Opinion
No. 27876.
June 20, 1950. Rehearing Denied July 18, 1950.
APPEAL FROM THE HANNIBAL COURT OF COMMON PLEAS, ROY B. MERIWETHER, J.
Rendlen Rendlen, of Hannibal, and Waldo Edwards and Paul D. Hess, Jr., both of Macon, for appellant.
Carstarphen Harvey, of Hannibal, for respondents.
This proceeding originated as an action to recover for the damage allegedly done to a gasoline transport trailer truck which was owned by plaintiff, T. E. Bowzer, and was in the care of his employee, Orval Day, at the time the damage was sustained.
The accident occurred about noontime on November 16, 1948, at a point on U.S. Highway 36 just west of the town of Ely, Missouri. The highway is the conventional concrete type, 18 feet in width, with a black center line separating the sections reserved respectively for eastbound and westbound traffic.
Day was driving his truck eastwardly on his way to Hannibal, and as he approached the point in question he was stopped by one Ralph Claus, who, with his brother, Carl Claus, was occupied in pulling an automobile back onto the pavement from out of a ditch running along the south side of the road.
It appears that Day stopped his truck on the pavement some 50 to 100 feet to the rear of the car with which the Claus brothers were pulling the other automobile back upon the pavement; and after he had been stopped for half a minute or so, he took a red flag in his left hand, stepped partly out on his running board, and waved the flag to signal other traffic. Several trucks and automobiles moved by in either direction over the open side of the highway, while others, whose drivers were more curiously inclined, were stopped and parked on the dirt shoulder immediately north of the pavement.
It had been raining heavily just prior to the accident, and Day testified that while the dirt shoulders were solid enough to hold up an ordinary vehicle, they would have been too soft and muddy to support his heavy truck. After Day had had his truck at a standstill on the pavement for some 10 to 15 minutes, an eastbound Buick automobile was seen coming over the hill to the west at a speed estimated at from 50 to 75 miles an hour. This automobile was driven by defendant Chester F. Singer, an employee of defendant The Magnavox Company, who was admittedly traveling on the business of his employer at the time.
As Singer approached the scene it at first appeared to him through the haze that the gasoline truck was in motion on the highway. If Day was waving the red flag as he had testified, Singer did not observe it. According to Singer's version of the facts, he slowed down somewhat and pulled over on the north side of the pavement to pass Day's truck as the other vehicles had been doing, but as he started in such direction, a truck suddenly pulled out on that portion of the highway from off the north shoulder and closed the highway to his automobile. As for this feature of the case, Carl Claus denied that there had been any vehicle on the north side of the highway which would have interfered with Singer's passing through. Whatever the actual fact may have been, Singer at any rate crashed into the rear of the gasoline truck at a reduced speed of some 20 miles an hour; and this action was shortly instituted to recover for the damage done to the truck, which plaintiff estimated at $3,000.
Defendants Singer and The Magnavox Company answered separately, each by a general denial coupled with a plea of contributory negligence, which charged, among other things, that the damage to the truck had resulted from Day's own negligence in stopping the truck on the highway, and in failing to drive the truck off of the pavement and onto the shoulder.
In addition defendant Singer filed a counterclaim in which he asked damages from plaintiff in the sum of $8,500 for the injuries to his person and the damage to his own automobile as a result of the collision.
Upon a trial to a jury, a verdict was returned against plaintiff, and in favor of defendants, on plaintiff's cause of action, and in favor of plaintiff, and against defendant Singer, on the latter's counterclaim. Plaintiff thereupon filed a motion for a new trial upon his cause of action, and when the same was overruled, he gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.
Since the only appeal is by plaintiff from the judgment for defendants on his cause of action for $3,000, it follows that appellate jurisdiction is in this court. Beahan v. St. Louis Public Service Co., Mo.App., 213 S.W.2d 253. It is to be borne in mind that defendant Singer did not appeal from the judgment for plaintiff on his counterclaim for $8,500, and the decision on that branch of the case is no longer in dispute.
The case was submitted by plaintiff upon the charge that defendant Singer "carelessly and negligently drove said Buick motor vehicle into collision with the rear end of plaintiff's said gasoline-transport trailer".
Plaintiff bases his claim for a reversal upon the sole ground of error in the giving of instruction D-I, which read as follows: "The Court instructs the jury that although you may find and believe from the evidence that the defendant was guilty of negligence as charged by plaintiff, yet, if you further find and believe from the evidence that the plaintiff was also guilty of negligence, in failing to exercise the highest degree of care in the operation of his tank-truck upon the highway, by reason of the fact that plaintiff (through his employee) negligently and carelessly failed to exercise the highest degree of care in stopping and bringing to a standstill his motor truck on the traveled portion of U.S. Highway No. 36, and in failing to exercise the highest degree of care to remove his said motor truck from the traveled portion of the highway upon stopping the same, and if you further find and believe from the evidence that said act or acts of negligence (if you find such act or acts to be negligence) directly caused or contributed to cause plaintiff's damages, then plaintiff Bowzer cannot recover in this case on his cause of action, and your verdict will be for defendant on plaintiff's cause of action."
The instruction was given at the instance and request of defendants, and submitted the question of Day's contributory negligence as a defense to plaintiff's cause of action.
Plaintiff first assails the instruction upon the ground that it only required a finding of legal conclusions, and did not require a finding of facts from which a logical inference of Day's negligence could be drawn, either with respect to his stopping his truck on the pavement, or with respect to his failure to have removed his truck from the pavement upon stopping the same.
It seems to be plaintiff's idea that as a prerequisite to any logical finding that Day had been guilty of negligence in stopping his truck on the traveled portion of the highway and in failing to move it off of the pavement, the instruction should have submitted such specific factual matters as the respective positions of the vehicles when the stopping occurred; the reason for the stopping; the removability of the truck; the duration of time during which it was parked on the pavement; and whether or not any warning was given.
In the first place, the facts with respect to a large portion of all such matters were wholly undisputed, as counsel are undoubtedly aware. In no event could there have been any point in having the jury find facts about which no issue was presented. But even as to those factual matters which were in controversy, it was not the function of the instruction to submit every disputed evidentiary fact arising in the case, but only the ultimate essential facts which it would be necessary for the jury to find in order to defeat plaintiff's recovery on the ground of contributory negligence. Vrooman v. Hill, 347 Mo. 341, 147 S.W.2d 602.
As it happened, there was no dispute about the fact that Day had stopped his truck on the pavement and had not pulled off and parked it on the shoulder. The only question was whether such admitted conduct had constituted negligence; and since the answer did not appear as a matter of law, the question was one to be submitted to the jury. In reaching their conclusion the jury were of course expected to consider all the facts and circumstances in evidence which bore upon the question of whether Day had exercised the proper degree of care in stopping and leaving his truck upon the pavement, but there was no requirement that such purely evidentiary facts should be hypothesized in the instruction. On the contrary, the instruction was correct in asking for no further finding by the jury than such as was necessary, under the issues, to establish a basis for the legal proposition to which the instruction was directed.
It is to be observed that the instruction was predicated upon what plaintiff refers to as two propositions of negligence, the first, Day's act "in stopping and bringing to a standstill his motor truck on the traveled portion of U.S. Highway No. 36", and the other, his failure "to remove his said motor truck from the traveled portion of the highway upon stopping the same".
Plaintiff regards the first proposition as having constituted the "attempted" submission of mere general negligence, but treats the second proposition as having amounted to the submission of "abortive" specific negligence. Proceeding upon such assumption, he argues, first, that it was error to have submitted the charge of general negligence when specific negligence had been pleaded; and second, that it was error to have combined the submission of both general and specific negligence in the instruction.
The reason which plaintiff gives for regarding the first proposition as an "attempted" submission of general negligence is that no particular surrounding facts or circumstances were set forth. If he were correct in his complaint, it would seem that it should extend as well to the second proposition, which he treats as the submission of "abortive" specific negligence. In fact, the two propositions were so similarly submitted in the type of language employed that it is difficult to comprehend how they could be differentiated to the point of regarding the one as general and the other as specific.
The truth is, however, that plaintiff has no basis for a complaint growing out of the character of the negligence submitted. All of the instructions were to be read together and as a single charge; and in plaintiff's own principal instruction the relative movements and positions of the two vehicles had been hypothesized for a finding by the jury, even though there had been no dispute about the fact that both had been eastbound on the highway, and that Singer's automobile had run into the rear of plaintiff's truck. The instruction not only identified the party charged with contributory negligence, but also particularized as to the respect in which he had allegedly been guilty of such negligence. In these circumstances the negligence submitted by both propositions (no less than the negligence submitted in plaintiff's own principal instruction) must be held to have been specific in its character. State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68; Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Richardson v. Kansas City Rys. Co., 288 Mo. 258, 231 S.W. 938.
The next criticism of the instruction is that there was no evidence upon which to base the proposition relating to the stopping of the truck on the highway; and further, that the stopping of the truck on the highway could not have had any proximate causal connection with the collision.
Plaintiff of course admits the fact that the truck was stopped on the highway, but complains that there was no evidence from which it could reasonably be inferred that Day was negligent in stopping his truck as he did. Considering the evidence relating to the rainy weather, the wet and slippery pavement, and the hazy condition of the atmosphere, it was clearly a question for the jury whether Day had been guilty of negligence in keeping his truck at a standstill on the traveled portion of the highway when he could unquestionably have driven by the scene on the north side of the pavement, as other vehicles did, or else might possibly have pulled off to the south on the dirt shoulder, as certain of the evidence tended to show that he could have done. Furthermore, if the jury found that he had been guilty of negligence in stopping his truck as he did, there could be no room for disputing the jury's right to have made the additional finding of a causal connection between his negligence in such respect and the collision which occurred when Singer's automobile ran into the rear of the truck.
For his next point plaintiff complains of the submission of the proposition relating to Day's failure to have removed his truck from the traveled portion of the highway. He argues, first, that it was error to have submitted such proposition unless the pertinent rules and regulations of the state's administrative departments had been both pleaded and offered in evidence; and second, that the submission was improper in the absence of a requirement for a definite finding that the truck could in fact have been removed from the highway.
As for the first complaint, it is enough to say that the charge in question was one of common law negligence within the purview of both the pleadings and the evidence, and was not based upon any nonobservance of the rules and regulations of any state agency having to do with the operation of motor vehicles upon the highways of the state.
As for the second complaint, the answer is that a finding that the truck could have been removed from the pavement was necessarily included in the requirement for a finding that Day had negligently failed to remove it. In other words, the jury could not have found Day guilty of negligence in failing to remove his truck from the pavement unless they had found that it would have been possible for him to have done so. Ralph Claus testified on cross-examination that the dirt shoulder was solid to the south of the pavement, and that there would have been plenty of room for the truck to have been driven out upon the shoulder. Day testified, on the contrary, that the shoulder would have been too soft to have supported his heavy truck. In this situation the question of whether the truck could have been driven over and stopped upon the shoulder was one for the jury to determine, and there was no error in the manner in which the question was submitted by the instruction now under review.
After hypothesizing the propositions relating to the stopping of the truck on the highway and the failure to remove it from the highway, the instruction then followed with the direction for the jury to find whether said act "or" acts directly caused or contributed to cause the collision; and because of the use of the conjunction "or", plaintiff treats the instruction as having been drawn in the disjunctive. From this premise he argues that the instruction was erroneous in permitting the jury to find that either proposition had caused the collision instead of requiring a finding that both propositions had entered into the chain of causal connection.
Technically speaking, there is a certain basis for the interpretation which plaintiff puts upon the instruction, but even so there was no error committed. Treating the two propositions as entirely separate and distinct, there was nevertheless evidence to support the submission of both of them, so that it could avail plaintiff nothing to consider the question of proximate cause as having been disjunctively submitted. Ayres v. Key, Mo.Sup., 221 S.W.2d 719; Harrell v. Berberich, Mo.Sup., 222 S.W.2d 733.
The truth is, however, that the ultimate question submitted by the instruction was the single question of whether Day had himself been guilty of negligence in the operation of his truck upon the highway. This depended, as the instruction was worded, upon whether he had failed to exercise the highest degree of care in stopping his truck and bringing it to a standstill upon the traveled portion of the highway, and in failing to remove it from the traveled portion of the highway. Actually the two so-called propositions referred to one and the same thing, so that from a practical standpoint there was only one matter for the jury to consider upon the questions of negligence and proximate cause. To say, under the facts and circumstances of this case, that Day was negligent in stopping his truck and bringing it to a standstill upon the traveled portion of the highway was but another way of saying that he was negligent in failing to remove it from the traveled portion of the highway; and we can see no basis for plaintiff's insistence that the instruction was prejudicially misleading and confusing in respect to the identity of the negligence submitted.
The last objection is that the instruction not only assumed the existence of the acts submitted, but also assumed that such acts had been negligently committed. It would be no cause for complaint if the instruction had assumed the existence of the acts, since it was conceded that Day stopped his truck and left it at a standstill on the pavement throughout the whole occurrence. While the instruction was not as carefully drawn as might be wished, it none the less appears that all the things submitted were predicated on the initial requirement that the jury should find and believe them from the evidence; and there was a specific requirement that the jury should find the act or acts to have been negligence.
In conclusion plaintiff asks that even though we should hold, as we are holding, that no prejudicial error was committed in the giving of instruction D-I, we should nevertheless reverse the judgment and remand the cause to permit him to try the case upon the theory of negligence under the humanitarian doctrine. The question of whether a case shall be remanded for retrial only arises where the judgment is to be reversed, and a judgment is only reversed where the record reveals that error was committed at the trial. In this case the trial was free from error in the only respect in which plaintiff suggests that error was committed, and in the absence of error we would have no justification whatever for reversing the judgment which defendants have obtained.
It follows that the judgment rendered by the Hannibal Court of Common Pleas should be affirmed; and the Commissioner so recommends.
The foregoing opinion of BENNICK, C., is adopted as the opinion of the court.
The judgment of the Hannibal Court of Common Pleas is, accordingly, affirmed.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.