Opinion
February 2, 1951.
1. — Appeal and Error. In considering whether there was sufficient evidence of negligence to submit question to jury, Court of Appeals must consider the whole evidence and give prevailing party the benefit of all facts and circumstances favorable to or tending to support his or her theory of the case with every reasonable inference that may be drawn therefrom, while evidence of losing party or parties contradicting prevailing party's evidence, or any evidence favorable to loser, must be excluded from consideration.
2. — Automobiles. Evidence that defendants who were operating automobile with which automobile in which plaintiff was driving collided parked their automobile on left side of highway at least partially on the pavement with the bright headlights burning presented question for jury as to whether such defendants were guilty of negligence rendering them liable for injuries sustained by plaintiff in the collision, notwithstanding that at times of accident such defendants, who were local officers, were removing a drunk from cab of parked truck. R.S. 1949, 304.010, 304.020, 304.370.
3. — Automobiles. Fact that local officers were removing drunk from cab of parked truck when their automobile parked on left side of highway at least partially on the pavement with the bright headlights burning was struck by another automobile, did not relieve officers from exercising the highest degree of care on ground that they were on emergency mission. R.S. 1949, 304.010, 304.020, 304.370.
4. — Automobiles. A motorist is not required to slow down or stop, because headlights of vehicle on left side of highway are advancing in his direction, and it is only when he had knowledge, or by exercise of highest degree of care should have such knowledge, that advancing vehicle is not intending to move to the right, that he must take all reasonable precautions to avoid a collision.
5. — Automobiles. Evidence failed to establish as a matter of law that driver of automobile in which plaintiff was occupant was guilty of negligence in striking automobile which appeared to be approaching from opposite direction, but which was parked on its left side of highway partially on highway with bright headlights burning.
6. — Appeal and Error. In action arising out of automobile collision brought against both owner and driver of automobile in which plaintiff was an occupant and operators of other automobile, instruction that if jury found that operators of other automobile, in exercise of the highest degree of care, were negligent in parking automobile as evidence showed they did, and that such acts caused or contributed to injury verdict should be for plaintiff, if erroneous, was harmless.
7. — Jury. Diligence must be used in ascertaining qualifications of jurors, and any matter within knowledge of counsel or knowledge that might be acquired by exercise of due diligence is considered as waived unless acted upon at the time.
8. — New Trial. Alleged misconduct of juror in failing to answer question on voir dire examination as to whether attorney for one of defendants had ever represented her as counsel did not authorize a new trial, where no action was taken by counsel to require juror to make a specific answer to the question, and attorney for such defendant informed the other attorneys that he had at one time represented the juror in collection of a note.
Appeal from Circuit Court of Dunklin County. — Hon. James V. Billings, Judge.
AFFIRMED.
Ward Reeves for Appellants Dewey Ramsey and Virgil Greenway.
The court erred in refusing to give to the jury motion for a directed verdict for Ramsey and Greenway. The court erred in submitting the case to the jury, for the reason that under the undisputed evidence there is no casual connection between these appellants' negligence (if there was negligence) and the injuries of the plaintiff. Also, for the further reason under the undisputed evidence it was the negligent acts of Young, the driver of the Ford automobile in which plaintiff was a guest, which constituted the sole, immediate, direct and proximate cause of plaintiff's injuries, and the alleged negligence of these appellants was not a concurring cause thereof. Vassia v. Highland Dairy Farm Co. et al., 232 Mo. App. 886, 104 S.W.2d 686; Inman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477 l.c. 481; Smith v. Producers Cold Storage Co., 128 S.W.2d 299, l.c. 304; Blashfield, Cyclopedia of Automobile Law and Practice, Volume 10, Section 6605, page 609. II. A. Plaintiff's Instruction XI-P given by the court was erroneous in that it instructed the jury that appellants (defendants) Ramsey and Greenway were required to use the highest degree of care. The undisputed evidence was that these two police officers were making an emergency arrest, and as such they were not required to use the highest degree of care. Hogan v. Fleming et al., 218 Mo. App. 172, 265 S.W. 875; Michael v. Railroad, 161 Mo. App. 53, 143 S.W. 67; Duffy v. Kansas City Ry. Co., 217 S.W. 883; Green v. Railway Co. of St. Louis, 165 Mo. App. 14, 145 S.W. 861; Raymore v. Kansas City Public Service Co., 141 S.W.2d 103; Edberg v. Johnson, (Minn.) 184 N.W. 12; Devine v. Chicago, (Ill.) 172 Ill. App. 246. B. Plaintiff's Instruction XI-P, given by the court, was also erroneous in that it failed to set forth the circumstances under which the police officers were acting at the time of the accident. See cases cited under point A. above. III. The court erred in refusing to give to the jury Ramsey's and Greenway's Instruction No. 4, for the reason that under the undisputed testimony, Young, the driver of the Ford automobile, was guilty of negligence as a matter of law. Van Sickel v. F.M. Stamper Co., 198 S.W.2d 539; Winniger v. Bennett et al., 104 SW (2) 413; Wilson v. Holloway et al., (Ark.) 208 S.W.2d 178. IV. The court erred in refusing defendants Greenway and Ramsey a new trial, for the reason that jurors J.W. Reynolds and Mrs. J.W. Reynolds, his wife, were asked on voir dire examination if either of the adverse counsel had represented either or both of them as attorneys, and both of said jurors, J.W. Reynolds and Mrs. J.W. Reynolds, failed and refused to divulge that E.L. Ford, Attorney for defendant B.W. Young, had recently represented them. Piehler v. Kansas City Public Service Co., 211 S.W.2d 459; Webb v. Mo-Kan-Rex Ry. Co., 116 S.W.2d 27 Reich v. Thompson, 142 S.W.2d 486; O'Brien v. Vandalia Bus Lines, Inc., 173 S.W.2d 76.
McHaney McHaney, Hal H. McHaney, Flake L. McHaney for Appellant-Respondent.
Points relied on with citation of authorities in support of judgment in favor of Plaintiff and against Defendants Ramsey and Greenway. (1) The Court properly refused to grant the motion for a directed verdict in favor of defendants Ramsey and Greenway. A. It is undisputed that the DeSoto automobile operated by defendants Ramsey and Greenway was parked on the wrong side (left-hand side) of the highway and extended at least one foot upon and over the paved and traveled portion of the highway. To fail to park the vehicle as near the right-hand side as practicable is a violation of Section 8385, Mo. R.S.A. 1939, and as such is negligence per se. St. Ferdinane Sewer District of St. Louis County et al. v. Turner, 356 Mo. 804, 203 S.W.2d 731; Benoist v. Driveway Co. (M.A.) 122 S.W.2d 86; Scott v. Kansas City Public Service Company (M.A.), 115 S.W.2d 518; Beck v. Wurst Coal and Hauling Company (M.A.), 293 S.W. 449. B. It is negligence per se to allow a vehicle to stand on the traveled portion of the highway. House v. Santa Fe Trail Transportation Company, 217 SW (2) 382. C. It cannot be said as a matter of law that there was no casual relationship between the negligence of Greenway and Ramsey and the injuries to the plaintiff. This is a question for the jury. Jenkins v. Springfield Traction Co., 230 Mo. App. 235, 96 S.W.2d 620; McCloskey v. Renne et al., 225 Mo. App. 810, 37 SW (2) 950 D. To constitute proximate cause it is only necessary that after the event has occurred it appears to have reasonably been the natural and probable consequence. If the accident would not have occurred but for the negligence of these defendants, their negligence constitutes the proximate cause. It cannot be said as a matter of law that the accident would not have occurred if Ramsey and Greenway had not negligently parked on the wrong side of the road and on the traveled portion thereof. Bowman v. Moore, 237 Mo. App. 1163, 167 S.W.2d 675; Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924. E. Where the negligence of a defendant combines with the negligence of another, he is liable although his negligence without such other intervening cause or negligent acts would not have produced the injury. In this case there was either joint negligence of defendants Ramsey and Greenway with that of defendants Holmes and Young that caused plaintiff's injuries or, as the jury found, there was the sole negligence of defendants Ramsey and Greenway causing such injuries. In either event plaintiff was entitled to recover. Gray v. Kurn, 345 Mo. 1027, SW (2) 558; Hauck Bakery Co. v. Haid et al., 330 Mo. 76, 62 S.W.2d 400; Ridenhour v. Oklahoma Contracting Co. (M.A.), 455 S.W.2d 108. The trial court properly gave plaintiff's Instruction No. XI-P.A. The trial court properly instructed the jury that the standard of care required of these defendants in the operation and control of the automobile was the highest degree of care. No exception to this statutory standard is made for police officers. Sec. 8383, Mo. R.S.A. 1939. (1) Although repeatedly requested to do so, the courts of Missouri have refused to graft any exception thereon and have held that it is the proper standard of care which a plaintiff driver owes to himself. Jackson v. Southwestern Bell Telephone Co., 281 Mo. 358, 219 S.W. 655; Rohmann v. City of Richmond Heights (M.A.), 135 S.W. 378. (2) As well as being the standard of care owed toward a guest. Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471. (3) Even if there were an exception it would not be the broad exception contended for here and would not apply to a parked vehicle or to any situation where no emergency exists. Ruth v. Rhodes, 66 Ariz. 129, 185 P. (2) 304. (4) Defendants Ramsey and Greenway were police officers of the City of Senath, Missouri. As such their jurisdiction did not extend beyond the city limits. They had just completed the arrest, without a warrant, of persons two miles to two and one-half miles outside of the city limits. Under such circumstances they were beyond their authority. Therefore, it is irrelevant as to what standard is applicable to police officers exercising police duties. State ex rel. Kaercher v. Roth et al., 330 Mo. 105, 49 S.W.2d 109; Rogers v. Schroeder et al., 220 Mo. App. 575, 287 S.W.2d 861; State ex rel. McNamee et al. v. Stobie, 94 Mo. 14, 92 S.W. 191. B. Instruction XI-P is not in error for failing to set forth all the circumstances surrounding the police officers at the time of the accident. (1) It was not error to fail to set forth the fact that defendants Ramsey and Greenway were police officers of the City of Senath, Missouri, and that they had parked their automobile just prior to making an arrest. It is not error to fail to particularize facts which are not in dispute and which are conceded. Edwards v. Bell (M.A.), 103 S.W.2d 315; Van Leer v. Wells (M.A.), 263 S.W. 493; See also Corbin v. Kansas City C.C. and St. J. Ry. Co. (M.A.), 41 S.W.2d 832. (2) It was not error to fail to require a negative finding as to an emergency situation because it was not pleaded and there was no evidence to justify it and was never an issue in the case. Easterly v. American Institute of Steel Construction et al., 349 Mo. 604, 162 S.W.2d 825; Beboutt v. Kurn et al., 348 Mo. 501, 154 S.W.2d 120. (3) The rule that no part of plaintiff's case necessary to its maintenance can be omitted from an instruction attempting to cover the entire case does not require a negative finding on purely defensive matters such as emergencies, contributory negligence or acts of God. Wyatt v. Central Coal and Coke Co. (M.A.), 209 S.W. 585. (4) The police officers were outside their jurisdictional limit. They cannot avail themselves of an emergency defense here because the only possible claim of an emergency here would be an emergency arrest, which arrest is beyond their jurisdiction and authority as city police officers. See cases cited under II A (3) above. (5) The instruction complained of required the jury to determine if parking the automobile on the wrong side of the highway and on a traveled portion thereof, constituted negligence. These acts are negligent per se and, therefore, defendants cannot complain of an instruction which was more favorable than they deserved. See cases cited under I A, B, above.
Points relied on with citation of authority in support of the appeal of plaintiff, Glenda Lemonds, from the verdict and judgment in favor of defendants Holmes and Young and against plaintiff Glenda Lemonds. (1) The court erred in refusing to give the jury Plaintiff's Instruction No. I-P.A. Defendant Young admitted that he approached the DeSoto automobile traveling 45 to 55 miles per hour and observed the parked automobile for at least a quarter of a mile and that he thought it was partially on his side of the road and thought that maybe the driver was drunk, but continued on into the headlights of an automobile which was all the way on the shoulder, except for one foot, without applying his brakes or swerving his automobile until he was within 26 feet thereof and that he was still going 20 miles per hour at the point of impact. Under this testimony, plaintiff was entitled to a directed verdict against defendants Holmes and Young because these admissions of the driver of the Ford automobile convict him of negligence as a matter of law. Van Sickel v. F.M. Stamper Co. (M.A.), 198 S.W.2d 539; Wilson v. Holloway et al. (Ark.), 200 SW (2) 178; Kobusch v. Ruberiod Co. et al., 355 Mo. 48, 194 S.W.2d 911; Winniger v. Bennett et al. (M.A.), 104 S.W.2d 413; Baer v. Devore et al. (M.A.), 177 S.W.2d 674. B. Defendant Holmes, the son of the owner of the automobile, was exercising direction and control over the automobile at the time of plaintiff's injury; therefore, the negligence of defendant Young is the negligence of defendant Holmes. Haynie v. Jones, 233 Mo. App. 948, 127 S.W.2d 105; Hodge v. Feiner, 338 Mo. 268, 90 S.W.2d 90; Counts v. Thomas, 63 S.W.2d 416.
Elbert L. Ford, Jones and Jones for Respondents Carlmac Holmes and B.W. Young.
(1) There is no merit in assignment of error of Appellant-Respondent, Glenda Lemonds, that the Court erred in refusing to give to the jury Plaintiff's Motion for a directed verdict as against Respondents Holmes and Young. There is no merit in Appellants' Ramsey and Greenway third assignment of error that the trial court erred in refusing to give to the jury Ramsey's and Greenway's Instruction No. 4 for the reason that under the undisputed testimony Respondent, Young, the driver of the Ford automobile, was negligent as a matter of law. This for the reason that it is the province of the jury to determine all questions of fact and especially so where all of the evidence is oral and even though it all comes from one side and be uncontradicted. O'Malley v. The Missouri Pacific Railway Company, 113 Mo., l.c. 325, 20 S.W. 1079; McReynolds v. Quincy, Omaha Kansas City Railway Company, 115 Mo. App., l.c. 680, 91 S.W. 446; Linderman et al. v. Carmin, 142 Mo. App., l.c. 527, 127 S.W. 124. The Respondent, Young, was not guilty of negligence as a matter of law because he was unable to tell the exact location and position of the DeSoto automobile. Conrad v. Hamra et al., 253 S.W. 808 (not officially reported). There is no merit in Ramsey and Greenway's assignment of error No. 4 which states that the Court erred in refusing Appellants Ramsey and Greenway a new trial for the reason that two of the jurors failed to state that they had previously been employed by E.L. Ford, Attorney for Respondent B.W. Young in this litigation. This for the reason for that a reading of the transcript, pages 132-160, will disclose that all attorneys involved in the trial of this suit had full knowledge of the past representation of Mrs. J.W. Reynolds by both Hal H. McHaney and Elbert L. Ford. This assignment of error has no merit for the further reasons: (a) Under the facts in this case Mrs. Reynolds' jury service could not have been the subject of a peremptory challenge. 50 C.J.S., Para. 221, page 1009; State v. Burns, 172 S.W.2d 259, 351 Mo. 163. (b) One co-defendant cannot take advantage of an alleged error in favor of other defendants, unless the error complained of prejudices the right of such co-defendant as to their defense. Barr v. Nafziger Baking Company, 328 Mo. 423, 41 S.W.2d 559; Storey v. The People's Motorbus Company of St. Louis, 327 Mo. 719, 37 S.W.2d 898; Nevins v. Solomon et al., 235 Mo. App. 967, 139 S.W.2d 1109, l.c. 1109, 1112, 1113.
This case arose from an automobile collision on State Highway 25 about 2½ miles south of Senath, Missouri. It was tried to a jury, which returned a verdict against plaintiff and for defendants Holmes and Young and for plaintiff and against defendants, Ramsey and Greenway in the sum of $5,000.00. From a judgment as to Holmes and Young, plaintiff appeals, and defendants Ramsey and Greenway appeal.
Greenway was night marshal of Senath and Ramsey was day marshal, or Chief of Police, under whom Greenway worked. On the night of November 22, 1947, at about 10 o'clock, they received word that two men were driving a truck upon the streets of Senath, that they were drunk and that the truck was without lights. The officers borrowed a DeSoto automobile from a friend of Greenway's, started out to investigate and, if necessary, apprehend these violators. They finally located them within the city limits and followed them as they were going south on State Highway 25, their truck weaving from side to side of the highway. The officers followed for more than two miles and until the truck was driven out on the highway shoulder. At the direction of Ramsey, Greenway, who was driving the DeSoto, went on south of the truck, approximately one-fourth mile, turned around and came back north, parking the DeSoto partially on the west and left hand side of the highway, with the lights on. They got out and found the truck stopped on the highway and the driver of the truck "slumped" over the wheel in a drunken condition. They took the driver and his companion, who was also drunk, out of the truck and put them in the back seat of the DeSoto. Greenway then got in the truck under instructions from Ramsey, and backed it off the highway and into the west ditch. The left side of the truck was about four feet west of the paved portion of the highway, and it was facing south.
In the meanwhile, plaintiff, her girl friend, Frances Bess, and defendants, Holmes and Young were riding around in a Ford Coach. They had been to Kennett and driven back down to Senath with the intention of going to the midnight show. Defendant Holmes and one Paul Buck had driven the car to Kennett where they had picked up the two girls and Buck had driven back to Senath, at which place Young asked Holmes if he should drive and was told to go ahead. There Paul Buck left the party. Young then drove the car with Frances Bess sitting to his right in the front seat. Holmes was on the left side of the rear seat and plaintiff was sitting to his right. They drove out of Senath on Highway 25 until they had passed what was known as the one mile curve and then started south on a straight stretch of road, which had no curves for approximately 2½ miles. They passed a truck on the one mile curve and then started down the straight highway toward Cardwell. Young, driving the car, saw the lights of the parked DeSoto. when it was about one-fourth mile south of him. He flashed his lights two or three times from dim to bright and back to dim, signaling the car, the lights of which he saw ahead, endeavoring to cause the supposed driver thereof to dim his lights. When he made the first signal, he took his foot off the accelerator but there was no response from the car ahead. It appeared to him that the car was advancing in the middle of the highway and he assumed that the driver would turn to the proper side of the highway before they met. He watched the road all the time and he reduced his speed when he was about 300 yards from the DeSoto. He had applied his brakes and slowed down from about 30 miles an hour to 35 or 40, when he discovered the DeSoto was not going to turn. He applied his brakes again and turned to the left in an attempt to avoid a collision and the right half of the front of the Ford struck the right half of the front of the DeSoto, resulting in the injuries complained of. At the time of the collision, his estimated speed was twenty miles per hour. He was rendered unconscious by the impact.
Young testified that the lights of the DeSoto were on bright. Defendants Ramsey and Greenway testified they were on dim. Greenway testified that the collision occurred immediately after he had backed the truck into the ditch and while he was alighting from the cab with his right foot on the fender and his left foot on the ground. He estimated the speed of the Ford at 60 miles per hour and was of the opinion that it did not slow up before the collision.
The plaintiff suffered grievous injuries and there is no contention that they were insufficient to support the verdict of $5,000.00, but it is contended by appellants Ramsey and Greenway that the court committed error in not sustaining their motion for a directed verdict as to them at the close of plaintiff's evidence and at the close of all the evidence, for the reason that the evidence showed no causal connection between the acts of defendants and plaintiff's injuries.
Plaintiff, in her appeal, contends that Young and Holmes were guilty of negligence as a matter of law and for that reason, the verdict for them should be set aside. Other questions raised in the briefs will be discussed after we have decided these two main contentions.
In considering whether there was sufficient evidence of negligence to submit the question to the jury, this court must consider the whole evidence and give the prevailing party the benefit of all facts and circumstances favorable to or tending to support his or her theory of the case with every reasonable inference that may be drawn therefrom, while the evidence of the losing party or parties contradicting the prevailing party's evidence, or any evidence favorable to the loser, must be excluded from consideration. Silvey v. Herndon, 234 S.W.2d 355.
Bearing this rule in mind, plaintiff's evidence showed that the two officers followed two drunken persons, driving on the highway without lights, for more than 2 miles. The car they were following was weaving from one side of the highway to the other and finally "pulled off the black top on the shoulder." The officers drove on past for approximately ¼ mile, turned around and came back to where the truck was stopped on the highway, the drunken driver slumped over the wheel. Now instead of parking on the right and east side of the road and dimming their lights, (which would have been as easy or easier) they left their lights on bright, crossed the left half of the highway and parked on the left and west side of the center of the pavement. Both officers testified that the car was parked about one foot on the west edge of the pavement but the evidence also showed that the right front half of the Ford struck the right front half of the DeSoto. Young, the driver of the Ford, testified that he was always on the paved portion of the road and Greenway said that immediately before the time of the collision, the Ford might have been within one foot of the west edge of the pavement. From this evidence, the jury would have been justified in believing that the DeSoto was parked more than one foot on the slab, otherwise, the right half of the two cars could not have collided. This conclusion was strengthened by the testimony of defendant Young and Frances Bess that the lights of the DeSoto appeared to be in the center of the highway and advancing. It is true that one of the defendants testified that the shoulder on the west of the highway was soft and slick but he does not say that it was impossible to have parked the car off the highway on the west side. He testified:
"Q. Could you have parked your car any farther on the shoulder? A. May have but I was afraid I may get stuck and we wanted to get the drunks and get back to town."
The evidence shows no reason why he did not park on either the east side or east shoulder of the highway. It had been raining and the pavement was wet, in fact, one of the officers testified that it was sprinkling at the time, and the wet pavement would naturally, to some extent, affect the reflection of the headlights. Greenway testified that he though the speed of the Ford was 55 or 60 miles an hour at the time of the collision, and also that he had seen the headlights up the highway at the time he drove up in the DeSoto. They loaded the prisoners in the DeSoto and Greenway backed the truck in the ditch and was alighting from the cab when the collision occurred. He estimated it took three minutes to park the truck. Ramsey estimated the whole time from their arrival until the collision was four minutes. If this is true, the Ford could not have been traveling at the speed estimated by the officer, even if it were 1½ miles away when he first saw it.
At the time of the collision, Greenway was stepping from the truck, his right foot was on the fender and his left foot on the ground, which would have placed his back to the oncoming Ford. While he was in the truck he had been watching Ramsey south of him, directing his activities with a flashlight. From his admitted position, the jury would have been justified in assuming that his observation as to the speed of the Ford and its location on the highway was not accurate, to say nothing of his failure to see Young blink his lights from bright to dim. He said the Ford passed close to his legs but also that it might have been one foot from the west edge of the pavement. Taking all these facts into consideration, the jury must have thought, and certainly could have had reasonable grounds for so thinking, that the DeSoto was parked considerably more than one foot from the west edge of the pavement and in the path of south bound traffic. Parked as it was and with the lights "on bright", it seems to us that it was a dangerous and hazardous obstacle to south bound traffic and that parking it in such position, under the circumstances, was negligence. This certainly contributed to plaintiff's injury. Had it not been so parked, the collision would not have happened.
We have read the authorities cited by the appellant officers upon the contention that they were not required to exercise the highest degree of care because they were officers and were on an emergency mission. These cases are entirely different in facts from the case before us. It is stated in the cases cited relative to policemen and firemen, that ordinary traffic regulations do not apply to them because of the urgency of their missions and the imperative emergency that confronts them. The reason for this rule as to firemen is well stated in Michael v. K.C. Western Railway Co. 143 S.W. 6, 161 Mo. App. 53, where it was said:
"Fire is the best of servants and the most tyrannical of masters. When, escaping control, it breaks out in thickly populated places, its enormous capacity for evil and the rapidity of its expansion makes the performance of the task of regaining control over it one of general public concern and creates an imperative emergency that will brook no delay, however slight."
But the reasoning in these cases does not apply to the case before us. There is a vast difference in the urgency and imperative necessity of firemen rushing to the scene of a conflagration or policemen hurrying to prevent robbery, rapine or murder and the action of a city marshal in pulling a somnolent drunk from the cab of a parked truck, with lifeless engine, so he can be taken to the local bastile, even if the truck is lightless and on a highway.
It seems that the two officers had followed the drunken driver for over two miles in a rather leisurely fashion. When they turned around and came back to where the truck was standing on the highway, instead of stopping on the right and east side of the road and parking on the shoulder, they pulled across the part of the pavement used for southbound traffic, and parked at least partially on the pavement with their bright lights burning. This action on their part and the position of the parked car was not due to the urgency of their mission, neither was it due to an imperative emergency, and they did not come within the exception urged. The jury found that it was negligence and we think it was correct. If they were going to park, they should have done so as near the east side of the highway as practical. (Sec. 8385 Mo. R.S.A.) Furthermore, there is no exception in the statute. (Sec. 8383, Mo. R.S.A.) It requires "every person" to exercise the highest degree of care when operating a motor vehicle on the highways of this state. Even if the courts could read into this statute an exception applying to policemen and firemen when officially acting under urgent necessity, the facts here do not bring Ramsey and Greenway within it. Neither should they have left their headlights on "bright". (Sec. 8386 P, Mo. R.S.A.) Under the circumstances, it was their duty to use the highest degree of care and the court was correct in so instructing the jury.
Neither do we think that Young and Holmes were guilty of negligence as a matter of law. When Young passed a truck and started down the straight stretch of highway, he saw the parked DeSoto approximately 300 yards ahead. It appeared to be in the center of the road and advancing toward him. He knew that many drivers would drive in the center of the road but pull to their right when meeting traffic. He assumed that was the situation here. However, he took his foot off the accelerator and blinked his lights as a signal for the car ahead to switch his lights to dim. When it appeared that the car was not going to turn to its right, he applied his brakes and later turned to the left, endeavoring to avoid a collision. At the time of the collision, his speed, he says, was 20 miles per hour. A motorist is not required to slow down or stop, merely because headlights are advancing in his direction. It is only when he has knowledge, or by the exercise of the highest degree of care could have such knowledge, that the advancing car is not intending to move to the right, that he must take all reasonable precautions to avoid a collision. We think whether he was negligent under all the facts in this case was a jury question for the jury, and they decided in his favor and against the plaintiff.
Wilson v. Holloway et al., (Ark.) 208 S.W.2d 178, is cited as authority. In that case, the defendant had parked his truck on a side road near and on the left side of the highway, but entirely off the paved portion of the road. The lights were on but the testimony was conflicting as to whether they were bright or dim. In the car that collided with it were four persons and the evidence shows they had been drinking and were probably intoxicated at the time. Holloway, who was driving, drove off the highway onto the shoulder and hit defendant's truck, head-on. The only negligence submitted to the jury was that defendant failed to dim his lights after being signalled to do so. The Supreme Court held that the defendant was not guilty of negligence but that the plaintiffs were guilty of negligence as a matter of law. It differs from the case before us in so many essential particulars that it is not persuasive here. In that case, if plaintiff had merely stayed on the highway where he was supposed to be, the accident would not have happened. The court said: "Holloway must have known that the truck was parked on the shoulder of the highway, yet he made no effort to turn the car back on the concrete." In the case at bar, the parked car had all the appearance of being in the center of the highway and advancing, and defendant Young so thought.
Appellants Ramsey and Greenway, in their brief state:
"Plaintiff's Instruction XI-P given by the court was erroneous in that it instructed the jury that appellants (defendants) Ramsey and Greenway were required to use the highest degree of care * *."
It is true that the court, in Instruction VII-P told the jury that persons operating motor vehicles on the highway are charged with exercising the highest degree of care, and from what has already been said, that instruction applied to defendants, Ramsey and Greenway.
Instruction XI-P complained of does not exactly tell the jury that such burden was on Ramsey and Greenway but it says:
"* * if you find and believe that defendants Dewey Ramsey and Virgil Greenway, in the exercise of the highest degree of care, were negligent * *"
in negligently and carelessly parking the car as the evidence showed they did, and that such acts caused or contributed to the injury, their verdict should be for the plaintiff. We are unable to see how a person, while exercising the highest degree of care, could at the same time be negligent. But no objection is made to the instruction on that ground. We would not recommend this instruction as a model but taken into consideration with all the other instructions given in the case, we believe if it was error, it was harmless.
Objection is also made to this instruction on the ground that it failed to set forth the circumstances under which the police officers were acting at the time of the accident. In other words, it is contended that the court should have told the jury that the police officers were acting in an emergency and were not chargeable with the highest degree of care. From what has already been said, it is apparent there is no substance in this objection.
It is also complained that the court erred in failing to give an offered instruction on the part of Ramsey and Greenway stating that Young was guilty of negligence. Under our view of the case, this was not error because whether Young was guilty of negligence was a question for the jury.
This ruling also applies to plaintiff's requested and refused instruction (I-P) making a similar request.
In the motion for new trial filed by plaintiff, Glenda Lemonds, and in the motion for new trial filed by Dewey Ramsey and Virgil Greenway, each complained of the alleged misconduct of a juror by the name of Mrs. J.W. Reynolds. It is alleged that Mr. E.L. Ford, attorney for defendant Young, had previously been an attorney for Mrs. Reynolds; that she had been asked on the voir dire examination if Mr. Ford had ever represented her as counsel, and that she had not answered the question. The plaintiff in her brief has abandoned this portion of her motion for new trial but appellants, Ramsey and Greenway, insist that error was committed by the court in failing to sustain their motion on that ground.
The court took testimony on that question. The evidence showed that before the jury had gone into the box to be qualified that Mr. Ford, while sitting at the counsel table in the court room, had told Mr. Hal McHaney that he, Ford, had collected a note sometime previously for Mrs. Reynolds and also mentioned the fact that Mr. McHaney had acted as co-executor of the will of Mrs. Reynolds' first husband, J.W. Grantham, and had suggested that Mr. McHaney challenge her and that Mr. McHaney had answered that Mr. Ford could strike off the jurors he chose and that he, McHaney, would do likewise or words to that effect.
No action was taken by counsel to require Mrs. Reynolds to make a specific answer to the question whether she had ever been represented by Mr. Ford. After the plaintiff's challenges had been made, Mr. Ford, representing defendant Young, Mr. James M. Reeves and Mr. Geo. K. Reeves, representing Ramsey and Greenway and the law firm of Jones and Jones representing defendant Holmes, were in the jury room making challenges for the defendants. While in there, a discussion was had and Mr. Ford informed them all that he had at one time represented Mrs. Reynolds in the collection of a note and that Mr. Hal McHaney had also represented her in the settlement of her first husband's estate, and that he had called these facts to Mr. Hal McHaney's attention.
The law is well settled that diligence must be used in ascertaining the qualifications of jurors, that any matter within the knowledge of counsel or knowledge that might be acquired by the exercise of due diligence is considered as waived unless acted upon at the time. 50 C.J.S. Juries, Sec. 251, Page 1009. 66 C.J.S. New Trial, Sec. 23, Page 116. State v. Murray 292 S.W. 434, 316 Mo. 31. Cook v. Kansas City, 358 Mo. 296, 214 S.W.2d 430.
It seems to us that the attorneys for appellants Ramsey and Greenway, were put upon notice when, in the jury room, while challenges were being made, they were told by Mr. Ford who represented Young, that he had recently represented Mrs. Reynolds, that Mr. Hal McHaney had also represented her before her remarriage, and that he had called it to the attention of Mr. McHaney in the court room. As was said in 39 Am. Juris. New Trial, Sec. 44, p. 64:
"It is well settled that a party who is aware of any circumstance affecting the qualifications or the competency of a juror is bound to make his objection by way of challenge before that juror is sworn, and if he fails to do so, he is deemed to have waived the objection and cannot, after an adverse verdict, assert it as ground for a new trial; he may not speculate upon a favorable result by withholding his objection until after the verdict is returned, and then when the verdict is unfavorable, move for a new trial."
By further questioning juror Reynolds and requiring specific answers, full information could have been obtained and the matter corrected, if necessary, before the trial panel was selected and the trial begun.
The trial court heard all the evidence on the motion for new trial and overruled it and we think its decision was correct. Finding no error in the record, the judgment of the trial court should be affirmed. It is so ordered. Blair, J., and McDowell, J., concur.