Opinion
No. 43088.
May 11, 1953.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS, COUNTY, AMANDUS BRACKMAN, J.
Nathan B. Kaufman and William R. Kirby, St. Louis, for appellant.
Moser, Marsalek, Carpenter, Cleary Carter and Lee M. Carter, St. Louis, for respondent.
Plaintiff-appellant (herein called plaintiff) sued defendant-respondent (herein called defendant) for $15,000 damages for personal injuries allegedly sustained as a result of a collision between the parties' automobiles. Verdict and judgment were for defendant and plaintiff appealed.
The sole issue is the propriety of Instruction No. 3. Plaintiff contends that the instruction failed to require the jury to make an essential finding and was not supported by the evidence.
The collision occurred on the "Express Highway" in the City of St. Louis, about 150-200 west of the Boyle Avenue underpass. The approaches to the under pass are lined with concrete walls. West of the underpass the highway, as to eastbound vehicles, curves to the right. There are four wide lanes, two for travel in each direction.
About 9:15 a. m., May 10, 1951, plaintiff and defendant were driving their respective cars east. There was "some traffic" on the highway but "traffic had pretty well thinned out by that time." Plaintiff was driving in the right or outside lane. Defendant was moving (from the left or inside lane) into the right lane. The points of contract were the left front fender of plaintiff's car and the right rear door of defendant's (Apparently, defendant's car was a coupe.) Plaintiff's car continued to move forward for about 100' and struck the concrete wall, on the right side of the approach, 20'-40' west of the underpass.
The only witnesses as to the collision were the parties themselves. Plaintiff's version was that defendant passed him on the left and, in re-entering the right lane, "sideswiped" plaintiff's car. Defendant's version was that he had been driving in the right lane. He "was looking ahead at all times." He was driving between 40 and 45 m. p. h. He had entered the left lane to pass, and did pass on the left, another car. That car was not plaintiff's; it was of a different color; he did not pass plaintiff's car. "Since Kings highway," he had passed two cars, both within the same block. After passing them, and while still in the left lane, he looked into his rear-vision mirror and could see both of them behind him, "200-300' or a halfblock back there." Neither was "near" defendant; and neither was plaintiff's car. Defendant "could see a car back there approximately a half-block or a block" in the right lane. Plaintiff's car was "not in my rear-vision mirror." When defendant began his re-entry into the right lane, he was moving between 40 and 50 m. p. h. He turned "very gradually." When his car was "a foot or two" over the dividing line, "over into his [plaintiff's] lane, I noticed in the right-hand vision [mirror] over my door the black fender and headlight [of plaintiff's car] appear." That was the first time he saw plaintiff's car. It was "a matter of 2 or 3 seconds" after he looked in his rear-vision mirror that he first saw plaintiff's car; the collision occurred "in the lapse of a second or less" after that. Defendant did not know where plaintiff's car was when he gradually re-entered the right lane, but it "wasn't alongside of me or right with me." He had "no notice of the fact that plaintiff's car was approaching" and he "heard no horn."
In Willhite v. City of St. Louis, 359 Mo. 933, 224 S.W.2d 956, 957[1-3], we held erroneous an instruction `because we cannot hold that it is always negligence as a matter of law, under all circumstances, to pass another motor vehicle on the right; although usually it is." See 60 C.J.S., Motor Vehicles, § 326, page 761. See also 5 Am.Jur., Automobiles, Sec. 284, p. 660; Annos.: 24 A.L.R. 507, 516; 47 A.L.R. 703, 717; 62 A.L.R. 970, 984; 104 A.L.R. 485, 541. In the instant case, the trial judge refused defendant's proffered instruction (hypothesizing plaintiff's overtaking and attempting to pass on the right as contributory negligence as a matter of law) and, in Instruction No. 3, required the jury to find plaintiff contributorily negligent in failing to keep a lookout and in overtaking on the right.
Instruction No. 3 was: "The court instructs the jury that if you find and believe from the evidence that on the occasion in question both plaintiff and defendant were operating their automobiles eastwardly on the Express Highway and that defendant passed other traffic on the left and then started to turn his automobile gradually toward and into the right-hand lane, and if you find that plaintiff at that time was approaching from the rear and failed to look out ahead for the movement and position of defendant's automobile on the highway and over took said automobile on the right and in so doing scraped the left front of his car against the right side of defendant's car, if you so find, and if you further find that in so operating his automobile plaintiff was negligent and that such negligence, if any, directly caused or directly contributed to cause whatever injuries or damage plaintiff sustained, then you are instructed that plaintiff is not entitled to recover in this case, whether or not you find that defendant was negligent in the operation of his automobile on said occasion." Plaintiff contends that Instruction No. 3 is erroneous; that "the jury should have been required to find that at the time defendant started turning to his right plaintiff saw or could have seen defendant's automobile turning to the right and in such close and dangerous proximity to him in time thereafter for plaintiff to have taken an effective precautionary measure to have prevented the collision. This the instruction failed to do."
It is true, as plaintiff contends, that Instruction No. 3 does not hypothesize that plaintiff should have seen defendant's automobile begin to move into the right lane at a time when plaintiff, in the exercise of the highest degree of care, could have avoided the collision. But we do not believe that, construed in the light of the instant circumstances, the instruction was reversibly erroneous because of such omission. The parties's versions were squarely conflicting and utterly irreconcilable. Plaintiff's theory, submitted in Instruction No. 1, was that defendant passed him on the left and turned in front of and against plaintiff's car. Under defendant's version, the jury reasonably could have found that plaintiff's car was approaching from the rear when defendant started his gradual turn into the right lane. Instruction No. 3 required a finding that plaintiff's failure to keep a lookout was negligence which directly contributed to cause plaintiff's injuries. The jury could not reasonably have found that plaintiff's failure to keep a lookout was a proximate cause of the collision without having found that plaintiff, by a proper lookout, could have seen defendant's car in time to have acted to avoid the collision. In other words, under the facts of this case, we believe that findings that plaintiff was approaching from the rear and failed to keep a "lookout ahead for the movement and position of defendant's automobile on the highway," which was a proximate cause of plaintiff's injury, necessarily included a finding that the injury could have been avoided if plaintiff had not been negligent in that respect. In certain primary negligence cases, such as this, it "should be sufficient if a jury is authorized to find that a defendant was negligent specifically in failing to keep a proper lookout * * * and that such negligence directly caused plaintiff's injuries." Fortner v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 10, 14-15 [4, 5].
Plaintiff says that Instruction No. 3 is not supported by the evidence in two particulars, viz.: That plaintiff "failed to look out ahead for the movement and position of defendant's automobile on the highway," and that, after defendant began his re-entry into the right lane, plaintiff was approaching from the rear and overtook defendant's automobile. We have hereinbefore summarized defendant's testimony from which the jury reasonably could have inferred that, when defendant began his gradual re-entry into the right lane, plaintiff's automobile was approaching from the rear and that plaintiff continued his approach and overtook defendant on the right after having failed to observe defendant's gradual turn into that lane. Plaintiff's own testimony was that, as he approached the underpass, he "did not notice any cars in front of him." and he did not see defendant's car until he "was right along side of its." The jury could reasonably find both that plaintiff failed to keep a lookout ahead for the movement and position of defendant's automobile and that plaintiff approached from the rear and overtook defendant after defendant started his gradual turn into the right lane.
The judgment is affirmed.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.