Yawitz v. Novak

• Decision Date: 30 July 1926
• Docket Number: 25466
• Citation: 286 S.W. 66
• Parties: YAWITZ v. NOVAK
• Court: Missouri Supreme Court

286 S.W. 66

YAWITZ v. NOVAK

No. 25466

Supreme Court of Missouri, First Division

July 30, 1926

Taylor Mayer & Shifrin, of St. Louis, for appellant.

Jones Hocker, Sullivan & Angert, of St. Louis, for respondent.

OPINION

ATWOOD J.

This is an appeal from a judgment in the circuit court of the city of St. Louis for Novak, defendant, in an action brought by Yawitz, plaintiff, to recover damages for an injury resulting in the amputation of the little finger of his right hand. The petition charged that defendant was 'the owner and operator of a certain automobile; that on or about the 30th day of April, 1922, at the invitation of defendant, plaintiff boarded said automobile while same was being operated and controlled by defendant; that whilst plaintiff was entering and boarding said automobile, and whilst plaintiff's right hand was resting on or near the door of said automobile, and in a position where, if said door, which was then open, should be shut, plaintiff's hand was liable to be injured, which the defendant knew, or by the exercise of ordinary care could have known, the defendant suddenly forcibly, and violently slammed and shut said door, so as to strike, mangle, and bruise plaintiff's hand, and injure and damage him in the manner and particulars hereinafter set forth; and that said injury and damage to plaintiff was caused by the aforesaid negligence and carelessness of defendant in so shutting and slamming said door when defendant knew, or by the exercise of ordinary care could have known, that by so doing plaintiff's hand would be or was liable to be injured.' Defendant's answer embraced a general denial and plea of contributory negligence. Plaintiff's reply was a general denial. At the close of plaintiff's case, and again at the close of the whole case, defendant offered an instruction in the nature of a demurrer to the evidence, which was each time overruled.

The evidence showed that defendant invited plaintiff and his wife to take an automobile drive with him and his family. The car was a seven-passenger two-door Jordan sedan, left-hand drive. The front door was on the left side and the rear door on the right side of the car. The rear seat would hold three passengers, two folding seats were immediately opposite the right-hand door, and the front seat would accommodate the chauffeur and another passenger. The party entered the automobile in front of defendant's residence. The chauffeur was seated at the wheel. Defendant's wife first entered the car, and occupied the left corner of the rear seat. Plaintiff's wife sat down next to her, one of defendant's children was placed on the left folding seat, and another child was placed on the front seat beside the chauffeur. Plaintiff then entered by the rear door, and while attempting to seat himself, or after he sat down on the rear seat, defendant closed or attempted to close the rear door, and plaintiff's finger was caught and mashed between the body of the car and the door, near one of the door hinges. There is some conflict of testimony as to whether or not plaintiff was seated at the time his finger was mashed. It appears that defendant was sitting on the right-hand folding seat at the time of the injury, but there is some conflict of testimony as to whether he faced the front or the rear part of the car when seated.

The sole error assigned by appellant is the giving of the following instruction No. 4 in behalf of and at the request of defendant:

'You are further instructed that, if you believe and find from the evidence that the injury to the plaintiff's hand was caused by an accident, mischance, or misfortune, and not due to any negligence on the part of either the plaintiff or defendant contributing thereto, then the plaintiff is not entitled to recover, and your verdict must be in favor of the defendant.'

Appellant insists that the evidence did not justify the giving of this instruction, and cites six Missouri decisions holding that, where there is no evidence of accident or mischance in the case, it is error to instruct on this point. We find no decisions to the contrary. The court should not instruct on issues not raised by the pleadings or the evidence. An accident is defined in an instruction held properly given in Briscoe v. Metropolitan Street Railway Co., 222 Mo. 104, loc.. cit. 116, 120 S.W. 1162, 1165, as:

'Such an unavoidable casualty as occurs without anybody being to blame for it; that is, without anybody being guilty of negligence in doing or permitting to be done, or in omitting to do, the particular things that caused such casualty.'

In Zeis v. Brewing Ass'n, 205 Mo. 638, loc.. cit. 651, 104 S.W. 99, 103, we held:

'If, after considering all the evidence in the case, offered by both plaintiff and defendant, and there is no evidence found of negligence, which resulted in the injury, then the injury is said to be the result of an accident. An accident is the happening of an event proceeding from an unknown cause.'

Appellant says that, under the evidence in this case, there was only room for the following three theories:

'(1) Appellant's hand was injured through the negligence of defendant in closing the door, when he saw, or by ordinary care could have seen, that by closing the door he was liable to injure appellant's hand.

'(2) Appellant's hand was injured because he was negligent in leaving it in a position of danger.

'(3) Appellant's hand was injured because of the concurring negligence of respondent in shutting the door when he saw, or could have seen, appellant's hand in a place of danger, and of appellant in leaving his hand in a position of danger.'

Consistent with the foregoing, appellant also says that:

'In the case at bar, the cause of the event complained of was not unknown; it was absolutely and positively known. It was due to the shutting of the door, by respondent, when appellant's hand was in a position where it would be caught. It was due to negligence, either of respondent or of appellant, or of both. It was for the jury to decide which, and render its verdict accordingly.'

We agree that the above three theories were properly submitted to the jury, but the shutting of the door can no more be said to be the 'positively known' cause of the injury than the presence of plaintiff's finger between the car body and the door at the particular time defendant undertook to shut the door. The cause of the injury was whatever brought about this coincidence, and if, under the evidence, the jury might have found that this was unknown, the giving of above instruction No. 4 was not erroneous. It was not necessary for defendant to plead that the injury resulted from accident. Proof of accident is admissible under a general denial. An accident instruction, if permissible at all, is authorized because the evidence shows, or justifies an inference, that the injury resulted in the absence of negligence on the part of either the plaintiff or the defendant. It is only where it can be said as a matter of law that the injury could not have resulted without negligence that an accident instruction should not be given, and, if a finding can be approved under the evidence that neither party was negligent, then an accident instruction should be given.

According to a preponderance of the evidence, defendant was the last to get in the car, and he sat down in the right-hand folding seat immediately in front of plaintiff, with his back to plaintiff, who was also seated, before he...