could have under the circumstances. Paragraph 10 is on the effect of contributory negligence on the part of the deceased.

While, these various matters need not have been covered so extensively and by so many paragraphs in the instruction, and could have been submitted in much fewer words, we do not think that there was such emphasis placed upon the matters mentioned supra as to lead the jury to give undue weight to them.

We have examined the case of Fantroy v. Schirmer, Mo.App., 296...