Willhite v. City of St. Louis

• Decision Date: 14 November 1949
• Docket Number: 41203
• Citation: 224 S.W.2d 956,359 Mo. 933
• Parties: Russell E. Willhite and Wilma G. Willhite, (Plaintiffs) Respondents, v. The City of St. Louis, a Municipal Corporation, (Defendant) Appellant
• Court: Missouri Supreme Court

224 S.W.2d 956

359 Mo. 933

Russell E. Willhite and Wilma G. Willhite, (Plaintiffs) Respondents, v. The City of St. Louis, a Municipal Corporation, (Defendant) Appellant

No. 41203

Supreme Court of Missouri

November 14, 1949

Rehearing Denied December 12, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge.

Reversed and remanded.

SYLLABUS

The facts and holding of the opinion are adequately summarized in the headnote.

James E. Crowe, City Counselor, Harry R. Stocker and John P. McCammon, Associate City Counselors, for appellant.

(1) The giving of Instruction 1 was error for the reason that said instruction erroneously tells the jury that the fact that defendant's truck passed a stopped motor car on the righthand side thereof constituted negligence, and did not require the jury to find that such act was negligence. There is no positive prohibition against so passing. Sec. 8385 (e) (j), R.S. 1939; Moore v. Miller, 51 Cal.App. (2d) 675, 125 P.2d 576; Jones v. Southwest Pump & Mach. Co., 227 Mo.App. 990, 60 S.W.2d 754; Wright v. Clausen, 253 Ky. 498, 69 S.W.2d 1062, 104 A.L.R. 480; Melber v. Yourtee, 203 S.W.2d 727; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66; Felts v. Spesia, 61 S.W.2d 402; Balzer v. Caldwell, 263 N.W. 705. (2) Instruction 1 was erroneous for the further reason that the undisputed testimony showed that defendant's truck was not a "vehicle following" within the meaning of the statute, but was a vehicle pursuing a course parallel to the vehicle which stopped in the lefthand southbound traffic lane. Sec. 8385 (e), R.S. 1939; 60 C.J.S. Motor Vehicles, sec. 326, p. 762; Piper v. Adams Express Co., 270 Pa. 54, 113 A. 562; Cases cited under Point (1), supra; Vanausdall v. Schorr, 168 S.W.2d 110.

Charles P. Noell, John H. Haley, Jr., and Thomas R. McGinnis for respondents.

(1) Violation of Sec. 8385 (e), R.S. 1939, prohibiting the operator or driver of a vehicle from passing to the right of another vehicle going in the same direction, is negligence as a matter of law and the language of the statute does not admit of being construed as appellant argues and the facts of this case would not permit the application of the appellant's "Construction" of the statute as a defense. McCoy v. Home Oil & Gas Co., 48 S.W.2d 113; Vanausdall v. Schorr, 168 S.W.2d 110; Fries v. Berberich, 177 S.W.2d 640. (2) The plaintiffs' principal instruction required the finding of facts which constitute a violation of the statute and such act being negligence per se, no finding by the jury that it was negligence was required. Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914.

OPINION

Hyde, J.

Action for wrongful death of plaintiffs' minor son. Verdict and judgment for $ 15,000, reduced by remittitur to $ 10,500. Defendant appealed and alleges error in Instruction No. 1 which we find must be sustained.

Defendant's truck, which ran over plaintiffs' son, was going south on the west side of Kingshighway Boulevard. This street was wide enough for three lines of southbound traffic but cars parked on the west side narrowed it so that, at the time of the casualty, only two lines could be accommodated. There was a white line marking the center of the street. Easton Avenue (running east and west) intersected Kingshighway and there was a traffic light at this intersection. The next three streets to the south, coming into Kingshighway from the west (Wells, Ridge and Minerva), ended there and did not continue east.

Witness Jenkins and his sister Mrs. Roff, were driving south in his Chevrolet coach and stopped at the Easton Avenue light. Defendant's two and a half ton dump truck stopped to their right. When the light changed Jenkins started ahead of the truck, driving about 25 miles per hour by the time he reached Wells. His car was near the white center line with the truck following to his right rear about in the center of the west part of the street. Both Jenkins and his sister said they saw plaintiffs' son (six years old) soon after they crossed Easton Avenue. He was standing on the white line in the center of Kingshighway a few feet south of Ridge. The boy was looking around in all directions, apparently confused and frightened. It was about 4:00 P.M. and the traffic on Kingshighway was heavy, especially northbound traffic on the east half of the street. Jenkins slowed down his car and then came to a stop with his left front wheel about where the boy was standing. When he did so the boy walked in front of his car and then started to run in a southwesterly direction. The truck passed to the right of the Jenkins' car and struck the boy. According to Jenkins and his sister, the boy was struck when only three or four feet from the line of parked cars along the west side of Kingshighway. They said he was then to the right of the center of the front end of the truck; that he was rolled toward the east; and that he was run over by the dual left rear wheels of the truck. Defendant's evidence was that the boy ran into the left side of the truck, back of the cab, and fell under the rear wheels. Instructions offered by it, submitting this theory, were given by the Court.

Instruction No. 1, the only instruction authorizing recovery by plaintiffs, was as follows: "The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in evidence defendant's truck as it was going south on Kingshighway, was passing on the right side or to the west of an automobile which had stopped as it was going south on Kingshighway, then the defendant was guilty of negligence, and if you further find and believe from the evidence that as a direct and proximate result thereof William Eugene Willhite and defendant's truck collided and William Eugene Willhite was killed and that Russell E. Willhite and Wilma G. Willhite were the father and mother of William Eugene Willhite, then your verdict should be in favor of the plaintiffs and against the defendant."

We cannot approve this instruction because we cannot hold that it is always negligence as a matter of law, under all circumstances, to pass another motor vehicle on the right although usually it it. [See Rader v. David (Mo. App.) 207 S.W.2d 519; McCoy v. Home Oil & Gas Co. (Mo. App.) 48 S.W.2d 113.] This instruction was based on Sec. 8385(e), R.S. 1939, Mo. R.S.A., which provides: "An operator or driver of a vehicle overtaking another vehicle going in the same direction and desiring to pass the same shall pass to the left of the vehicle so overtaken." However, this section itself contains the following exception: "In municipalities, on highways where double lines of vehicles are possible, or on highways where vehicles are obliged to move in one direction only, when any vehicle has slowed down, or stopped, and the operator or driver thereof has signaled for making a left-hand turn as required herein, the operators and drivers...