Wiber v. Mana
| Decision Date | 09 April 1962 |
| Docket Number | No. 48689,No. 2,48689,2 |
| Citation | 356 S.W.2d 88 |
| Parties | Thomas Charles WIBER, Appellant, v. Donald H. MANA, Jr., Respondent |
| Court | Missouri Supreme Court |
Henry W. Simpson, William L. Mason, Jr., St. Louis, for appellant.
Evans & Dixon, Eugene K. Buckley, St. Louis, for respondent.
Plaintiff sued for personal injuries arising out of an automobile collision occurring in St. Louis County on November 4, 1959. Following a verdict for defendant, and the overruling of plaintiff's motion for a new trial, plaintiff appealed. The point raised here involves the propriety of an instruction, but we shall need to state the facts.
Plaintiff owned a 1958 Berkeley sports car; this was a very small car, less than 4 feet in width. Just prior to the collision he had been at a cocktail lounge called the 'Cove,' where he met a young lady whom he knew. At the time of the collision about 1:30 a.m., he was endeavoring to take her home in that car. Defendant had also been at the 'Cove,' and he left at about the same time as plaintiff, driving a 1952 Plymouth. The collision occurred on the eastbound section of Natural Bridge Road, about 90 feet east of the cloverleaf located at the intersection of Natural Bridge and Jennings Road. The 'Cove' is perhaps a short block north of Natural Bridge, and is on or very near Jennings. Plaintiff had driven south on Jennings in order to go east on Natural Bridge. At the cloverleaf his car stalled in a puddle of water, but he managed to get it started after about 5 minutes. Proceeding thence east on Natural Bridge, his car stalled again about 90 feet east of the cloverleaf and near the center of the three-lane eastbound section. The three-lane roadway was 30 feet wide. If plaintiff's car was not precisely in the center lane, it was in such a position that cars readily passed him on both his right and left. The car had been stalled for at least 5 minutes at the time of the collision; plaintiff remained in the car and intermittently used the starter. Defendant, upon leaving the 'Cove,' had driven westward a long block and entered Natural Bridge there; he explained that this was due to his parking location, but that is immaterial. He then proceeded easterly and came upon plaintiff's stalled car. According to defendant, he was traveling about 25 miles an hour, it was raining and was dark, and the rain obscured his vision. He further testified: that when he first saw plaintiff's car it was right in front of him, about two ordinary car lengths ahead; that he applied his brakes and swerved to the left, but that his right front fender struck the car, pushing it chiefly to the side; that there were no lights on plaintiff's car. His direct statement that there were no lights was followed by statements to the effect that he saw no taillights burning and that he looked in such a manner that he would have seen them. Defendant's right front headlight was broken and his right front fender dented.
Plaintiff's evidence was, in substance: that it had been raining, but he thought it had stopped; that this location was near a Katz store, where the inside night-lights were on; that there was a street light near-by, and that the visibility was good; that one car stopped and the driver offered to push him, but he was afraid that the bumper would override his; that his headlights and taillights were working properly when he parked at the 'Cove' about midnight; that both worked on one switch, and that his lights were on while he was stalled on Natural Bridge; that he was hit violently from the rear with no prior warning. In view of the limited issue here, the other evidence is not material.
Plaintiff submitted a negligent failure of defendant to keep a vigilant lookout as the direct cause of the collision and his injuries. Defendant's sole instruction on the merits was his No. 5, which was as follows: 'The Court instructs the jury that the law of the State of Missouri requires that every person who is in custody of a motor vehicle on any street from a half hour after sunset to a half hour before sunrise shall have displayed upon the rear of said vehicle a lighted red lamp.
'In this regard, the Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence, at a time between a half hour after sunset and a half hour before sunrise, plaintiff Thomas Charles Wiber was in custody of and was operating his Berkeley sports car mentioned in evidence eastwardly upon Natural Bridge Road, and that said sports car became stopped upon the eastbound traveled portion of said Natural Bridge Road, and if you further find that plaintiff permitted said sports car to be and remained stopped upon the eastbound traveled portion of Natural Bridge Road without having a lighted red lamp displayed on the rear of said sports car, and that in so permitting said sports car to be and remain stopped without having a lighted red lamp displayed on the rear thereof, if you so find, the plaintiff Thomas Charles Wiber failed to exercise the highest degree of care and was negligent, and if you further find that such negligence, if any, on the part of the plaintiff, directly contributed to cause defendant's automobile to collide with the rear of plaintiff's said sports car, then you are instructed that your verdict should be against the plaintiff and in favor of the defendant, and this is true regardless of whether or not defendant was also negligent.'
Plaintiff's contentions of error concerning that instruction, all of which were fairly raised in his motion for a new trial, are: that the instruction 'must' be based on Sec. 304.450, RSMo 1959, V.A.M.S., and, being a verdict-directing instruction, it must hypothesize all essential elements; that it fails to negative the statutory exception permitting cities, towns and villages to regulate the matter of lights by their own parking regulations; also, that the instruction is confusing and misleading in using the term 'lighted red lamp' instead of 'a red light.'
It was obviously necessary for this instruction to hypothesize all the material elements of a defense of contributory negligence. And we may assume, as plaintiff suggests, that the instruction was intended to present a defense of contributory negligence based on our statutes and not on the common law. But it does not allow, as plaintiff suggests, that the instruction 'must * * * be based on * * * Sect. 304.450' RSMo 1959, V.A.M.S. (to which revision all statutory references herein will be made). Section 304.450 is as follows: ...
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Walker v. Massey, 8606
...the cited statutes. This, we believe, is in harmony with, and is supported by, the discussion concerning those statutes in Wiber v. Mana, Mo., 356 S.W.2d 88, 90--91. See also Casto v. Railway Express Co., Mo.App., 219 S.W.2d 276, where plaintiffs' northbound cab on Morley Street (over which......
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