Opinion
No. 6985.
May 11, 1951.
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY, WARREN L. WHITE, J.
Smith Williams, Springfield, for appellant.
Joe C. Crain, Ozark, Edward V. Sweeney, Monett, for respondent.
This is an action for damages growing out of an automobile collision. The suit was in two counts: the first count was for personal injuries and the second count for property damages. The cause was tried before a jury in Greene County, Missouri, resulting in a verdict on the first count for personal injuries in the sum of $5,000.00 and on the second count for property damage in the sum of $147.00. Defendant's motion for new trial was overruled as to the first count of the petition and sustained as to the second count; the court ordering a new trial on the second count as to property damages only. Defendant appealed.
The cause was submitted to the jury on two grounds of primary negligence alleged in the petition. First, that defendant failed to use the highest degree of care by suddenly stopping her automobile on a public highway, directly in the lane of traffic, without giving a proper warning or signal to stop; secondly, by stopping her automobile on a public highway without placing it as near the right hand side of the highway as practicable.
The answer was a general denial of negligence; a plea of contributory negligence and a counterclaim based upon primary negligence.
Defendant makes four assignments of alleged error on the part of the trial court. Assignment No. I is that the trial court erred in giving inconsistent instructions; that said instructions erroneously defined and imposed the burden of "ordinary care" only in the operation of plaintiff's automobile.
Assignment No. II complains of the giving of instructions numbered one, two and three because said instructions were misleading; that they unduly and prejudicially emphasized the degree of care required of defendant; that said instructions unduly and prejudicially minimized the degree of care required of plaintiff.
Assignment No. III is that the trial court erred in failing to direct a verdict at the conclusion of plaintiff's case and at the close of all the evidence.
Assignment No. IV is that the verdict is not supported by the evidence.
The evidence in the case shows that on March 17, 1949, plaintiff was driving his 1936 Plymouth automobile in a southerly direction on Missouri State Highway No. 122, following a 1949 Plymouth automobile driven by defendant; that for five or six miles these automobiles had been driven approximately 100 to 125 feet apart at a speed of about 35 or 40 miles per hour. The highway was an asphalt surfaced two lane road, approximately 21 feet in width, and the west shoulder of the road, at the point of collision, was three to four feet in width. There was a ditch immediately west of the shoulder, some 12 feet deep at place of collision. The collision occurred about 4:30 o'clock P.M., at a point approximately one-fourth mile south of Greene County Road "M" in Greene County. The pavement, at the time, was wet and it was raining lightly. Defendant stopped her car to pick up a school girl. The testimony of plaintiff and defendant, as to what took place at the time of the stopping, is conflicting.
Defendant testified it was raining and she stopped to pick up a school girl; that she rolled down the window of her car and held out her arm while stopping; that she first took her foot off the accelerator and, after a short distance, put her foot on the brake; that she started going off the pavement onto the shoulder as far as she could go with safety; that at the time of the collision her car was half on the pavement and half on the shoulder; that both her feet were on the clutch and brake, which she pressed clear to the floor and did not remove until she was hit. She stated the average speed she was traveling from Springfield was 40 to 45 miles per hour. In her deposition she testified that she took her foot from the accelerator and traveled about 25 feet and that she applied her brakes and stopped within 10 feet.
Plaintiff's testimony is that defendant's car was stopped two or three feet from the center of the road and right where she was driving. He stated he was traveling about 100 feet behind defendant's car, at all times in plain view thereof, and at a speed of about 40 miles per hour; that there was a light rain at the time; that they were going down a slope and the collision took place practically at the bottom of it; that when defendant stopped her car, he attempted to stop but he thought his car was going to get away from him; that he let up on his brakes and made an attempt to go around defendant's car but the little girl started across the road and, in order to prevent hitting her, he pulled back into defendant's car. Plaintiff testified that defendant gave no signal of her intentions to stop, either by putting out her hand or by lights on her car; that there was mud on the back of the car so the light signal could not be seen. He stated that, before he realized she was stopping, he was within 50 or 60 feet of her; that he put his brakes on when he realized the danger. Plaintiff's testimony was corroborated by a patrolman who stated that from the mud left on the road and the marks where defendant's car left the road, she was in the traveled part of the highway as testified to by plaintiff. There was no dispute as to the damages.
In submitting plaintiff's case to the jury the court gave instructions numbered one, two and three. In instruction numbered one, he defined the term "highest degree of care" and also defined the term used in the instruction, "due care". In instruction numbered two the court placed the burden on the defendant to use the highest degree of care and then said that if the jury found under the facts therein set out that defendant did not use the highest degree of care she was negligent. In the two grounds of negligence submitted in instructions numbered two and three, the court required the same degree of care on the part of defendant, that is the "highest degree of care" and, then at the bottom of each of the instructions, he said that the verdict should be for the plaintiff provided the plaintiff used "due care".
In this opinion we will refer to the respondent as plaintiff and to the appellant as defendant, being the same positions they occupied in the court below.
Under assignment of error No. I, defendant contends first, that the instructions given in behalf of plaintiff are inconsistent with instructions given for defendant in submitting the issue of contributory negligence and the issues under defendant's counterclaim. To properly determine this issue it will be necessary for us to set out plaintiff's instruction numbered one, which is as follows:
"The Court instructs the jury that by the term, `highest degree of care,' is meant that degree of care that a very prudent and very careful person would exercise under the same or similar circumstances.
"That by the term, `negligence', as used in these instructions is meant the failure to use the highest degree of care.
"That by the term `due care', as used in these instructions is meant the highest degree of care."
In Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 245, the court states the law thus:
"Plaintiff's instruction No. 3 told the jury that by the term highest degree of care, as used in these instructions, `is meant that degree of care and caution that a very careful and prudent person would exercise under the same or similar circumstances,' but there was no definition of the terms reasonable care, proper care, due care, in plaintiff's instructions 1 and 2. In defendant Don Conger's instruction D, on the alleged contributory negligence of plaintiff, the jury was told that `as to the claim of plaintiff Hamre against Don Conger that the law required plaintiff Hamre to exercise the highest degree of care * * *' (italics ours). In Don's instruction D submitting alleged contributory negligence of plaintiff and in defendants' instruction E, submitting their respective counterclaims under the humanitarian rule, the highest degree of care on the part of plaintiff was required.
"* * * The term due care means ordinary care. [Wilson v. Chattin] Wilson case ([335 Mo. 375], 72 S.W.2d loc. cit. [1001], 1002). Therefore, it appears that the degree of care that plaintiff prescribed for himself in his instructions 1 and 2 was ordinary care, while the highest degree of care by these instructions was required of defendant Don Conger. It is true that in Don's instruction D (contributory negligence) and in defendants' instruction E on the counterclaims the jury was told that plaintiff was required to use the highest degree of care, but such was contrary to what plaintiff's instructions 1 and 2 required of him."
Section 8383, R.S.Mo. 1939, now Section 304.010, R.S.Mo. 1949, requires "Every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, * * *."
Plaintiff's instructions numbered two and three did not follow the law as stated in this section of the statute in that in each of these instructions they required, on the part of the plaintiff, only "due care".
It is true that defendant's instruction "C" submitting contributory negligence and instruction "D" submitting defendant's counterclaim required the use of the highest degree of care on the part of plaintiff, but such was contrary to what plaintiff's instructions two and three required of him unless this error was cured by plaintiff's instruction numbered one, which defines "due care" as used in the instruction to mean the "highest degree of care". Without this definition as set out in plaintiff's instruction numbered one, our courts have held that "due care" means "ordinary care".
In Burlingame v. Landis, Mo.App., 234 S.W.2d 808, 812, the Kansas City Court of Appeals, after quoting the statute that drivers of motor vehicles must exercise the highest degree of care, stated the law thus: "* * * The courts have uniformly held that this section requires the operator of a motor vehicle to use the `highest degree of care' and have defined that phrase to mean such care as `a very careful and prudent person would ordinarily exercise under the same or similar circumstances.' Jungeblut v. Maris, 351 Mo. 301, 172 S.W.2d 861, 863; Woods v. Chinn, Mo.App., 224 S.W.2d 583, 587. Both statutory phrases have a technical meaning and should be properly defined. State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667, 670. The words defining the degree of care required of a motor vehicle operator have been carefully chosen by the courts to distinguish it from ordinary care. Thus an instruction which uses the statutory phrase, `in a careful and prudent manner,' must define that phrase to mean the same care as `a very careful and prudent person would ordinarily use under the same or similar circumstances.' If so defined, it would not be inconsistent with the phrase, `highest degree of care.' King v. Friederich, Mo.App., 43 S.W.2d 843, 844."
In the case at bar the court in instruction numbered one, tells the jury,
"That by the term, `negligence', as used in these instructions is meant the failure to use the highest degree of care.
"That by the term `due care', as used in these instructions is meant the highest degree of care."
Thus, the jury is instructed in the case at bar that due care as used in plaintiff's instructions numbered two and three, means the highest degree of care.
We hold that since the term "due care" has a technical meaning and the court has defined this meaning to be the highest degree of care, such instructions are not inconsistent with the instructions given for defendant on the theory of contributory negligence and on defendant's counterclaim.
If due care had been used without the proper definition, that the words mean the same as the highest degree of care, the instructions would have been clearly erroneous.
We have examined the cases cited by defendant to sustain alleged error No. I. In each of these cases the terms used were not defined as the highest degree of care. In Hamre v. Conger, supra, 209 S.W.2d at page 246, all the cases cited under this point, except Burlingame v. Landis, supra, are discussed. They properly declare the law but differ on the facts. We think when instruction numbered one is read with instructions numbered two and three, the highest degree of care is required in all of the instructions and, therefore, we cannot agree with defendant under assignment No. I.
Under assignment No. II, defendant complains that instructions numbered one, two and three, when read in connection with the other instructions, are misleading, and that the jury was misled.
Under this allegation of error defendant says that the degree of care required of defendant is unduly and prejudicially emphasized and that the care required of plaintiff is minimized.
Under this contention defendant cites Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393. The instruction given in this case is entirely different from the one at bar. It mingled matters of primary and humanitarian negligence and did not cover the whole situation as to either. The instruction was clearly erroneous and the court held that it only tended to confuse the jury as to the issues they were to try. Certainly, an instruction on the plaintiff's negligence has no place in a case where the cause is submitted wholly on the humanitarian doctrine.
Likewise, an examination of the other authorities cited by defendant, under this assignment of error, are not in point. In the case at bar the court used the term "due care" but he defined it as meaning the "highest degree of care". Therefore, the jury was not mislead by the use of the term and we think there is no reversible error so we cannot agree with defendant's contention under this heading.
Under assignment No. III defendant contends that her motion for directed verdict should have been sustained for the reason that plaintiff was guilty of contributory negligence as a matter of law.
To support this contention defendant cites Frandeka v. St. Louis Public Service Co., Mo.Sup., 234 S.W.2d 540. The question in this case was whether plaintiff was guilty of contributory negligence as a matter of law. The facts clearly show that had the driver of the fire chief's automobile exercised ordinary care to keep a lookout, he could have seen a bus in the center of Market Street in time to have avoided injury but that he did not look and did not see the bus until he was within 20 feet of the intersection and, therefore, because of his failure to so look, was guilty of contributory negligence.
In the case at bar the testimony shows that plaintiff was traveling behind defendant's automobile, at a speed of about 35 or 40 miles an hour and at a distance of about 100 feet. The road was wet and there was a light rain; that defendant, according to her testimony, observed a child on the opposite side of the road and desiring to pick her up, took her foot off the accelerator and then in about 25 feet put on her brakes and suddenly stopped her car within 10 feet. Now under plaintiff's testimony, defendant gave no sign or signal that she intended to stop and he did not realize what she was doing until he was within 50 or 60 feet from her car. The court will take judicial notice that a car traveling 35 or 40 miles an hour will travel some distance before the brakes will take effect after plaintiff discovered what defendant was going to do and, again, since the roads were wet and since, according to plaintiff's testimony, he could not pass because the child was in the road, we think clearly the question of whether or not plaintiff could have stopped his car by the use of the highest degree of care, is one for the jury. The question of contributory negligence was submitted properly by instruction and the jury found for plaintiff. We cannot agree with defendant's contention that under the facts in this case plaintiff was guilty of contributory negligence as a matter of law. Each case must be decided upon its own facts and we think the facts differ from those in the cases cited to support defendant's contention.
We have read the other cases so cited. They properly declare the law which is that each case must be decided upon its own facts and, only where reasonable minds cannot differ, would this court be justified in determining that plaintiff was guilty of contributory negligence as a matter of law.
Under assignment No. IV, defendant contends that the verdict in favor of plaintiff is contrary to the greater weight of the credible evidence; that plaintiff's testimony was inherently improper and unbelievable.
Under this assignment of error defendant cites authority. We think, under the facts in the case at bar, it is unnecessary for us to go into these authorities. They are decided under facts entirely different from those in the case at bar and do not warrant us in finding for defendant under this allegation of error.
Judgment affirmed.
VANDEVENTER, P.J., dissents.
BLAIR, J., concurs.
I am unable to concur in the majority opinion in this case. I think the giving of plaintiff's instructions No. 2 and No. 3 was error. Plaintiff's instruction No. 2, which purports to cover the case as far as defendant's negligence in failing to stop as near the right hand edge of the highway is concerned, twice specifically told the jury that she was required to exercise the highest degree of care but told them they could find for plaintiff if they found he was in the "exercise of due care for his own safety."
Instruction No. 3 purported to cover the case, as far as defendant's negligence in suddenly stopping her automobile on the highway without giving a reasonable warning signal was concerned, and it told the jury defendant was required to exercise the highest degree of care but they might find for plaintiff if they found that he was "exercising due care for his own safety." It is true that in instruction No. 1, which defined "highest degree of care", "negligence" and "due care" it was stated in paragraph three that by the term "due care" was meant the "highest degree of care" and then in paragraph one of the same instruction, "highest degree of care" was defined. Neither of these instructions raised a warning flag by referring to other definitive instructions.
Instructions are given to clarify the issues for a jury composed of laymen and should be devoid of any ambiguous directions that might lead to confusion. Instructions are not directed to lawyers or judges who may leisurely and understandingly examine them with meticulous care and close analysis with a legally trained mind, aided by a retentive memory. They are directed to jurors whose ordinary avocations are foreign to the court room and trials and they should be phrased in plain language that would not be confusing or from which they would not be likely to draw an erroneous inference.
Certainly these two instructions would be error if instruction No. 1 had not attempted to define "due care" Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242. To read them standing alone would leave in the mind of any reasonable person the idea that the same degree of care was not, in law, required of the plaintiff as of the defendant.
To disabuse their minds of this inference they must go back and read the definition of "due care" and then go further back and read the definition of "the highest degree of care." Furthermore, while these two instructions (2 and 3) require that defendant should use the highest degree of care generally, it restricts the plaintiff's use of "due care" to "his own safety". It makes no requirement that he must use the highest degree of care as to all persons on the highway, as the jury was instructed was the duty of defendant, but merely requires that plaintiff look out for himself. There is no instruction that he should even use due care for others upon the highway.
The statute does not authorize the degree of care be restricted to the safety of the driver but extends it to "another" or "any person". 304.010 R.S.Mo. 1949.
Due care is equivalent to and means ordinary care. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742. Kirk v. Kansas City, Mo.App., 129 S.W.2d 1058. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242. "Due care" and "highest degree of care" are not synonymous.
With this definition by the courts, which is the law of this state, can a trial court without creating confusion use the words "due care" in the main instructions when referring to plaintiff and then in another say it does not mean what the courts of this state have said it does but that in this particular case, it means the "highest degree of care"? Could a court throughout its instructions erroneously use the word "willful" and cure its error in a definitive instruction by saying willful means "negligent", or that "in a careful manner" as used, really means "in a reckless manner", without confusing the jury? I do not think so.
A jury should not be required in a case of this character to make a minute search of all the instructions to find the definitions and then go from the first definition to the second to learn what was meant in this case by the words "due care". It would have been so much easier in instructions 2 and 3 to have said that the plaintiff was required to use the highest degree of care, the same as defendant. Then a definition of "due care" and following from there to another definition would not have been necessary.
The case of Burlingame v. Landis, Mo.App., 234 S.W.2d 808, 812, is cited as authority sustaining instructions 2 and 3, but the instruction given in that case was not the same as the instruction here. In that case it referred to the plaintiff alone and used the words "careful and prudent manner" and "a reasonable and prudent person in plaintiff's situation exercising the highest degree of care * * *." There was not a proper definition of "careful and prudent manner". This was held to be error but the case was transferred to the Supreme Court as being in conflict with Windsor v. McKee, Mo.App., 22 S.W.2d 65. It is now pending before the Supreme Court.
Neither do the cases of Hamre v. Conger, supra, King v. Friederich, Mo.App., 43 S.W.2d 840, nor King v. Friederich, Mo. App., 43 S.W.2d 843 sustain an instruction in the phraseology of those before us.
In this case, thrice in what might be termed the two main instructions, the jury was told that the defendant must have exercised the highest degree of care but that the plaintiff need only exercise "due care for his own safety." I have been able to find no case approving an instruction of this character and I have been cited none.
I do not believe this court should place the seal of its approval upon an instruction subject to these criticisms and I respectfully dissent.