Opinion
May 3, 1938.
1. NEGLIGENCE: Children. The law does not exact of a child of less than nine years that exercise of care exacted of an adult.
2. NEGLIGENCE: Submissible Case. Where defendant driving his car along the street next to automobiles parked at the curb when plaintiff, a boy eight years and nine months old, emerged from between the parked automobiles, was struck by defendant's automobile and injured, and where the evidence favorable to plaintiff showed defendant's automobile traveled approximately forty feet without changing its course or stopping after the boy was within his range of vision, a submissible case was made out.
3. NEGLIGENCE: Humanitarian Rule: Instructions. In an action for injuries to plaintiff, a boy under nine years of age, caused when struck by defendant's automobile as the plaintiff emerged from parked cars along the curb, an instruction in the usual form under the humanitarian rule, for plaintiff, directing the jury that if defendant saw or could have seen plaintiff in a position of imminent peril, etc., and if you further find "as a fact" that defendant saw, etc., in time, etc., and further find that the defendant "having in fact either of said opportunities as before stated" negligently failed to stop, etc., they would find for plaintiff, the words quoted being inserted in the instruction by the court, the instruction did not place an undue burden upon plaintiff taken with an instruction for defendant which informed the jury that the burden of proof was upon the plaintiff and that he must establish not only that he was struck and injured but must also show by the preponderance or by greater weight of all the evidence that such striking and injuring was caused wholly by the negligence of defendant.
4. NEGLIGENCE: Humanitarian Rule: Instruction. In an action for injuries to plaintiff, a boy under nine years of age, caused when struck by defendant's automobile, an instruction directing a verdict for defendant unless "such striking and injuring of plaintiff was caused wholly by the negligence of defendant as set out in another instruction," was erroneous because it precluded recovery under the humanitarian rule on finding that plaintiff's negligence, irrespective of degree, contributed with defendant's negligence to plaintiff's injury.
As a defense contributory negligence passes out of an issue submitted under the humanitarian doctrine.
Appeal from Dunklin Circuit Court. — Hon. James V. Billings, Judge.
REVERSED AND REMANDED.
John W. Noble and Alletha B. Noble for appellant.
(1) The court erred in modifying plaintiff's Instruction 1P by the insertion of the words as a fact in the 15th line of the instruction as it appears in the abstract and by inserting the statement having in fact either of said opportunities as before stated, as appears in the 26th and 27th lines of the instruction as it appears in the printed abstract, which complained of insertions we have italicized or emphasized in the instruction as it appears in the abstract. (a) To require any finding as a fact, or to require that defendant had in fact either of said opportunities (stopping or swerving to the left) as the modified instruction required, is stronger than the law justifies. The requirement should be "find" or "believe and find." The situation is similar, we think, to an instruction which tells the jury that if a charge of negligence remains in doubt after fairly considering the evidence, they should return a verdict for defendant. Such a direction in an instruction is error because the direction is stronger than the law justifies in civil cases, and we think the same is true of the requirement to find as a fact. Valence v. Rosegrant, 80 S.W.2d 708; Payne v. Reed, 332 Mo. 343, 59 S.W.2d 48; Werminghaus v. Eberle, 81 S.W.2d 607; Finn v. United Rys. Co., 267 S.W. 421. (2) The court erred in giving defendant's Instruction 1D (a) By the expression 1P given herein in the 10th line of said instruction as it appears in the printed abstract, the jury was again told everything had to be found as a fact and that defendant had to have as a fact either of said opportunities of stopping or swerving to the left. (b) Instruction 1D is further erroneous because of the use of the word must where it tells the jury that before plaintiff can recover he must show by the preponderance or greater weight of the evidence in the case, etc., "as set out in Instruction 1P given herein in this case." The use of the word must in an instruction is not to be commended and it ought to be held reversible error in this case, and this because of the instructions emphasizing the importance and absolute necessity of everything being found as a fact, except when the fact finding requirement would have been favorable to the plaintiff as appears in the last sentence of defendant's Instruction 4D. The use of the word must, we think, was wholly unjustifiable here. Privitt v. Jewett, 225 S.W. 129; Klaber v. Chicago, R.I. P. Railroad Co., 225 Mo. App. 940, 33 S.W.2d 154; Pabst v. Armbruster, 91 S.W.2d 658. (c) The use of the word wholly in defendant's Instruction 1D is undoubtedly reversible error. King v. Rieth, 341 Mo. 467; Newcomb v. Ry. Co., 169 Mo. 409, 69 S.W. 348; Brown v. Wheelock, 83 S.W.2d 912.
Ward Reeves for respondent.
(1) Respondent contends that the appellant did not make a case for the jury under the humanitarian doctrine. Respondent offered a demurrer at the close of the plaintiff's case and again at the close of the whole case, and duly saved his exceptions on refusal of the court to give them. Plaintiff's theory and evidence do show as a mater of law that this nine year old boy was facing and looking towards the approaching automobile while it traveled twenty-five to forty feet, and he could have instantly stepped back as did his father out of the path of the automobile, as one step would have been sufficient. The plaintiff therefore did not make a case under the humanitarian doctrine, and appellant's authorities cited have no application to the facts relied upon by him in this case. Worth v. Railroad Co., 334 Mo. 1025, 69 S.W.2d 672; Clark v. Railroad Co., 319 Mo. 865, 6 S.W.2d 954; Stanton v. Jones, 59 S.W.2d 654. (2) Under Points I and II, Paragraph 1 of appellant's brief it is contended that the amendment of the plaintiff's Instruction 1P so as to require the jury to find the matters hypothecated "as a fact" and the giving of defendant's Instruction 1D which required in effect the same finding as a predicate of recovery as plaintiff's instruction 1P as modified by the court constitute reversible error. The authorities cited by appellant do not support his contention, and the point raised has been definitely decided against their contention by this court en banc. Mo. Egg Poultry Co. v. Mo. Pac. Ry. Co., 257 S.W. 477. (3) Under Paragraph 2, Point II, error is claimed in defendant's Instruction 1D on account of the use of the word "must" instead of "should." The cases cited do not support appellants contention, but the last two cases cited on this point in appellant's brief, page 12, specifically hold that the use of the word "must" instead of "should," after hypothecating the requisite facts as the instruction does in the case at bar, is not reversible error. Pabst v. Armbruster, 91 S.W.2d 652. (4) The word "wholly" in the sense in which it was used when considered in connection with plaintiff's Instruction 1P, could mean no more than the words "directly and proximately." There was no evidence in the case from which the jury could have inferred that an act of God or some inanimate cause might have contributed or concurred to cause plaintiff's injury. The jury could not have been misled in view of Instruction 1P and the reference to it in the instruction complained of. If there was error it was harmless error. Alexander v. Railroad Co., 38 S.W.2d 550; McDonald v. Kansas City Gas Co., 332 Mo. 364; Aronovitz v. Arky, 219 S.W. 620.
Loren Radabaugh, a minor, by his guardian and curator, Jess Radabaugh, his father, seeks a judgment of $25,000 against J.S. Williford for personal injuries occasioned by Mr. Williford's automobile striking said minor. The appeal is prosecuted from a judgment, after verdict, for defendant.
The accident occurred on the afternoon of June 17, 1934, about the middle of the first block east of the square in Kennett, Missouri, on First Street, an east and west concrete street, forty-two feet in width at the scene of the accident. The day was fair; the street, dry. At the time of the accident a number of automobiles, having tops, were parked at an angle of approximately forty-five degrees, headed northwest, along the north curb; there was no vehicular traffic moving along the street other than defendant's automobile, and one or two automobiles were parked parallel with the curb along the south curb of said First street.
Testimony on behalf of plaintiff was to the effect that Mr. Radabaugh, and his son Loren, who was eight years and seven months old, were proceeding south across First Street over a vacant space between the automobiles parked along the north curb; that when the father and Loren, who was approximately three feet west of his father, reached a point of approximately two feet south of an imaginary east and west line projected by the rear of the automobiles parked along the north curb, defendant's automobile was at a distance of between twenty-five and forty feet east, approaching at a speed of about fifteen miles an hour; that Mr. Radabaugh looked east, saw defendant's automobile, jumped back, grabbed for but missed Loren; that Loren threw up his hands; that defendants automobile continued on its course without slackening its speed or swerving and struck Loren; and that it was swerved a little to the south before it came to a stop between eight and ten feet west of the point of impact. There was testimony that defendant was looking south across the street at the moment of impact.
On behalf of defendant the testimony was to the effect that defendant's automobile was proceeding west about two feet south of the automobiles parked along the north curb; that Loren, proceeding southeastwardly, ran into the traffic way from the side of the parked automobiles and about five or six feet west of defendant's automobile; that defendant turned his automobile a little to the left and applied the brakes; that the bumper of defendant's car did not strike Loren but Loren, not stopping, struck his head against the right front fender; that defendant did not see Loren until he came out into the street from the side of the parked automobiles; that defendant was looking straight ahead and that he stopped his car as soon as possible, within a distance of about fifteen feet, after he first saw Loren.
Plaintiff's case was submitted under the humanitarian doctrine on defendant's alleged negligent failure to stop, to reduce the speed of or swerve his automobile.
A reading of the authorities infra, as well as others, will demonstrate the nonapplicability of defendant's authorities [Worth v. St. Louis-S.F. Ry. Co., 334 Mo. 1025, 1028(1), 69 S.W.2d 672, 673(1), and cases there cited] to his contention that plaintiff failed to make a submissible case. The law does not exact of a child of less than nine years that exercise of care exacted of an adult [Holmes v. Missouri Pac. Ry. Co. (Banc), 190 Mo. 98, 105, 88 S.W. 623, 624, 207 Mo. 149, 164, 105 S.W. 624, 628; Cervillo v. Manhattan Oil Co., 226 Mo. App. 1090, 1113, 49 S.W.2d 183, 187(6). Consult 3 Berry on Automobiles, p. 520, sec. 3.342.] [2] This is not a case of a sudden and undiscoverable peril under the testimony favorable to plaintiff. Defendant stopped his automobile within a distance of fifteen feet. It traveled approximately forty feet without changing its course or stopping after Loren was within defendant's range of vision. Defendant could or should have observed Mr. Radabaugh's unsuccessful effort to protect Loren from defendant's oncoming automobile, and Loren's failure to attempt to remove himself from its path. The court correctly overruled defendant's general demurrer at the close of all the evidence. [Doherty v. St. Louis Butter Co., 339 Mo. 996, 1001(1), 98 S.W.2d 742, 743(1); Lindsey v. Vance, 337 Mo. 1111, 1117(4), 88 S.W.2d 150, 153(6); Steger v. Meehan (Mo.), 63 S.W.2d 109, 110(3); Eisenman v. Griffith, 181 Mo. App. 183, 187, 167 S.W. 1142, 1143(2); Miller v. Williams (Mo.), 76 S.W.2d 355(1). Consult Burke v. Pappas, 316 Mo. 1235, 1244, 293 S.W. 142, 146(5); Perkins v. Terminal Railroad Assn. (Banc), 340 Mo. 868, 102 S.W.2d 915, 918 (1-6); 3 Berry on Automobiles, pp. 513, 538, secs. 3.341, 3.347.]
Plaintiff makes numerous attacks on the instructions. Some involve like principles of law. He says the modifications (indicated by italics) by the court of his Instruction 1P placed too great a burden upon him. This instruction, after requiring a finding that plaintiff was a minor; that he instituted the suit by his guardian and curator; that he was struck by defendant's automobile; that defendant saw, or could have seen, plaintiff in a position of imminent peril, et cetera, continued, "and if you further find as a fact that defendant saw or by the exercise of the highest degree of care could have seen plaintiff's peril, if you find plaintiff was in peril, in time thereafter by the exercise of the highest degree of care and with the use of the means at hand and with reasonable safety to himself and to said automobile to have avoided striking plaintiff with said automobile, either by stopping said automobile or by reducing the speed thereof, or by swerving said automobile to the left; and further find that the defendant, having in fact either of said opportunities as before stated, negligently failed to so stop said automobile or reduce the speed thereof, or swerve the same to the left; and further find that as a direct result of said negligence, if any, said automobile struck plaintiff and injured him, then your verdict will be for the plaintiff and against the defendant, even though you should find from the evidence that plaintiff was negligent in some act or failure to act, which act or failure to act directly contributed to plaintiff's injury." Plaintiff relies upon the law reannounced in Aly v. Terminal Railroad Assn., 336 Mo. 340, 349(3), 78 S.W.2d 851, 854(6); and like cases (Timper v. Mo. Pac. Railroad Co. (Mo.), 98 S.W.2d 548, 549(2) citing cases). The Aly case dealt with an instruction on negligence and particularly that portion thereof reading: ". . . If, therefore, after fairly considering the evidence . . . the truth as to the charge of negligence against defendant remains in doubt in your minds, your verdict must be for the defendant." The charge in the Aly case was a violation of the Federal Boiler Inspection Act; but what is there said under paragraph "second" has become the ratio decidendi in later cases based on negligence; to-wit: ". . . we do not see how it can be otherwise interpreted except that it requires a plaintiff to prove the charge of negligence by such a preponderance of the evidence as to remove any doubt in the minds of the jurors . . . Jurors would no doubt understand by the latter part of the instruction that a plaintiff must prove a charge of negligence by such a preponderance of the evidence as to remove any doubt in their minds as to such charge. . . . Such an instruction casts upon the plaintiff a much greater burden than the law requires." Defendant's Instruction 1D in the instant case informed the jury "that the burden of proof in this case is upon the plaintiff and plaintiff must establish not only that he was struck and injured by defendant's car on the street in question and was damaged thereby, but must also show by the preponderance or greater weight of all the evidence in the case that such striking and injuring of the plaintiff was caused wholly by the negligence of the defendant as set out in Instruction 1P given herein in this case, and unless you do so find, then it is your duty to return a verdict in this case for the defendant."
In a law case the jury is the tribunal established by the law to arrive at the facts. Instructions perform the office of informing the triers of the facts what principles of law are applicable under the pleadings to the facts determined by them to exist. The law cast upon plaintiff the burden of affirmatively establishing the facts essential to a recovery under the humanitarian doctrine. The cases are numerous which refuse to sustain a recovery based upon speculation or conjecture by the jury as to the facts. Without the modifications, we think plaintiff's instruction well enough. It required the jury to "find and believe from the evidence" the facts hypothesized in the instruction, and we think it better practice to avoid the modifications under consideration as they have a tendency to lend themselves to a construction requiring a greater degree of proof than exacted by the law. However, it is evident that the modifications did not require plaintiff to establish the facts beyond a reasonable doubt as did the instructions discussed in the Aly and other like cases. In Missouri Egg Poultry Co. v. Missouri Pac. Railroad Co. (Mo. Banc), 257 S.W. 477, 478, 481, 482, an action under now Section 4766, Revised Statutes 1929 (Mo. Stat. Ann., p. 2164) for damages occasioned by fire communicated by a railroad locomotive engine, the court had under consideration an instruction advising the jury that ". . . before you can find for plaintiff in any sum, you must believe that the greater weight of the testimony shows that defendant's engine or engines did in fact set fire to plaintiff's property." The opinion sets out other instructions on behalf of defendant to like effect. After a discussion of the propriety of authorizing verdicts upon probabilities, the court held (l.c. 482) the instruction did not lay too great a stress upon the burden of proof resting upon the plaintiff. In that case the plaintiff had the burden of establishing the facts essential to a recovery. In the instant case no less a burden rested upon plaintiff and like rules of law governed the issue of the sufficiency of the proof. [Consult Fritz v. St. Louis, I.M. S. Ry. Co., 243 Mo. 62, 76(a), 148 S.W. 74, 78.] We think, reading instructions 1P and 1D together, the jury would not be misled but would understand a preponderance or greater weight of all the evidence would authorize a finding of the essential facts and the return of a verdict for plaintiff. Under the authority of the Missouri Egg Poultry Co. case, supra, and cases therein mentioned, reversible error was not committed. Lampe v. Franklin Am. Trs. Co., 339 Mo. 361, 384(8), 96 S.W.2d 710, 722(23, 24), cited by plaintiff, held the refusal of an instruction, offered by one not having the burden of proof, authorizing a verdict upon a determination that a certain fact was more probable than another not error. It states: ". . . a verdict must be based upon what the jury finds to be facts rather than what they find to be `more probable.'"
What we have said disposes of objections of a similar nature lodged against other instructions.
Plaintiff, among other things, complains of the word "wholly" in Instruction 1D. Defendant admits its use is subject to criticism; but contends reversible error is absent, citing McDonald v. Kansas City Gas Co., 332 Mo. 356, 363 (4-6), 59 S.W.2d 37, 40(6-9); Aronovitz v. Arky (Mo.), 219 S.W. 620, 624(11); Alexander v. Wabash Ry. Co. (Mo. App.), 38 S.W.2d 545, 550(15). The instruction directs a verdict for defendant unless "such striking and injuring of the plaintiff was caused wholly by the negligence of the defendant as set out in Instruction 1P given herein in this case." It differs in a number of respects from "sole cause" instructious condemned in cases cited by plaintiff: King v. Rieth, 341 Mo. 467, 108 S.W.2d 1, 5 (8, 9); Newcomb v. New York C. H.R. Ry. Co., 169 Mo. 409, 422(I), 69 S.W. 348, 351, among others. Use of the word "wholly" in predicating a defense in an instruction, depending upon the context, may or may not constitute error. Instruction 1D does not refer to the concluding clause of Instruction 1P. Its reference to Instruction 1P is limited to that portion of Instruction 1P hypothesizing that negligence of defendant authorizing a recovery by plaintiff; and said Instruction 1D is to the effect that plaintiff may not recover unless "such striking and injuring of the plaintiff was caused wholly by" defendant's failure to stop, reduce speed or swerve under the humanitarian doctrine. It thus precludes a recovery upon a finding that plaintiff's negligence, irrespective of degree, contributed with defendant's negligence to plaintiff's injuries. That contributory negligence does not bar a recovery is of the warp and woof of the humanitarian rule in this State. As a defense, contributory negligence passes out of an issue submitted under the humanitarian doctrine. [Borgstede v. Waldbauer (Banc), 337 Mo. 1205, 1216(6), 88 S.W.2d 373, 377(15); Schulz v. Smercina, 318 Mo. 486, 501, 1 S.W.2d 113, 120.] In Doherty v. St. Louis Butter Co., 339 Mo. 996, 1006, 98 S.W.2d 742, 746, we said, speaking to instructions submitting defenses in a humanitarian case: "Such instructions, however, must be specific and not leave room for the jury to consider contributory negligence as a defense." The conditional negative applied by Instruction 1D to defendant (unless "caused wholly by the negligence of the defendant") is distinguishable from conditional affirmatives applied to plaintiffs (if "caused wholly by the negligence of the plaintiff") in that the former lends itself to the construction, in the instant case, the striking and injuring were caused partly by the negligence of the defendant; and a defense under the humanitarian issue was not stated. The cases cited by defendant do not meet the situation.
There are other criticisms of defendant's instructions but we regard them, after careful consideration, insufficient to necessitate a remanding of the cause. For instance, the complaint against the use of the word "must" (see Instruction 1D) appears to be answered in King v. Rieth, 341 Mo. 467, 108 S.W.2d 1, 6 (11, 12), and Pabst v. Armbruster (Mo. App.), 91 S.W.2d 652, 658(5). Theoretically, verdicts are to be reached under governing principles of law and it is the duty of a jury to follow the law of the case. Further, a number, if not all, of the criticisms may be readily eliminated upon a retrial without materially affecting the legal rights of the litigants; and, with a reference to the propriety of keeping the instructions within the pleadings and the evidence [State ex rel. v. Ellison (Banc), 270 Mo. 645, 651(I), 195 S.W. 722, 723(3); Gandy v. St. Louis-S.F. Ry. Co., 329 Mo. 549, 467, 44 S.W.2d 634, 637(6)], we deem it unnecessary to prolong this opinion by a development of the criticisms in detail.
The judgment is reversed and the cause remanded. Cooley and Westhues, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.