Woods v. Ogden

• Decision Date: 17 March 1937
• Docket Number: No. 34191.,34191.
• Citation: Woods v. Ogden, 102 S.W.2d 648 (Mo. 1937)
• Parties: WOODS v. OGDEN et al.
• Court: Missouri Supreme Court

102 S.W.2d 648

WOODS v. OGDEN et al.

No. 34191.

Supreme Court of Missouri, Division No. 1.

March 17, 1937.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Mrs. Edna Woods against Mrs. Hattie Ogden and another. Verdict for defendants, and from an order sustaining plaintiff's motion for a new trial, defendants appeal.

Affirmed, and cause remanded.

Brown, Douglas & Brown, of St. Joseph, for appellants.

Mytton, Parkinson & Norris, of St. Joseph, for respondent.

HYDE, Commissioner.

This is an action for $20,000 damages for personal injuries, sustained when plaintiff was struck by an automobile owned by defendant Mrs. Ogden and driven by her son-in-law defendant Washburn. The jury's verdict was for defendants, but the court sustained plaintiff's motion for a new trial. Defendants appealed from this order.

The court failed to state in its order any ground for its action. However, defendants' instruction H is concededly erroneous because it stated that "by the term `negligence' as used in the instructions in this case is meant the failure to exercise ordinary care, and by the term `ordinary care' is meant such care as would have been exercised by an ordinarily careful and prudent person under the same or similar circumstances." The statute (section 7775, R.S.1929 [Mo.St.Ann. § 7775, p. 5197]), of course, required defendants to exercise the highest degree of care in the operation of their automobile upon public streets. It is contended that this instruction could not have been prejudicial because plaintiff's main instruction told the jury that "by `negligence' as used in this instruction is meant the failure to exercise the highest degree of care, and by `highest degree of care' is meant such care as would ordinarily be used by a very prudent and careful person under like or similar circumstances." It is true, as defendants say, that instructions must be read together, but when these are read together they directly conflict. Instead of harmonizing or clarifying the charge as a whole so that indefinite or misleading statements are made plain, these instructions give the jury two entirely different standards and leave them in doubt as to which should be their guide. This is unquestionably prejudicial error. McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S. W.(2d) 37, and cases cited. We hold that it was proper for the court to grant plaintiff a new trial because of this error, if plaintiff made a case for the jury.

Plaintiff was struck while crossing a street intersection. The allegations of negligence submitted to the jury were: Failure of the defendants in the operation of the car to maintain a vigilant watch for pedestrians upon the street; operation of the car on the left or wrong side of the street; and failure to give a signal or warning as said car neared a street intersection. Plaintiff had substantial evidence to support these charges and defendants do...