Opinion
No. 21340.
June 3, 1950.
APPEAL FROM THE CLAY COUNTY CIRCUIT COURT, CLAY COUNTY, JAMES S. ROONEY, J.
Lyman Field, Clay C. Rogers, Reed O. Gentry, all of Kansas City, Judson L. Palmer, North Kansas City, for appellant.
Robert E. Coleberd, Francis G. Hale, Liberty, Arthur R. Kincaid, Lawson, Hale Coleberd, Liberty, of counsel, for respondent.
Plaintiff in this action recovered a verdict and judgment for $5000 for personal injuries alleged to have been received in a collision between plaintiff's truck and defendant's truck. The trial court sustained defendant's motion for a new trial, without stating the grounds therefor. Plaintiff has appealed. Under Rule 1.10, the defendant has assumed the burden of substantiating the granting of his motion for a new trial.
According to the plaintiff's second amended petition he was driving his Dodge Pick-Up Truck westerly on U.S. Highway 92 on September 14, 1947, near Kearney, Missouri; that defendant's 1947 Chevrolet Two-Ton Truck then and there being operated in the same direction on said highway by defendant's agent in the course of his employment, was negligently permitted to run into and collide with the rear of plaintiff's truck with such force and violence as to and did cause the serious and permanent injuries to the plaintiff in the respects alleged. The negligence pleaded was that the defendant's truck was being operated at a careless, negligent, excessive and dangerous rate of speed; that the driver failed to maintain a careful and vigilant lookout for other vehicles; that he negligently failed to swerve his vehicle to one side so as to avoid the collision, and "negligently and carelessly failed to stop his vehicle or to slacken the speed thereof so as to avoid the collision".
The answer was a general denial, coupled with a plea of contributory negligence in the careless operation of plaintiff's truck.
At the close of the evidence, plaintiff amended the part of his petition above quoted to read: "That defendant saw, or in the exercise of the highest degree of care could have seen, plaintiff's truck in an immediate and imminent place and position of peril and danger of being struck by the lime truck, and thereafter defendant, in the exercise of the highest degree of care, negligently and carelessly failed to stop his vehicle, or to slacken the speed thereof so as to avoid the collision".
To substantiate the correctness of the ruling of the court in granting the defendant a new trial, defendant confines his argument to two points: (1) that the court erred in allowing the plaintiff's Instruction 1; (2) that there was no evidence of future suffering or future medical expense submitted in plaintiff's Instruction 3.
Plaintiff's evidence tended to prove that he was driving westerly on Highway 92, near Kearney, Missouri, on Sunday, September 14, 1947, in his Dodge Pick-Up Truck. His wife was sitting beside him in the driver's seat and holding a small child; sitting in the bed of the truck were other children of theirs, and a neighbor girl. At a point about three miles west of Kearney, plaintiff, approaching a hill on the highway about 900 feet long, saw a boy on a bicycle emerging from a farm yard on the north side of the highway, and saw him ride onto the highway and turn westward up the hill. When plaintiff got within 150 feet of the boy on the bicycle, the plaintiff gradually turned toward the left side of the highway, to pass him, and as he did so, he saw through his rear vision mirror that the highway was clear of traffic for about 400 feet behind him. The plaintiff was traveling at that time about 25 miles an hour. After having thus traveled about 75 feet he overtook the boy and turned back toward the north side of the highway and had traveled about 50 feet further until the front end of his truck was on the north side of the highway, at which time and when he had reached about half way up the hill, the defendant's truck, loaded with lime, operated by defendant's agent, ran into the left rear corner of plaintiff's truck, knocking off the tail light and bending down the rear left fender to the wheel, and continued on for 165 feet further, at which place it came to a stop. Plaintiff's truck was stopped within 45 feet of the point of collision. The sudden impact forced plaintiff's head back against the truck above the seat. Plaintiff and his wife and defendant's driver and also another one of defendant's employees in the lime truck, alighted and discussed the collision. It was found that the plaintiff's wife and the children in his truck were not injured, and plaintiff expressed the belief that he himself was not hurt. Two days later plaintiff noticed a distinct pain in his neck and back and thereafter his condition grew worse and resulted in his present claim for personal injuries hereinafter more particularly discussed.
An employee of the defendant, also in defendant's truck, testified that it was being driven about 35 miles an hour after having descended a long hill to the east and over a strip of low land, and starting to ascend the hill on which the accident took place. He saw the plaintiff about a quarter of a mile ahead before the plaintiff reached the driveway to the farm house to the north. He said plaintiff reduced his speed before reaching the point opposite the driveway and appeared to be preparing to enter it, and that the plaintiff was out in the middle of the road and had slowed down to about 25 miles an hour, having "weaved" his car back and forth from one side of the road to the other as he approached the driveway. He said that the defendant's driver slowed down to about ten miles an hour when reaching within about 50 feet of the plaintiff's truck.
The defendant's driver testified that as he came over the crest of the first hill he saw the plaintiff in the low land some 600 or 700 feet ahead. He said the defendant's truck was equipped with a governor, which limited the speed to 45 miles an hour, but that he came down the first hill as fast as he could in order to make the next hill, which speed was necessary on account of the load his truck was carrying. Both the driver and the other employee of the defendant testified that they did not see any boy on a bicycle before the impact, but did see a young boy at the scene of the accident after its occurrence, but no bicycle.
There was evidence on the part of defendant's witnesses that the driver of the truck sounded his horn as he started to go around the plaintiff's truck and turned over to the left shoulder of the highway, at which time plaintiff moved further to the left and caught the plaintiff's left rear fender on the front wheel of defendant's truck and both vehicles were stopped in a very short distance.
The plaintiff in rebuttal produced a witness, a young boy 15 years of age, who testified that he rode down the driveway of the farm house in question on his bicycle shortly before the accident and turned westward up the hill on the highway; that he pulled off to the north side of the road or into the ditch in order to permit plaintiff to pass him, and that after plaintiff had passed him about 15 feet, the plaintiff began pulling back to the right hand side of the highway when the defendant's truck ran into the rear of the plaintiff's truck and continued on for about 100 feet before it stopped. He testified the lime truck was going 50 or 60 miles an hour.
Plaintiff's Instruction 1 was as follows:
"The court instructs the jury that if you find and believe from the evidence that on the 14th day of September, 1947, in the early afternoon, plaintiff Schoolfield was driving a Dodge truck west on Highway 92 at the place mentioned in evidence, and was going west, and if he was driving along said highway and in passing a boy on a bicycle, who was going in the same direction, if you so find, plaintiff Schoolfield, if so, drove his truck to the south portion of the graveled part of the roadway, and if you further find and believe from the evidence that plaintiff Schoolfield was at all times in question, exercising the highest degree of care and caution for his own safety and the safety of others, and if the jury further finds and believes from the evidence that at said time and place the witness Elliot was driving a lime truck for the defendant Parrish west on said highway, if so, and that said Elliot drove his lime truck into and against the rear part of Schoolfield's truck while Schoolfield was traveling and moving westward on said highway, and if you further find and believe from the evidence that Elliott saw, or in the exercise of the highest degree of care on his part, could or should have seen plaintiff's truck in an immediate and imminent place and position of peril and danger of being struck by the lime truck, in time thereafter, by the exercise of the highest degree of care on the part of Elliot to have slackened the speed of the lime truck and thereby avoid striking plaintiff's truck, and if you find and believe from the evidence that Elliot negligently and carelessly, if so, failed to so slacken the speed of the lime truck, and negligently and carelessly, if so, failed to keep a careful and vigilant lookout ahead and laterally, if so, and if you find and believe from the evidence that such failure on the part of Elliot to so slacken the speed of the truck, if he did so fail, and the failure on his part to keep and maintain a careful and vigilant lookout, if he did so fail, was negligence on his part, and if you further find and believe from the evidence that such negligence, if any, on the part of Elliot directly caused the collision between the two trucks, and directly caused plaintiff to be injured, then in such circumstances, if you so find them, your verdict should be in favor of the plaintiff Schoolfield and against the defendant Parish".
Defendant contends that (1) the above instruction does not come within the scope of the pleading and the evidence, and (2) that it submits plaintiff's contributory negligence, specific negligence of the defendant, and negligence under a part of the humanitarian doctrine, and is confusing and misleading. Defendant predicates his argument on the assumption that the plaintiff attempted to plead and to submit, among other charges of negligence, a ground of recovery under the humanitarian doctrine, and omitted the element of the defendant's ability, with the means at hand, to have avoided the injury to plaintiff after notice of plaintiff's position of imminent danger, and omitted to plead that defendant failed to exercise ordinary care to avert such impending injury. Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482.
Plaintiff, on the other hand, emphatically asserts that his petition did not plead or attempt to plead any ground for recovery under the humanitarian theory, but alleged, conjunctively, specifications of primary negligence only, among which were failure to keep a vigilant lookout, and negligent failure to slacken speed to avert the collision, after plaintiff's danger was seen, or could have been seen, by the defendant's driver. He points out that by the instruction he voluntarily submitted to the jury the issue of plaintiff's own exercise of the highest degree of care at the time and place in question, which he would not and should not do in a plea under the humanitarian doctrine. He maintains that an assignment of negligence consisting of failure to avert the accident by slackening the speed of his truck upon appearance of danger to the plaintiff, is a proper item of primary negligence, as is the failure to keep a lookout for other vehicles.
It was not necessary that plaintiff, in his petition, allege that he was in the exercise of the highest degree of care or to negative contributory negligence. Long v. F. W. Woolworth Co., Mo.Sup., 159 S.W.2d 619, 625. That defense was, however, pleaded in the answer. The instruction, stripped of the language pertaining only to other charges of negligence, substantially told the jury that if it found and believed from the evidence that while plaintiff was driving his truck on Highway 92, at all times in question in the exercise of the highest degree of care and caution for his own safety and the safety of others, defendant saw, or by the exercise of the highest degree of care could have seen, plaintiff's truck in an imminent position of danger of being struck in the rear by defendant's truck and in time, for the defendant, by the exercise of the highest degree of care, to have averted the collision by slackening his speed and failed to do so, and that if such failure was negligence and caused the collision, the verdict should be for the plaintiff. Although there is some language used in the amendment to the petition, and in that part of the instruction under consideration that usually appears in a petition or instruction under the humanitarian doctrine, the inclusion of the issue of the plaintiff's own contributory negligence in the instruction at hand plainly distinguishes the negligence described from that constituting the humanitarian theory.
The defendant asked for and obtained his Instruction 6, which was practically the converse of the part of plaintiff's instruction complained of. In effect it told the jury that plaintiff could not recover if he himself was negligent, and if such negligence caused or contributed to the injury, and that if, immediately before the collision, the plaintiff was operating his truck on the left hand side of the highway and was not in the exercise of the highest degree of care, and that such conduct caused or directly contributed to cause the collision, the verdict must be for the defendant. Defendant's Instruction 6 further told the jury that under the law the plaintiff must prove by the preponderance of the credible evidence that defendant was negligent in the respects set forth in Instruction 1, and that such negligence was the sole cause of the collision, but that if the jury found that plaintiff was negligent in any respect set forth in Instruction 6, such negligence need not be the sole cause of the collision, but if it directly contributed thereto, the plaintiff could not recover. In the same connection neither of the parties, in their oral arguments to the jury, argued the humanitarian theory. Defendant's counsel stated, among other things, in his argument, that "Now the Court tells you that the same degree of care in the operation of a motor vehicle rested on the plaintiff that was laid on the defendant. If, * * * the operation on the south side of the road by Schoolfield at that time was negligence, not in the exercise of the highest degree of care on his part, and if that negligence contributed to cause, * * * it was not the sole, but if it contributed to cause the accident, then the Court tells you that under the law, plaintiff cannot recover in this case".
In our opinion the quoted part of the instruction complained of, predicated upon the previously stated supposition of plaintiff's exercise of the highest degree of care at all times, was nothing more than one of the charges of primary negligence submitted by the instruction, and within the scope of the pleadings, and so treated by Court and counsel. Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W.2d 866.
Defendant further contends that there is no evidence to support the instruction because there is no proof that plaintiff signaled the defendant of his intention to turn to the south portion of the highway, nor that defendant's driver, in the exercise of the highest degree of care, could have seen plaintiff's truck in a position of peril in time to have slackened his speed and averted the collision, nor was there any evidence that he failed to maintain a proper lookout, nor of the time required for the lime truck to stop after application of brakes at certain speeds and distances, with allowances for reaction time, nor, in fact, that the plaintiff was at any time in an imminent position of peril.
It will be noted that the plaintiff did not submit the failure of the defendant to stop his truck, but failure to slacken its speed to avoid the collision. There is evidence that when plaintiff, traveling about 25 miles an hour, started "gradually" to turn to the left side of the highway to pass a boy on a bicycle, he looked into his rear vision mirror and saw no traffic approaching within 400 feet back of him. He traveled 200 to 225 feet in the process of passing the boy and had succeeded in placing the front part of his truck entirely over and to the right of the center line of the highway, when defendant's truck, traveling 50 to 60 miles an hour, overtook the plaintiff's truck and contacted the left "rear corner", or the tail light and rear left fender of plaintiff's truck with great force and violence. Under such evidence, a little less speed on the part of defendant's driver might reasonably have averted the collision. There was further evidence that when defendant's driver was on a hill to the east of the one where the collision took place, he saw plaintiff's truck on the highway in the "low land" ahead about 600 or 700 feet in front of him; that defendant's truck was loaded with over five tons of lime and its driver approached the second hill as fast as possible in order to make it. Defendant's witness testified that when within the last 50 feet of the plaintiff, defendant's driver slowed down from at least 35 miles an hour to 10 miles an hour. The inference under such testimony is clear that defendant's driver saw, or could have seen, plaintiff cross over to the south side of the highway and into a position of danger.
If the defendant's driver could have slackened his speed from 35 to 10 miles an hour within the last 50 feet before the collision, it may be reasonably inferred that he could have reduced his speed even more with the means at hand, if he had made the effort before reaching a point within 50 feet of the plaintiff's truck.
Defendant argues, in substance, that plaintiff's Instruction 1 places plaintiff on the wrong side of the highway in passing the boy on the bicycle, and requires the jury to find him guilty of contributory negligence in getting on the wrong side of the highway and in a position of peril, and without notice to the defendant in time to avert the collision. It must be recalled that the instruction required the jury first to find that the plaintiff was at all times in the exercise of the highest degree of care, in which case plaintiff could not be negligently on the wrong side of the highway when passing the boy, nor was it vital, under the evidence, to prove that plaintiff gave a signal of his intention to turn to the left in passing the boy on the highway.
Our conclusion is that plaintiff's Instruction 1 was supported by substantial evidence and was not subject to the defendant's complaints here assigned.
Defendant finally contends that the granting of the motion for new trial was proper because plaintiff's Instruction 3 submitted future suffering, disability, expense and loss of earning power, without evidence to support such future damages. There was medical testimony that plaintiff's injury was caused by the severe jerk or snapping back of plaintiff's head at the time of the collision, similar to "a whiplash". The accident was in September, 1947, and the plaintiff, at the trial in March, 1949, was still wearing his neck brace when "not doing his chores", and he testified that the pain in his neck and arm was "with me all the time"; that he is able to do only about one-third of the work he performed prior to the collision. One doctor outlined one course of treatment involving the wearing of a neck brace for 12 weeks, accompanied by immobilization and relaxation to give the neck nerves opportunity to adjust themselves, and if that did not "do any good", then confinement in a hospital with the use of straps, weights, stretching and sedation, and, third, hospital treatment, including massages, exercises and physiotherapy. All of these methods, he said, were mere possibilities, there being no way to "underwrite any man's comfort". Defendant's doctor, speaking of the affliction in plaintiff's arm, resulting from the spinal nerve disturbances, said he believed the pain in the arm would improve "but if the compression stayed there he would probably have some permanent damages". We conclude that there was substantial evidence to support the future damages referred to in Instruction 3.
The order of the trial court granting a new trial is reversed and the cause is remanded with directions to reinstate the verdict and judgment for plaintiff.
BROADDUS, J., concurs.
CAVE, J., not participating.