June 7, 1943. Rehearing Denied, July 6, 1943.
1. NEGLIGENCE: Motor Vehicles: Contributory Negligence: Submissible Case. The evidence was in conflict as to how the collision occurred, and plaintiff made a submissible case for the jury to say whether defendant was negligent, and also to say whether plaintiff was free from contributory negligence.
2. APPEAL AND ERROR: Point Sufficiently Preserved in Brief. The assignments of error and points and authorities are sufficiently definite to preserve for review the issue of an erroneous instruction.
3. NEGLIGENCE: Motor Vehicles: Highest Degree of Care: Erroneous Instruction. The instruction on the issue of contributory negligence was erroneous because, while properly requiring the highest degree of care on the part of plaintiff in the operation of his automobile, the instruction misdefined the term "highest degree of care," giving the definition of "ordinary care."
Appeal from Jackson Circuit Court. — Hon. A.A. Ridge, Judge.
REVERSED AND REMANDED.
Fred Bellemere, Fred Bellemere, Jr., and Roy W. Rucker for appellant.
(1) The court should have sustained defendant's demurrers for the reason that it conclusively appeared from plaintiff's own testimony that he was guilty of contributory negligence, barring his right of recovery as a matter of law. State ex rel. v. Shain, 105 S.W.2d 915, 918; Dempsey v. Horton, 84 S.W.2d 621; Roberts v. Consolidated Pav. Materials Co., 70 S.W.2d 543; Woods v. Moore, 48 S.W.2d 202; Alexander v. Railways, 38 S.W.2d 1023. (2) Instruction 1 was a plain misdirection to the jury. Under the statutes and decisions of this court, plaintiff was required to exercise the highest care, while under Instruction 1 he was only required to exercise ordinary care. Sec. 8383, R.S. 1939; Borgstede v. Waldbauer, 88 S.W.2d 373; Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 59; Jackson v. Southwestern Bell Tel. Co., 219 S.W. 655.
Calvin Kimbrell for respondent.
(1) The court did not err in overruling the defendant's demurrer, offered at the close of the plaintiff's case, for the reason, aside from all other reasons, that the defendant waived his rights thereunder by, thereafter, offering evidence in support of his answer in this cause; and, by again offering his demurrer at the close of all the evidence. Cook v. Pulitzer Publishing Co., 241 Mo. 326, 145 S.W. 480; Gettys v. American Car Foundry Co., 322 Mo. 787, 16 S.W.2d 85; Baugher v. Gamble Construction Co., 324 Mo. 1223, 26 S.W.2d 946; Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Johnson v. Chicago E. I. Ry. Co., 324 Mo. 22, 64 S.W.2d 674; Kelso v. W.A. Ross Construction Co., 337 Mo. 202, 85 S.W.2d 767; Clay v. Owens, 338 Mo. 1061, 93 S.W.2d 914. (2) Neither appellant's second assignment of error, nor point one, under his Points and Authorities, presents any question for review by this court upon this appeal; but granting, for the sake of argument, though in no wise conceding, that they are specific enough to legally challenge the sufficiency of the plaintiff's testimony in this case, and to authorize and warrant this court in considering, upon this appeal, whether or not the defendant's demurrer, offered at the close of the entire case, should have been sustained; nevertheless, the court did not commit prejudicial and reversible error in overruling the defendant's demurrer, offered at the close of the entire case, because, under the testimony adduced by and on behalf of the plaintiff, as well as under the defendant's own judicial admissions; and, also, under the testimony adduced by and on behalf of the defendant, it became, and was, a question for the jury to determine whether or not the collision in question was solely, and directly and proximately, due to the defendant's negligent acts and omissions. Kleinschmidt v. Globe-Democrat Pub. Co., 165 S.W.2d 620; Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S.W. 968, 43 L.R.A. 505; Stauffer v. Met. Street Ry. Co., 243 Mo. 305, 147 S.W. 1032; Goucan v. Atlas-Portland Cement Co., 317 Mo. 919, 298 S.W. 789; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509; Clark v. Atchison Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Anderson v. Asphalt Distributing Co., 55 S.W.2d 688, 86 A.L.R. 1033; Parrent v. Mobile etc., R. Co., 334 Mo. 1202, 70 S.W.2d 1068; State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Courtney v. Ocean, etc., Guar. Corp., 346 Mo. 703, 142 S.W.2d 858, 130 A.L.R. 234; Trower v. M.-K.-T. Ry. Co., 347 Mo. 900, 149 S.W.2d 792. (3) That the defendant did not, in his fifth assignment of error, or under the fourth point of his Points and Authorities, dealing with plaintiff's Instruction 1, assign or particularize any specific error therein, nor did he anywhere show wherein he was prejudiced by said instruction as required by Rule 15 of the rules of this court. Metropolitan Properties Co. v. Rideout, 346 Mo. 787, 142 S.W.2d 1055; Kleinschmidt v. Globe-Democrat Pub. Co., 165 S.W.2d 621. (4) Said instruction does not direct a verdict. Cullen v. Johnson, 325 Mo. 253, 29 S.W.2d 39; McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37; Engelman v. Railway Express Co., 340 Mo. 360, 100 S.W.2d 540; Larey v. M.-K.-T.R. Co., 333 Mo. 949, 64 S.W.2d 681; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S.W. 654. (5) Said instruction requires a high degree of care on the part of a driver of a motorcar. Oesterreicher v. Grupp, 119 S.W.2d 303; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373. (6) Defendant's instructions C and D fully and completely submitted the issues of the plaintiff's contributory negligence, a purely defensive matter. Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89. Heigold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; Colburn v. Krenning, 220 S.W. 934; Thompson v. St. Louis S.F.R. Co., 270 Mo. 87, 192 S.W. 1034. (7) That when considered together, the aforesaid instructions fully and fairly submitted to the jury the issues of the plaintiff's contributory negligence; and, therefore, the defendant was not harmed or prejudiced in any respect. Cornovski v. St. Louis Transit Co., 207 Mo. 263, 106 S.W. 51; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; Heigold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; Colburn v. Krenning, 220 S.W. 934; Conroy v. St. Joseph, Light, etc., Co., 345 Mo. 592, 134 S.W.2d 93. (8) That if said Instruction 1 were erroneous the defendant was not prejudiced thereby. Cornovski v. St. Louis Transit Co., 207 Mo. 263, 106 S.W. 51; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; Heigold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; Colburn v. Krenning, 220 S.W. 934; Dorman v. East St. Louis Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Brandon v. Carter, 119 Mo. 572, 24 S.W. 1035; State ex rel. Hospes v. Branch, 151 Mo. 622, 52 S.W. 390; Shinn v. United Rys. Co., 248 Mo. 173, 154 S.W. 103; Lyons v. St. Joseph Belt Ry. Co., 232 Mo. App. 575, 84 S.W.2d 933; Burdoin v. Town of Trenton, 116 Mo. 358, 22 S.W. 728; McGrew v. Mo. Pac. Railroad Co., 109 Mo. 582, 19 S.W. 53; Hays v. Western Union Tel. Co., 150 S.W.2d 511.
Plaintiff obtained a judgment against the defendant in the sum of $13,075, as damages alleged to have been sustained by plaintiff as the result of a collision of plaintiff's and defendant's cars at the intersection of Brooklyn avenue and Thirty-eighth street in Kansas City, Missouri. From the judgment entered defendant appealed.
The conceded facts in the record are that plaintiff was driving a Ford car south on Brooklyn avenue and the defendant was driving a Pierce-Arrow west on Thirty-eighth street; that the collision occurred south and west of the center of the intersection at about 6:00 P.M. Plaintiff's evidence was that the defendant was driving his car at a speed in excess of thirty miles per hour and as he entered the intersection increased his speed; that his, plaintiff's, car was the first to enter the intersection and that defendant attempted to pass in front of him and veered to the south of the center of the intersection. Plaintiff testified that when he saw defendant's car going through the intersection he, plaintiff, turned his car abruptly to the right, or west, and the cars side-swiped each other; that defendant's car proceeded west on Thirty-eighth street about one hundred feet or so and then stopped; that his, plaintiff's, car turned over. The defendant's evidence was that plaintiff was driving his car at a high rate of speed, estimated by witnesses at thirty-five miles per hour or more; that his, the defendant's, car was traveling at about fifteen to twenty miles per hour; that he entered the intersection before plaintiff and plaintiff's car struck his car between the front and rear fenders, in other words about the middle. Note the evidence given by witness Leslie Powell:
"Q. How far into the intersection was the Maris car before the Jungeblut car reached the intersection? A. He was at least halfway, if not a little farther, in the intersection.
"Q. You mean he was halfway in before ____ A. (interrupting) Across the intersection, across Brooklyn."
Appellant urges that the trial court should have sustained a demurrer to the evidence because it showed plaintiff to have been guilty of contributory negligence as a matter of law. To pass upon this question we must give plaintiff every favorable inference justified by the evidence. If that is done and if the evidence of the defendant is disregarded, the plaintiff made a submissible case for the jury to say whether defendant was negligent, and also to say whether plaintiff was free from contributory negligence. We deem the above statement sufficient to pass upon the vital question in the case, that is, the question of the correctness of instruction number one. Appellant urges that this instruction is erroneous because it told the jury plaintiff was required to exercise only ordinary care, whereas it should have advised the jury that plaintiff was required to exercise the highest degree of care. The instruction reads as follows:
"`Gentlemen of the Jury: You are instructed that at the time to which reference is made in the testimony, it was the duty of every person, operating a motor vehicle upon the public streets of this city, to drive the same in a careful and prudent manner, and to exercise the highest degree of care, and to drive the same at a rate of speed so as not to endanger the property of another or the life and limb of any person.
"`And, in this same connection, you are also further instructed that by the term `the highest degree of care,' as used in these instructions, is meant that degree of care, human skill and foresight, which a reasonably careful and prudent person would ordinarily and customarily exercise under the same, or similar, circumstances; and, that by the term `negligence' and `negligently,' as used in these instructions, is meant the failure or omission to exercise the aforesaid degree of care.'"
Respondent says appellant failed in his brief to preserve the point for review. Appellant's brief under assignments of error states:
"The court erred in giving Instruction No. 1 because it did not properly declare the law."
Under points and authorities we note the following:
"Instruction No. 1 was a plain misdirection to the jury. Under the statutes and decisions of this Court, plaintiff  was required to exercise the highest care, while under Instruction 1 he was only required to exercise ordinary care."
Section 8383, Mo. Rev. St. Ann. (1939) and three Missouri cases are cited as authority. We think it evident that the alleged error is pointed out in plain and unmistakable language, and hence sufficient under our rules.
The instruction is correct insofar as it states that every person operating a motor vehicle is required to exercise the highest degree of care. However, the definition of the term "highest degree of care" is clearly erroneous. It is the definition of "ordinary care". Jackson v. Southwestern Bell Telephone Co., 281 Mo. 358, 219 S.W. 655, l.c. 658 (2-4). Highest degree of care is that degree of care that a very careful and prudent person would ordinarily exercise under the same or similar circumstances. 45 C.J. 705, sec. 84; Perkins v. Kansas City Southern R. Co., 329 Mo. 1190, 49 S.W.2d 103 (4-8); State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667, l.c. 669 (9-11); Threadgill v. United Rys. Co. of St. Louis, 279 Mo. 466, 214 S.W. 161, l.c. 164 (4); Gude v. Weick Bros. Undertaking Co., 322 Mo. 778, 16 S.W.2d 59, l.c. 62 (3); Jackson v. Southwestern Bell Telephone Co., 281 Mo. 358, 219 S.W. 655, l.c. 657 (1). A glance at the authorities cited will disclose that the instruction casts upon plaintiff a burden less than the law requires. The plea of contributory negligence was in the case and the evidence justified a finding that plaintiff drove his car at an excessive rate of speed and also that he failed to keep a proper lookout. The instruction was therefore a misdirection upon a vital issue in the case. Respondent cites the cases of Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373, and Oesterreicher v. Grupp, 119 S.W.2d 307, as holding an instruction employing the words "very careful and prudent person" to be erroneous. The cases do not so hold. In both cases instructions were condemned which required a higher degree of skill than ordinary skill. For example, the instruction in the Borgstede case read:
"By the use of the term `highest degree of care' in these instructions, the court means such care, skill and foresight as a very competent and prudent person would use and exercise under like or similar circumstances."
We think it was plainly pointed out that the instruction was erroneous because of the words "skill" and "competent." Under that instruction a driver was required to possess the skill of a very competent person. The statute, sec. 8383, supra, does not make that requirement. In the Oesterreicher case the parties conceded the instruction to be erroneous because the word "and" was used in lieu of the word "to", so that the instruction required of a driver the duty to absolutely avoid a collision. The St. Louis Court of Appeals in Morhaus v. Hebeler (Mo. App.), 104 S.W.2d 737, l.c. 739, 740 (3) (4) (5), reviewed this question and pointed out what was condemned in the Borgstede case.
For the error in instruction number one the judgment is reversed and the cause remanded. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.