Opinion
No. 7074.
January 12, 1953.
APPEAL FROM THE CIRCUIT COURT, PEMISCOT COUNTY, JOSEPH H. ALLEN, J.
Raymond A. Klemp, Caruthersville, Haw Haw, Charleston, for appellant.
Ward Reeves, Caruthersville, for respondent.
This is an action for damages for personal injuries alleged to have been received as a result of having been struck by defendant's automobile. The jury returned a verdict for plaintiff for $5,000. Defendant filed a motion to set aside the verdict and judgment and to enter a judgment for defendant, or, in the alternative, to grant a new trial. The trial court sustained the motion to set aside the verdict and judgment and entered judgment for defendant but did not pass upon the defendant's motion for a new trial. Plaintiff appealed.
Plaintiff's cause of action is based upon both primary negligence and humanitarian negligence.
The answer was a general denial of the grounds of negligence alleged in the petition and a plea of contributory negligence.
In our opinion we will refer to appellant as plaintiff and to respondent as defendant, the position of the parties in the lower court.
The evidence in this case was brief. It consisted of the testimony of plaintiff and his attorney. The defendant did not offer any evidence. We here, briefly, state such part of the evidence as is necessary for the decision of this case.
Plaintiff, William Clyde White, gave the following testimony:
"Q. Where were you on the 16th day of August, 1950? A. I was in Hayti, Missouri.
"Q. Yes. Did you happen with an accident on that occasion? A. I did on the night of the 16th.
"Q. Tell the jury what it was? A. Well, I was run over by Mr. Barkovitz's car and had a broken pelvis —"
Plaintiff was asked if he talked to defendant after the injury and testified that he didn't see defendant for about eight weeks, when he told defendant that the hospital wanted to collect their bill. He gave this testimony:
"Q. Did he in any of his conversation tell you that it was his car or he was the driver that run over you? A. * * * He didn't tell me anything and never spoke to me for about eight weeks.
"Q. State the circumstances you was struck, where you was, and how you was, and the circumstances how and what position you were in at the time you was struck by the car? A. Well, I was on the northwide of the Barkovitz house and set down on the side of the curb and had a heart attack and sat down there, and when I was struck I was sitting there and run over the right leg, and hit in the side of the head and run over there.
"Q. What was your condition with reference to being sober and at yourself and knowing what was going on at that time, or where you asleep or what? A. I must have been asleep.
"Q. That don't answer the question. A. I didn't know what was going on when or until I was knocked over.
"Q. You didn't know what was going on when you were struck — did you know there was a car about to approach or approaching you when you were struck? A. I didn't.
"Q. You were sitting on the curb? A. Yes, sir.
"Q. Your feet in the gutter? A. That's right."
On cross-examination plaintiff testified that he was 51 years old and lived in Hayti. He gave this testimony:
"Q. Now, Mr. White, on this particular night in question, where had you been? A. I had been to town.
"Q. Where had you been up town? A. I went in the saloon.
"Q. Had some drinks? A. A couple of drinks, yes.
"Q. And started home? A. That's right.
"Q. And how far were you from home before you stopped? A. * * About three blocks.
"Q. And you went down and sat right in front of this automobile, didn't you? A. Sat down on the curb, yes.
"Q. It was dark, wasn't it? A. It wasn't too dark.
"Q. You went to sleep? A. I imagine I did.
"Q. You don't know what happened until you were hurt, is that right? A. I know I had a heart attack and sat down there.
"Q. And you went to sleep — passed out? A. I imagine that's right, I went to sleep.
"Q. You don't know of your own knowledge, own personal knowledge, who was driving this car, do you, except what other people have told you, do you? A. Well, the man doesn't deny driving it.
"Q. Has he told you he was driving it? A. His brother.
"Q. Has Mr. Barkovitz? A. I don't think he has told me anything.
"Q. Now, Mr. White, you went to sleep there, you say, is that right? A. I imagine that's right.
"Q. And you saw this car before you went there or sat down there in the street, is that correct? A. Well, I think there was a car there.
"Q. Parked there and you sat down right in front of it and went to sleep, is that right? A. I sat down there a short distance.
"Q. You sat down and went to sleep in front of the car? A. I had a heart attack.
"Q. And then you went to sleep? A. I don't know if I was exactly asleep.
"Q. What were you, tell the jury? A. I didn't know everything going on.
"Q. So you don't know whether you were laying down or sitting down at the time, or what happened, at the time this automobile hit you? A. Sitting down.
"Q. How do you know if you were asleep and don't know what happened? A. The way I got hit."
The witness testified that he had knowledge enough to know he was sitting. When asked if he were guessing about that he gave this answer: "A. I don't think so." Then he testified:
"Q. Well, anyway, this car hit you, is that right? A. I am pretty sure it did."
He testified that he wasn't crossing the street; that he just sat down on the curb. He stated he was just walking down the sidewalk and, when asked if he were not drunk, stated that he had had a couple of drinks. He testified he had had a heart attack some two days before this but he hadn't been to a doctor for 15 years with reference to his heart. When asked if he went sound asleep, he gave this answer: "I don't know, sir."
John E. Duncan, plaintiff's attorney, testified that defendant, with some kind of insurance adjuster, came to his house and began talking about this case; that he said to defendant, "you didn't use diligence," and he said, "I don't see why, who do you expect to run around the car and see if there is anyone in front of it", and admitted he was driving at the time.
Plaintiff then offered the city ordinance which required people using the street to park on the right side in the direction in which they are traveling.
This is all of the testimony.
Plaintiff's assignment of error No. I is that the court erred in setting aside the verdict of the jury and the judgment entered thereon:
"1. The plaintiff's evidence was uncontradicted. It must be viewed in the light most favorable to plaintiff, who must be given the benefit of all inferences favorable to his case."
Plaintiff cited Sollenberger v. Kansas City Public Service Co., 356 Mo. 454, 202 S.W.2d 25, 29, and a number of other cases of which we deem unnecessary to cite. This is a well admitted principle of law with which we agree.
"2. Plaintiff's evidence was sufficient to support the verdict and judgment in his favor."
As to both primary negligence and humanitarian negligence relied upon by plaintiff in this case, it was necessary for plaintiff to offer evidence to establish such negligence. Negligence cannot be assumed in any case. Joplin v. Franz, Mo.App., 240 S.W.2d 209, 210, 211.
It has been repeatedly held that only where there is a complete absence of probative facts to support the conclusion reached by the jury does reversible error appear. If there is evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. The appellate court's function is exhausted when there appears an evidentiary basis for the jury's finding. It is immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.
In determining whether or not there is an evidentiary basis for the finding of the jury, the evidence of the plaintiff is to be taken as true and all reasonable inferences that can be drawn therefrom and any evidence offered by the defendant that supports plaintiff's case. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Ford v. Louisville N. R. Co., 355 Mo. 362, 196 S.W.2d 163, 167; Brown v. Moore, Mo. Sup., 248 S.W.2d 553; Wilhelm V. R. S. Buchanan Co., Mo.App., 131 S.W.2d 894, 895, 897; Clark v. City of Springfield, Mo. App., 241 S.W.2d 100, 104.
Considering the allegations of negligence relied upon by plaintiff for recovery in this case, under the law as above stated, we find, first, that there is absolutely no evidence that would justify the submitting of the question of the violation of the city ordinance of the city of Hayti as a ground for negligence. The plaintiff did not testify, nor did anyone else, that the car operated by defendant was parked on the wrong side of the street or highway or that it was operated on the wrong side of the street. The record is wholly silent as to what side of the street, if any, defendant's car was parked on at the time of the accident or in what direction it was traveling.
We also find there was no evidentiary basis to support the jury's verdict in finding that defendant was negligent in failing to keep a lookout and that because of such primary negligence, plaintiff was injured.
Plaintiff did not testify definitely that there was a car parked anywhere at the time he sat down on the curb. He merely says he "thinks" there was a car there. He does not testify how fare he was from the car when he sat down in front of it. He says "some distance." The only way the jury could tell that one could have seen plaintiff by keeping a lookout would be to guess or surmise that plaintiff was a sufficient distance from the front of the car that he could be discovered by defendant who was, under the law, at the time, required to use the highest degree of care to not injure plaintiff. For all this evidence shows plaintiff might have been in such close proximity to the car as to not be revealed by the light from the car.
It is the duty of plaintiff to offer substantial evidence to support his allegation of negligence and the jury cannot guess a verdict. Joplin v. Franz, supra; Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 669, 670, 672.
In Bowers v. Columbia Terminals Co., supra, 213 S.W.2d on page 670, the court said:
"It is frequently said that the facts and circumstances shown must be such that the necessary facts to support a verdict may be inferred and must reasonably follow, and that the evidence must exclude guesswork, conjecture, and speculation as to the existence of the necessary facts. * * *"
There were no facts in evidence in the case at bar from which the jury could reasonably infer that defendant, using the highest degree of care in the operation of his automobile, could have avoided the injury in question, therefore, there is no substantial evidence to support the verdict as to the allegation of error that defendant failed to keep a lookout.
We also agree with defendant that plaintiff was contributorily negligent in sitting down and going to sleep in front of a parked car at night with his feet out in the street so that the car would necessarily strike him when started up. There is no evidence to show that plaintiff was actually sitting up. He says he was sitting up because of the fact that he was hit in the head. That is a mere conclusion on his part. He definitely testifies that he was asleep and did not know what happened until he was struck. The fact that he voluntarily placed himself in a position of danger constitutes negligence which contributed to his injury and is a bar to recovery under primary negligence. Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573.
Plaintiff also relied for recovery upon humanitarian negligence. He pleads in his petition that if defendant had used the highest degree of care in the operation of his automobile by keeping a lookout, he could have discovered the plaintiff in his position of peril and avoided striking or running over and injuring plaintiff.
We think that plaintiff's evidence that he sat down in front of a parked car at night and put his feet out in the street and that he went to sleep furnished a basis for the jury to find that he was in a position of peril and oblivious to his danger. But we think the evidence wholly fails to show facts and circumstances from which reasonable inferences might be drawn that defendant, by the use of the highest degree of care, discovered plaintiff's peril either actually or constructively.
In Murphy v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 31, 34, the court states the following law:
"* * * `A charge that failure to keep a lookout is the proximate cause of an injury, whether the duty to look arises either because of the place or because of the circumstances, is a charge of primary negligence * *. In other words, in spite of a failure to keep a lookout, the humanitarian doctrine may come into operation, not because that is in itself humanitarian negligence, but because we have, at places where there is a duty to keep a lookout, extended the humanitarian rule to discoverable as well as discovered peril.' Under the discoverable peril theory a defendant is charged with seeing what he could have seen whether he looked or negligently failed to look. The law makes it so and `* * there is no question about it. * * * If there was a duty to keep a lookout, the question is could he have been seen in time if it had been kept, and not was a lookout kept.' [Mayfield v. Kansas City So. R. Co., 337 Mo. 79] 85 S.W.2d [116] loc. cit. 124 (15, 16). And see 85 S.W.2d loc. cit. 125. Consult State ex rel. Brosnahan v. Shain, 344 Mo. 404, 126 S.W.2d 1193, 1196; * * *."
In the case at bar the question is, could plaintiff have been seen by the defendant in time to have avoided the injury by all the means he had at hand. The evidence must have shown facts from which the jury could draw a reasonable inference that plaintiff could have been seen by defendant in time to have avoided the injury. We think the evidence wholly fails to show substantial evidence to support the verdict of the jury on this issue.
Plaintiff's assignment of error No. II asked that the judgment be reversed with directions that the trial court set aside its order of setting aside the judgment for plaintiff and rendering judgment for defendant and to reinstate the verdict and judgment for plaintiff as of the date it was originally entered.
It will be noted in this case that the defendant filed a motion to set aside the verdict and judgment for plaintiff and to enter judgment for defendant, or, in the alternative, to grant a new trial; that the court sustained that part of the motion to enter judgment for defendant, notwithstanding the verdict but failed to pass on the motion for new trial and defendant, under its assignment No. II, in its brief, asked the court, in the event the court sets aside the judgment on this appeal, to order a new trial for reversible errors contained in the instructions, the giving of which is set out in the motion as grounds for a new trial. Defendant contends that the proper procedure is provided in Caddell v. Gulf, M. O. R. Co., Mo.App., 217 S.W.2d 751, and in Hughes v. St. Louis National League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, 992.
In the Caddell case where, on motion by defendant in accordance with its motion for a directed verdict, or, in the alternative, for new trial, the court states the following law, 217 S.W.2d on pages 757 and 758:
"The Civil Code provides that `it shall be construed to secure the just, speedy, and inexpensive determination of every action.' Section 2. Rule 3.27 provides: `Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.' It is provided by Section 140(c) as follows:
"`The appellate court shall examine the transcript on appeal and, subject to the provision of subsections (a) and (b) of this section, award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as such court ought to have given, as to the appellate court shall seem agreeable to law. Unless justice requires otherwise the court shall dispose finally of the case on appeal and no new trial shall be ordered as to issues in which no error appears.'
"* * * The complaint in the application of the defendants for certiorari was that the Court of Appeals had considered errors against the non-appealing plaintiff. In upholding the Springfield Court of Appeals the Supreme Court said, `It may be conceded that Fagg, not having appealed, could not complain of the error in the instruction to which the Court of Appeals refers in its opinion. Scott v. Ferguson, 235 Mo. 576, 139 S.W. 102. The question is, however, not what Fagg could do, but whether the Court of Appeals in remaining the cause ran counter to the decisions of this court upon which relators rely to convict that court of getting outside the law applicable to that question. Relators cite numerous decisions (see briefs) in which this court and the Court of Appeals have refused to consider complaints of errors committed against the party who succeeded in the trial court. * * * In none of them, so far as our examination has gone, did this court hold that, upon the question whether it would reverse the judgment outright or would reverse it and remand the cause, it might not consider everything the record showed.'
"The Scullin case [State ex rel. Scullin v. Robertson, Mo. Sup., 187 S.W. 34] cites and quotes at length from the case of Turner v. Anderson, 236 Mo. 523, loc. cit. 542, 139 S.W. 180 et seq., 185, wherein is the following statement: `It is also settled practice to reverse and remand for a new trial generally where that course meets the ends of refined justice. * * *'
"Section 113 of our Civil Code is patterned after Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. This rule was carefully analyzed and interpreted by the United States Supreme Court in the case of Montgomery Ward Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. In that case the trial court (district court) merely entered a judgment for the defendant notwithstanding plaintiff's verdict, and did not rule on the defendant's motion for a new trial which was joined with his motion for judgment notwithstanding the verdict. With that state of the record the Supreme Court held that the district court erred in sustaining the motion for judgment notwithstanding the verdict, and further held that the cause be remanded to the district court to hear and rule upon the motion for a new trial. However, in the course of the opinion the Supreme Court said, 311 U.S. loc. cit. 253, 254, 61 S.Ct. loc. cit. 195, 85 L.Ed. 147: `If alternative prayers or motions are presented, as here, we hold that the trial judge should rule on the motion for judgment. Whatever his ruling thereon he should also rule on the motion for a new trial, indicating the grounds of his decision. If he denies a judgment n. o. v. and also denies a new trial the judgment on the verdict stands, and the losing party may appeal from the judgment entered upon it, assigning as error both the refusal of judgment n. o. v. and errors of law in the trial, as heretofore. The appellate court may reverse the former action and itself enter judgment n. o. v. or it may reverse and remand for a new trial for errors of law. If the trial judge, as he did here, grants judgment n. o. v. and denies the motion for a new trial, the party who obtained the verdict may, as he did here, appeal from that judgment. Essentially, since his action is subject to review, the trial judge's order is an order nisi. The judgment on the verdict may still stand, because the appellate court may reverse the trial judge's action. This being so, we see no reason why the appellee may not, and should not, cross-assign error, in the appellant's appeal, to rulings of law at the trial, so that if the appellate court reverses the order for judgment n. o. v., it may pass on the errors of law which the appellee asserts nullify the judgment on the verdict.'"
Under this authority in the case at bar, we hold that where the trial court sustained the motion for a directed judgment for defendant but did not pass upon the motion for new trial and where justice requires that we reverse the trial court of this judgment, we can also pass upon errors assigned by appellee in said motion for a new trial and can reverse and remand said cause for re-trial by the trial court. Therefore, in this case we find against plaintiff's contention that we can only reverse a case and order the judgment reinstated for him.
In defendant's brief, under assignment III, he complains of Instructions numbered 1 and 2, given at the request of plaintiff.
It is defendant's contention that these instructions predicate recovery on primary acts of negligence and is error because plaintiff is guilty of contributory negligence as a matter of law.
We have held that plaintiff's evidence shows him to have been guilty of contributory negligence as a matter of law because he voluntarily placed himself in a position of danger and his acts contributed to his injury.
Instruction No. 1 was erroneous because it submitted a theory of negligence to the jury based upon the violation of the city ordinance when there was no evidence to justify the giving of such a theory. We have set out the evidence in full touching upon this subject and find that there is positively no testimony to show a violation of the ordinance pleaded.
Instruction No. 2 requires facts to be found which might constitute primary negligence and humanitarian negligence. The instruction is erroneous because there is no evidence on which to base the theory of humanitarian negligence.
Instruction No. 2, given on behalf of defendant, was a proper instruction under the evidence. It told the jury that it should not consider the fact that defendant parked his automobile on the left side of the street in determining defendant's negligence in other instructions given. This instruction is in conflict with instruction No. 1 given for plaintiff.
The jury returned a general verdict under instructions that submitted different theories of negligence, all of which, we hold were not supported by the evidence. The judgment would be erroneous if any one of these theories were not supported by the evidence.
We find that the judgment of the trial court sustaining defendant's motion for judgment in accordance with his motion for directed verdict should be affirmed. So holding, it is unnecessary to pass upon errors assigned as to the instructions by defendant.
Judgment affirmed.
VANDEVENTER, P. J., concurs.
BLAIR, J., not sitting.