White v. Rohrer

• Decision Date: 12 April 1954
• Docket Number: No. 43725,No. 2,43725,2
• Citation: 267 S.W.2d 31
• Parties: WHITE v. ROHRER
• Court: Missouri Supreme Court

Page 31

267 S.W.2d 31

WHITE v. ROHRER.

No. 43725.

Supreme Court of Missouri, Division No. 2.

April 12, 1954.

Ben W. Swofford, Robert A. Schroeder, John C. Milholland, Thomas B. Phillips, Kansas City, Swofford, Schroeder & Shankland, Kansas City, of counsel, for appellant Louis White.

David R. Hardy, David H. Clark, and Sebree, Shook, Hardy & Ottman, Kansas City, for respondent Walter Rohrer.

BARRETT, Commissioner.

In this action to recover $15,000 damages for personal injuries resulting from a rear-end automobile collision the jury returned a verdict in favor of the defendant. The issues involved upon the trial of the case, and upon this appeal by the plaintiff, are clearly made to appear from the pleadings and the given instructions. In his petition the plaintiff, Louis White, alleged that as he was driving his 1942 Hudson Club Coupe in a southerly direction across the A. S. B. Bridge, on November 20, 1951, his automobile 'was brought to a complete and full stop and had remained stopped for a period of time' when the defendant, Walter Rohrer, driving a 1951 Ford, negligently collided with the rear of his automobile. In his answer the defendant, Rohrer, plead that White was guilty of contributory negligence in several particulars, among others, that 'Plaintiff negligently brought his said automobile to a sudden stop or reduction of speed without giving an adequate warning signal thereof to automobiles following plaintiff, and particularly to this defendant,' and, that 'Plaintiff negligently failed to give an adequate warning to the operators of other automobiles, and particularly to this defendant, of his intention to suddently stop or reduce the speed of plaintiff's said automobile.' In his principal recovery instruction White hypothesized that 'at that time and place plaintiff brought his automobile to a stop in traffic and that at said time and place defendant Rohrer did not exercise the highest degree of care in keeping a lookout to observe the car ahead and its movements, and in keeping his car under control so that he would not run into the car ahead as it slowed down or stopped, and * * * that defendant Rohere did not exercise the highest degree of care to keep his automobile at a sufficient distance behind plaintiff's automobile so as to enable him to avoid colliding with plaintiff's automobile as it stopped, * * *.' On behalf of the plaintiff there was also an instruction upon the subject of burden of proof as to contributory negligence, and, in that connection, an instruction on a mechanical or electrical signaling device. The latter instruction, in conformity with the statute, V.A.M.S. Sec. 304.020(11), informed the jury that if a motor vehicle is equipped with a mechanical or electric signaling device 'which will display a signal plainly visible from the rear and indicating intention to turn or stop, or that the speed of the motor vehicle is being slowed, that signals with the hand and arm need not be given.' This instruction permitted the jury to find, if White's automobile was equipped with an electric signal light in good working order 'which would display a signal plainly visible from the rear and indicating intention to stop,' and that he 'so operated his automobile as to give a signal to stop by means of such electrical signal * * * and * * * that plaintiff did not stop suddenly, then plaintiff owed no duty to signal with his hand and arm and cannot be charged with contributory negligence for failure to signal his intention to stop with his hand and arm.' The italicized quotations are designed to point up and emphasize the issues in the trial court and the plaintiff's claim upon this appeal.

On behalf of the defendant there was an instruction defining the highest degree of care and an instruction on burden of proof, and instruction A which hypothesized the defendant's theory and claim of White's contributory negligence. In part, that instruction informed the jury that if they found and believed from the evidence 'that, on the occasion mentioned in evidence, the plaintiff stopped his automobile on the highway on the A. S. B. Bridge in front of the automobile driven by defendant, * * * and that plaintiff failed to extend his arm or give other timely warning of his intention to stop his automobile on said highway, if so, and that at the time in question plaintiff knew, or in the exercise of the highest degree of care should have known, that the stopping of his automobile without extending his arm or giving other timely warning of his intention to do so, * * * would thereby be reasonably likely to create danger of a collision between plaintiff's automobile and defendant's automobile under the facts and circumstances in evidence,' and that the hypothesized conduct was negligent and proximately caused the collision and plaintiff's injuries, plaintiff was not entitled to recover.

Upon this appeal the plaintiff urges that the verdict and judgment were against the weight of the evidence, and that the court erred in submitting the defense of contributory negligence as set forth in instruction A for the reason that there was no evidence to support the submission. It is also urged that instruction A was prejudicially erroneous in that it is an incorrect statement of the law, submitted two grounds of negligence disjunctively without evidence to support both, and was an abstract statement of law without the hypothesization of sufficient facts to guide the jury and constituted an undue comment on the evidence.

The plaintiff's argument ignores, in part, the fact that the jury returned a verdict in favor of the defendant, the consequence being that in determining whether there was evidence in support of the hypothesized defense of White's contributory negligence, the evidence is viewed favorably to the defendant and the verdict. Floyd v. Thompson, 356 Mo. 250, 256, 201 S.W.2d 390, 393. Furthermore, upon the merits of the plaintiff's cause and the jury's verdict, neither the weight nor the substantiality of the evidence are open to question in this court, the jury resolved the one by its verdict and the trial judge resolved the other when he overruled the plaintiff's motion for a new trial. Cluck v. Abe, 328 Mo. 81, 84-85, 40 S.W.2d 558, 559-560; Small v. Wegner, Mo.Sup., 267 S.W.2d 26.

The plaintiff, White, testified that he entered upon the bridge at a speed of twenty-five miles an hour and at that time looked in his rear vision mirror and saw the defendant's car traveling at approximately the same speed 'unusually close behind my car,' five or six feet. White claims that as he left the bridge's last superstructure he came to a normal, gradual stop. However, as he proceeded across the bridge he said, 'I merely glanced in the rear view mirror approximately six times,' and 'each time he was the same closeness to my car.' He intended to and did stop in the line of traffic, knowing that the movement of other vehicles would be affected by his...