Williams v. Christian
| Citation | 520 S.W.2d 139 |
| Decision Date | 02 December 1974 |
| Docket Number | No. KCD,KCD |
| Parties | Terry WILLIAMS, pro ami, Plaintiff-Appellant, v. Janice M. CHRISTIAN (Tinder), Defendant-Respondent. 26218. |
| Court | Court of Appeal of Missouri (US) |
M. Sperry Hickman, Inc., By M. Sperry Hickman, Independence, for plaintiff-appellant.
George T. O'Laughlin, William E. Simmons, Miller & O'. laughlin, P.C., Kansas City, for defendant-respondent.
Before PRITCHARD, P.J., SWOFFORD and SOMERVILLE, JJ., and TURNAGE, Special Judge.
The refusal of a lookout instruction has generated a head on confrontation between the parties in a tort action. The appellant, plaintiff below, tendered the following lookout instruction as his verdict director, which was refused by the trial court:
'REFUSED INSTRUCTION NO. A
Your verdict must be for plaintiff if you believe:
First, defendant failed to keep a careful lookout, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence the plaintiff sustained damage.
The term 'negligence' as used in this instruction means the failure to use the highest degree of care which means that degree of care that a very careful and prudent person would use under the same or similar circumstances.'
In lieu thereof, and over the objection of appellant, the trial court gave the following res ipsa verdict director on which the case was submitted to the jury:
Your verdict must be for plaintiff if you believe:
First, defendant was the driver of the automobile, and
Second, the automobile left the street and ran across the shoulder, and
Third, such movement of the automobile was the direct result of defendant's negligence, and
Fourth, as a direct result of such negligence the plaintiff sustained damage.
The term 'negligence' as used in this instruction means the failure to use the highest degree of care which means that degree of care that a very careful and prudent person would use under the same or similar circumstances.'
The jury returned a verdict for respondent, defendant below. For reasons hereinafter discussed, appellant contends the trial court's refusal to give the tendered lookout instruction was untenable and so prejudicial as to entitle him to a new trial--on the other hand, the respondent contends the trial court's refusal to give the tendered lookout instruction was tenable and the verdict returned in her favor is inviolable.
Extrinsic to the merits, but nonetheless demanding disposition, is respondent's motion to dismiss the appeal, which was taken with the case, for failure of appellant's brief to contain a proper statement of facts (Rule 84.04(c), V.A.M.R.) and a proper statement of points relied on (Rule 84.04(e)). Appellant's brief, in the respects attacked by respondent, is neither a model of compliance nor as wanting as claimed by respondent. Such being the case, this court is unwilling to say appellant's brief is so deficient that he should be expatriated from having his appeal disposed of on its merits. Accordingly, respondent's motion to dismiss the appeal is overruled and attention now focuses on the merits of the appeal.
By way of a brief preface, appellant, who was ten years of age of April 7, 1969, submitted evidence that on the date mentioned, while standing on the south shoulder and clear of the traveled portion of Truman Road in Independence, Missouri, he was struck and injured by an eastbound automobile driven by respondent. Respondent submitted evidence that appellant darted into the street in front of her and was struck while in the traveled portion of Truman Road. Thus, the point of impact was in sharp dispute and intrinsically involved in the controversy swirling around the refused lookout instruction. Appellant, as disclosed by his second amended petition, pleaded that he was struck and injured by respondent's vehicle while standing on the shoulder and clear of the traveled portion of Truman Road as a direct and proximate result of respondent's negligent failure to keep a careful lookout. Respondent's responsive pleading consisted of a general denial.
Appellant claims the trial court erred in refusing the lookout instruction tendered by him because, (1) he was entitled to submit his case and to have the jury instructed on his theory of recovery, e.g., that he was struck by respondent's automobile and injured as a direct and proximate result of respondent's failure to keep a careful lookout, since it was fully supported by the evidence, and (2) the verdict directing lookout instruction, which the court refused, followed to the letter MAI 17.01, 17.05, and 11.03 and was thereby legally correct and properly submitted his theory of the case, the single negligent act of failure on the part of respondent to keep a careful lookout. Respondent joins issue with appellant's assertions of error on the premise that the refused lookout instruction was not legally correct because if failed to contain an hypothesis 'of the ultimate fact issue' of whether the impact occurred while appellant was standing on the shoulder and clear of the traveled portion of Truman Road, as supported by appellant's evidence, or in the traveled portion of Truman Road, as supported by respondent's evidence. Additionally, respondent throws in a 'so what' or harmless error argument. The latter being premised on the theory that the res ipsa verdict director given by the court, over the objection of appellant, correctly stated the law applicable to his evidence and was more favorable to him than the refused lookout instruction. The contentions of appellant and the counter-contentions of respondent will be discussed along with appropriate legal templates which shape them for proper disposition.
It is axiomatic that appellant was entitled to a verdict directing instruction predicated on respondent's failure to keep a careful lookout, his theory of the case, if supported by the evidence. Welch v. Sheley, 443 S.W.2d 110 (Mo.1969); and See v. Kelly, 363 S.W.2d 213 (Mo.App.1962). Appellate determination of whether the evidence supported giving such an instruction requires viewing the evidence and all reasonable inferences to be drawn from a standpoint most favorable to appellant, giving him the benefit of any part of respondent's evidence favorable to him which was not contradicted by his own evidence or contradicted by his theory of the case, and disregarding all of respondent's unfavorable evidence. Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970); Ukman v Hoover Motor Express Co., 269 S.W.2d 35, 37 (Mo.1954); and Basler v. Huck, 435 S.W.2d 742, 743 (Mo.App.1968).
The evidence in this case, viewed as above stated, lends itself to the following summarization. Appellant, who was ten years old at the time of the accident, lived on the north side of Truman Road. The family mailbox was on the sourth shoulder of Truman Road. Appellant, at the request of his father, crossed Truman Road and went to the mailbox to pick up the family mail. After removing the mail from the box, appellant walked north, back toward Truman Road, and stopped at a point 'one to one and a half steps' south of the south edge of the traveled portion of Truman Road. The point where appellant stopped and was standing was immediately adjacent to a 'mudhole'. At this point appellant looked west and observed respondent's vehicle traveling east on the traveled portion of Truman Road at a speed of approximately 25 miles per hour and 'decided to wait for it to pass'. Respondent's vehicle, when so observed by appellant, was in the vicinity of the intersection of Turner Street and Truman Road. The referred to intersection was approximately two houses west of where appellant was standing. The view from where appellant was standing back west down Truman Road was completely unobstructed for a distance of approximately 1724 feet and Truman Road was straight and level through the entire span of distance just mentioned. After appellant observed respondent's vehicle traveling east on the traveled portion of Truman Road as described, and while still standing at a point 'one to one and a half steps' south of the south edge of the traveled portion of Truman Road, he then looked to the east down Truman Road. Sometime during the period of time while appellant was looking east down Truman Road, and while still standing at a point 'one to one and a half steps' south of the south edge of the traveled portion of Truman Road, the course and direction that respondent's vehicle had been traveling when first observed by appellant changed, and it then came partially onto the south shoulder of Truman Road and struck appellant where he was standing. Respondent did not see appellant before the impact occurred. Respondent's vehicle was in good mechanical condition and did not leave the traveled portion of Truman Road due to any mechanical defect, or because it was out of control, or faced with a sudden emergency. After the impact the respondent's vehicle came to a stop approximately 100 feet east of the mailbox, headed in a northeasterly direction, with its front left corner sitting on about the centerline of Truman Road. Appellant was lying in front of respondent's vehicle in the south half of Truman Road. There was a single mud tire track running from the right wheels of respondent's car back southwesterly to the mudhole which was immediately adjacent to where appellant had been standing and there was fresh mud on the right front tire or respondent's vehicle.
Did the evidence, so viewed, support the giving of a verdict directing instruction premised on failure to keep a careful lookout? The answer to the posed question is yes for the following reasons. Respondent had a duty to keep a lookout ahead and laterally ahead and to have seen appellant standing on the south shoulder within her unobstructed range of vision. Williams v....
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