Summary
In Bloch v. Kinder, 338 Mo. 1099, 93 S.W.2d 932, the court said: "* * * in a case of this character, a verdict for defendant need not be supported by affirmative, substantial evidence tending to show that defendant was not guilty of negligence, because the burden was not on defendant to acquit himself of the charge of negligence.
Summary of this case from Emert v. St. Louis Public Service CompanyOpinion
April 23, 1936.
1. APPEAL AND ERROR: Submissible Case. On appeal from a judgment in favor of defendant who was sued for damages caused by a collision of plaintiff's automobile with defendant's automobile, a complaint by plaintiff on appeal that the defendant's evidence was so conflicting that the verdict was against the weight of the evidence and the result of passion and prejudice cannot be considered, for the Supreme Court will not pass upon the weight of evidence.
A verdict for defendant need not be supported by substantial evidence because the burden was not on him to acquit himself of a charge of negligence; the burden was on plaintiff to show, prima facie, that the defendant was guilty of the negligence charged and; absent such showing a verdict for defendant was authorized.
The credibility of the witnesses in such case was a question for the jury and where the verdict was in favor of defendant and received the approval of the trial court, the appellate court cannot set it aside as being against the weight of the evidence, nor weigh the evidence.
2. WITNESSES: Impeachment. In an action for damages caused by a collision of plaintiff's automobile with defendant's automobile where plaintiff introduced a witness testifying to an incident and defendant on cross-examination examined the witness further as to a conversation between defendant and the witness, the cross-examination was not improper because it tended to corroborate rather than to impeach plaintiff's witness and because plaintiff first introduced the subject.
3. NEGLIGENCE: Degree of Care. In an action for damages caused by a collision of plaintiff's automobile with defendant's automobile, an instruction telling the jury that the law required plaintiff to exercise the highest degree of care and that if he negligently failed to stop, slacken speed or swerve his automobile so as to avoid the collision, although by the exercise of the highest degree of care for his own safety he could have done so, the verdict should be for defendant, was not erroneous as assuming that plaintiff could have avoided the collision by the exercise of the highest degree of care.
4. NEGLIGENCE. In an action for damages caused by the collision of plaintiff's automobile with that of defendant at the intersection of two streets, the evidence authorized the submission of the question whether plaintiff by his failure to stop his car could have avoided the collision.
5. NEGLIGENCE: Burden of Proof. In an action for injuries caused to plaintiff by defendant's negligence in operating the latter's automobile, an instruction telling the jury that negligence is a positive wrong not to be presumed and the law casts a burden upon plaintiff to prove negligence before he can recover and that the charge must be sustained by a preponderance or the greater weight of the evidence, was not erronous as placing the burden upon plaintiff to prove all of the assignments of negligence submitted to the jury.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert J. Kirkwood, Judge.
AFFIRMED.
S.P. McChesney and Erwin F. Vetter for appellant.
(1) Where the verdict is manifestly against the weight of the evidence, and is based upon uncorroborative testimony which is conflicting and irreconcilable with the physical facts and apparently the result of passion and prejudice, the verdict should be set aside. Van Bibber v. Swift Co., 286 Mo. 317, 228 S.W. 69; Kibble v. Railroad Co., 227 S.W. 42; Biondi v. Central Coal Coke Co., 320 Mo. 1130, 9 S.W.2d 596; Zieglemeier v. Ry. Co., 51 S.W.2d 1027, 330 Mo. 1013; Hornbuckle v. McCarty, 243 S.W. 327; Hammond v. Emery, Bird Thayer, 240 S.W. 170; Birdsong v. Jones, 225 Mo. App. 242, 39 S.W.2d 1094; Lord v. Austin, 39 S.W.2d 575. (2) To permit the defendant to relate conversations which he had with a third person at the scene of the collision in the nature of a private argument on a collateral issue for the purpose of impeachment, while the plaintiff was still unconscious after the accident, was incompetent, irrelevant and prejudicially erroneous. Maurizi v. Western Coal Co., 11 S.W.2d 268; State v. Baublets, 27 S.W.2d 16, 324 Mo. 1199; Cooley v. Davis, 286 S.W. 412, 221 Mo. App. 748. (3) Defendant's Instruction 6 assumes that plaintiff, by the exercise of the highest degree of care, could have stopped his automobile or slackened the speed of it, or swerved it, to have avoided the collision. Further, there was no proof upon which to base the failure to stop, nor was a causal connection shown between the injury and failure to stop. Further, it was confusing and misleading and therefore reversible error. Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Counts v. Thomas, 63 S.W.2d 416; Alexander v. Hoenshell, 66 S.W.2d 164; Inman v. Walter-Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Bullmore v. Beeler, 33 S.W.2d 161. (4) Defendant's Instruction 7 was erroneous in that it placed the burden upon the plaintiff to prove all of the assignments of negligence submitted to the jury, before he could recover. It was therefore erroneous. Charr v. McLoon, 304 Mo. 238, 263 S.W. 174; Denkman v. Prudential Fixture, 289 S.W. 591; Tappmeyer v. Reikopf, 45 S.W.2d 890; Linders v. Peoples Motorbus, 32 S.W.2d 580, 326 Mo. 695.
Green, Henry Remmers for respondent.
(1) The appellate courts do not weigh the evidence. Parrent v. Railroad Co., 334 Mo. 1212. Only in extraordinary cases can the appellate courts disregard sworn testimony as manifestly impossible and untrue. Schupback v. Meshevsky, 300 S.W. 467; Dempsey v. Horton, 84 S.W.2d 624. (2) Appellant has the burden to establish that the admission of evidence complained of as immaterial and prejudicial constituted actual prejudice. Span v. Jackson, Walker Coal Mining Co., 16 S.W.2d 200. (3) Sec. 7777 (1), R.S. 1929, on right of way; Sec. 7775, R.S. 1929, on highest degree of care. The rate of speed, or plaintiff's knowledge of, or reliance on, the ordinance being observed, has little, if any, bearing on the question of plaintiff's contributory negligence. Todd v. Ry. Co., 37 S.W.2d 557. It has been repeatedly held that where an instruction commences: "If you find and believe from the evidence," such instruction does not assume certain facts, but submits the facts to the jury. Dohring v. Kansas City, 81 S.W.2d 947. Whether highest degree of care was exercised and its relation to the contributory negligence of plaintiff is for the jury. Davis v. United Rys. Co., 203 Mo. App. 373, 218 S.W. 357; Foy v. United Rys. Co., 205 Mo. App. 521, 226 S.W. 325; State ex rel. Dowell v. Allen, 250 S.W. 580; Rowe v. Ry. Co., 41 S.W.2d 631; Highfill v. Wells, 16 S.W.2d 100. When a plea of contributory negligence is put at issue it cannot be questioned on appeal. Daniel v. Pryor, 227 S.W. 102. Instruction 6 does not assume, but hypothesizes the failure of plaintiff to exercise the highest degree of care, and defines negligence. Niehaus v. Schultheis, 17 S.W.2d 603. (4) Instruction 7 on burden of proof does not require finding of all charges of negligence. It simply informs the jury. Linders v. People's Motorbus Co., 326 Mo. 695.
Action to recover damages for alleged personal injuries. The judgment below was for defendant and plaintiff appealed.
Plaintiff's alleged injuries were caused by a collision between two automobiles at a street intersection in the city of St. Louis. One automobile was driven by plaintiff, the other by defendant. No contention is made that plaintiff did not make a case for the jury. None of the questions raised involve a consideration of the evidence. In this situation, a review of the evidence is not necessary.
Plaintiff first contends that there is no substantial evidence to support the verdict in favor of defendant.
The argument made in support of this contention is that plaintiff's evidence, substantiated by photographs and physical facts, tends to show that defendant was guilty of gross negligence, and that defendant's evidence was so conflicting and opposed to the physical facts as not to amount to substantial evidence, and, therefore cannot be the basis for a verdict and judgment. From these premises it is argued that the verdict is against the weight of the evidence and is the result of passion and prejudice on the part of the jury.
The fault in plaintiff's argument is that in a case of this character, a verdict for defendant need not be supported by affirmative, substantial evidence tending to show that defendant was not guilty of negligence, because the burden was not on defendant to acquit himself of the charge of negligence. The burden was on plaintiff to show, prima facie, that defendant was guilty of the negligence charged. The absence of such a showing by plaintiff would authorize a verdict for defendant. Moreover, if, as plaintiff contends, his evidence tended to show that defendant was guilty of the negligence charged, the credibility of such evidence and the weight and value which should be given to it was a question for the jury. Since the verdict was in favor of defendant, and received the approval of the trial court, we cannot set it aside as being against the weight of the evidence, because an appellate court is not authorized to pass upon the weight of the evidence. [Biondi v. Central Coal Coke Co., 320 Mo. 1130, 9 S.W.2d 596, 598.] Plaintiff also contends that the verdict is the result of passion and prejudice, but he points to no fact or circumstance tending to support such contention. In fact the claim is that the verdict is the result of passion and prejudice because it is against the weight of the evidence. This contention must fail because we are not authorized to pass upon the weight of the evidence.
It is next contended that the court erred in permitting defendant to testify to conversations which he had with a third person at the scene of the collision.
One Miner, testifying for plaintiff, said when he reached the intersection where the collision occurred, he tried to get defendant's name but defendant would not give it to him; that he then took the key out of defendant's car. On cross-examination he testified that he took the keys out of defendant's car because he thought he might get away.
The evidence of defendant about which complaint is made is as follows:
"Q. State what conversation you had with Miner. A. Well, when I asked for the key, Mr. Miner says, `I got it.'
"Q. Go ahead. A. I says to him, `What business have you got with my keys?' He says, `Well, I took the key out of your car so you wouldn't run away,' and I told him if I wanted to get away I could have been gone long ago."
Plaintiff argues that after defendant's counsel had completed his cross-examination about the car keys, which was a purely collateral issue, he had no authority to present further evidence by way of impeachment.
There is no merit in this contention for two reasons. In the first place defendant's testimony as to the conversation between him and plaintiff's witness, Miner, relative to the car keys was not impeaching evidence. It tended to corroborate rather than impeach plaintiff's witness. In the second place, since plaintiff first introduced the subject, he is not in a position to complain because defendant testified on the same subject. Besides, this evidence, if prejudicial, would tend to harm the defendant rather than the plaintiff, by causing some juror to believe that defendant was attempting to leave the scene of the accident in violation of Section 7783, Revised Statutes 1929.
It is next contended that the court erred in giving defendant's Instruction No. 6.
The first complaint against this instruction is that it assumes that plaintiff, by the exercise of the highest degree of care for his own safety, could have avoided the collision by stopping, slackening the speed of, turning or swerving his automobile. The instruction reads as follows:
"The Court instructs the jury that the law requires that the plaintiff should exercise the highest degree of care while operating an automobile on the public streets of the City of St. Louis, that is, such care as a careful and prudent person would exercise under the same or similar circumstances; therefore, if you find and believe from all the evidence in this case that the plaintiff failed to exercise the highest degree of care for his own safety, if you do so find, while operating an automobile upon a public street, in that plaintiff negligently and carelessly failed to stop, slacken the speed of, turn or swerve said automobile so as to avoid colliding with defendant's automobile, although plaintiff, by the exercise of the highest degree of care for his own safety, could have done so; and if you further find that such failure to exercise the highest degree of care for his own safety, if you do so find, contributed to cause his injuries, if any he may have received on the occasion mentioned in the evidence, then you should find that he is guilty of contributory negligence, he cannot recover herein, and your verdict must be for the defendant."
It is claimed that the italicized portion of the instruction assumes that plaintiff, by the exercise of the highest degree of care, could have avoided the collision.
While the instruction could and should have been written so as to obviate the criticism leveled against it, yet, it does not assume that plaintiff by the exercise of the highest degree of care could have avoided the collision, but on the contrary requires the jury to so find. Boiled down for the purpose of easier analysis, the instruction requires the jury to find that plaintiff failed to avoid the collision, although he could have done so by the exercise of the highest degree of care for his own safety.
It will be noted that the part of the instruction criticized starts out with these words, "therefore if you find and believe from all the evidence in this case." Find what? Necessarily the two things hypothesized in the instruction immediately following the words above quoted, (1) that plaintiff negligently failed to stop, slacken the speed of, turn or swerve said automobile, so as to avoid the collision, and (2) although by the exercise of the highest degree of care for his own safety he could have done so. The instruction, fairly interpreted, requires the jury to find that plaintiff, by exercising the highest degree of care for his own safety, could have avoided the collision. Similar instructions have been held not to assume facts [Reith v. Tober, 8 S.W.2d 607, 608-9, 320 Mo. 725; Rummels v. Illinois Central Ry. Co., 15 S.W.2d 363, 367; Lewis v. Illinois Central Railroad Co., 50 S.W.2d 122.]
The next complaint against this instruction is that there was no proof upon which to base the failure to stop, nor was there a causal connection shown between the injury and failure to stop.
Hamilton Boulevard runs north and south, and Ridge Avenue east and west. Plaintiff was traveling north on Hamilton Boulevard, and defendant was traveling west on Ridge Avenue. Defendant testified that as he approached Hamilton Boulevard he made a complete stop before entering the intersection; that he then saw plaintiff approaching on Hamilton Boulevard one hundred feet from the intersection; that he then started up at a speed of ten miles per hour for the purpose of crossing the intersection. Plaintiff testified that he was driving at a speed of twenty-five miles per hour and could have stopped his car within ten or twelve feet. This evidence authorized the submission of the question of plaintiff's failure to avoid the collision by stopping his car.
The final contention is that defendant's Instruction No. 7 erroneously placed the burden upon plaintiff to prove all of the assignments of negligence submitted to the jury before he could recover. The instruction reads as follows:
"The charge laid by plaintiff against defendant is one of negligence. Negligence is a positive wrong, and therefore in this case is not presumed, and it does not devolve upon the defendant to disprove the charge, for the law casts the burden of proving negligence upon the plaintiff. Therefore, before plaintiff can recover under such charge of negligence, the charge must be sustained by the preponderance, that is, the greater weight of the credible evidence to the reasonable satisfaction of the jury."
Plaintiff cites four cases in support of this contention. The first three cases cited do not deal with the question at all. The fourth, Linders v. People's Motor Bus Company, 326 Mo. 695, 32 S.W.2d 580, decides the question exactly contrary to plaintiff's contention. In the Linders case, an instruction similar to the one criticized in this case was given. It was contended in that case that the instruction required the plaintiff to prove all the charges of negligence alleged in the petition before he could recover. In disposing of that contention, we there said:
"The instruction simply informs the jury that the action is a negligence case and that in such cases the burden is on plaintiff who makes the charge of negligence to prove it by `the greater weight of the credible evidence.' The charges of negligence alleged in the petition, are in no way mentioned and the jury could not have understood that plaintiff was thereby required to prove all the charges before he could recover."
The instruction considered in the Linders case is almost an exact counterpart of the instruction in the instant case. On the authority of the Linders case, we decide this contention against plaintiff.
The judgment below should be affirmed. It is so ordered. All concur.