Opinion
December 11, 1940.
1. PLEADINGS: Contributory Negligence. In an action for injuries to plaintiff caused when defendant backed his automobile against her, where the defendant's answer was a general denial, an allegation that whatever injuries plaintiff sustained were a direct result of her own negligence in failure to use ordinary care, it was not a plea of contributory negligence.
2. NEGLIGENCE: Submissible Case. Where plaintiff was crossing the street from the south to the north where automobiles were parked except in front of a driveway to private property and where defendant coming from the east to the west stopped for a car parked next to the driveway to back out and then backed three car lengths without warning for the purpose of driving into that place and struck plaintiff who was looking to the east for coming automobiles, the plaintiff was not guilty of contributory negligence as a matter of law; the case was properly submitted to the jury.
3. DAMAGES: Instruction. In an action for damages to plaintiff caused when defendant backed his automobile against her, an instruction that told the jury that a failure of defendant to exercise the highest degree of care constituted negligence and the court also instructed the jury that a failure to exercise ordinary care constituted negligence, there being no issue of contributory negligence the ordinary care instruction was erroneous.
The error was not harmless because the jury was confronted with two different definitions of negligence which were in direct conflict.
The instruction defining negligence as the failure to exercise ordinary care was prejudicial.
Appeal from Circuit Court of St. Louis County. — Hon. John A. Witthaus, Judge.
REVERSED AND REMANDED.
Eliot, Blayney Bedal for appellant.
(1) The second and eighth instructions conflict and the giving of conflicting instructions is prejudicial error. Woods v. Ogden, 102 S.W.2d 648; Wilson v. Chattin, 335 Mo. 375, 72 S.W.2d 1001; Gardner v. Met. Street Ry. Co., 223 Mo. 389, 122 S.W. 1068. (2) Failure of defendant to plead specific acts of negligence in an answer stating plaintiff's injuries were sustained as a result of her own negligence does not relieve defendant of the necessity of setting out specific acts of negligence in an instruction based upon the evidence. Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W.2d 767; Benjamin v. Met. Street Ry. Co., 245 Mo. 598, 151 S.W. 91; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Schide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777. (3) A pedestrian may cross a public street at a place other than an intersection and not be negligent as a matter of law and it is an automobile driver's duty to keep a lookout for pedestrians crossing a street at places other than intersections. Miller v. Williams, 76 S.W.2d 355; Meenach v. Crawford, 187 S.W. 882; Marks v. Hurst, 296 S.W. 249; Michelson v. Davis, 227 S.W. 641; Reynolds v. Grain Belt Mills Co., 229 Mo. App. 380, 78 S.W.2d 12; Lowry v. Smith, 199 Mo. App. 163, 198 S.W. 437. (4) Instruction 7 could only have place as a sole cause instruction. It was erroneous because it left room for the consideration of contributory negligence as a defense and did not contain the proper elements of a sole cause instruction. Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234; Connole v. Ill. Cent. Ry., 21 S.W.2d 907. (5) If Instruction 7 was a correct instruction, then the court should have given plaintiff's refused Instruction 2. The only evidence in the case was that plaintiff looked as she was crossing Olive Street and did not see defendant's car backing into her and that defendant looked as he was backing his car, but did not see plaintiff crossing Olive Street. Hilton v. Terminal Railroad Assn., 137 S.W.2d 520; Hook v. Mo. Pac. Ry. Co., 162 Mo. 581, 63 S.W. 362; Carner v. St. L.S.F. Ry. Co., 338 Mo. 257, 89 S.W.2d 947; Fitzgerald v. Norman, 252 1197 S.W. 43; Lowry v. Smith, 199 Mo. App. 168, 198 S.W. 437; State ex rel. Wab. Ry. Co. v. Trimble, 260 S.W. 1000; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065. (6) The court should have given plaintiff's refused Instruction 3, based on the humanitarian rule. Hilton v. Terminal Railroad Assn., 137 S.W.2d 520; Kick v. Franklin, 137 S.W.2d 512, Id., 342 Mo. 715, 117 S.W.2d 284; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; State ex rel. Sirkin v. Hostetter, 340 Mo. 211, 101 S.W.2d 50; Chapman v. Mo. Pac. Ry., 217 Mo. App. 317, 269 S.W. 688; State ex rel. Wab. Ry. Co. v. Trimble, 260 S.W. 1000; Miller v. Williams, 76 S.W.2d 35. (7) The undisputed evidence is that defendant gave no warning when he was backing his automobile, and this constituted negligence on his part. Kick v. Franklin, 137 S.W.2d 512, Id., 342 Mo. 715, 117 S.W.2d 284; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; State ex rel. Sirkin v. Hostetter, 340 Mo. 211, 101 S.W.2d 50; Sec. 7779a, R.S. 1929; Traut v. Bright, 10 N.J. Misc. 914, 161 A. 354; Blashfield Cyc. of Automobile Law, ch. 30, sec. 1103; Herrin v. Stroh Bros. Co., 263 S.W. 874; Gillis v. Singer, 86 S.W.2d 357.
Bishop, Claiborne Heneghan for respondent.
(1) Although defendant respectfully, vigorously and emphatically asserts that the alleged errors set forth by plaintiff in her brief are not errors at all, much less material errors, defendant respectfully states that such errors, even if existent, would be harmless anyway, because of the fact that plaintiff failed to establish a cause of action, and, furthermore, because plaintiff was guilty of contributory negligence as a matter of law. Conroy v. St. Jos. Ry., L., H. P. Co., 134 S.W.2d 93; Lappin v. Prebe, 131 S.W.2d 511; Dempsey v. Horton, 84 S.W.2d 621, 337 Mo. 379; Parkville Milling Co. v. Mossman, 83 S.W.2d 128; Phillips v. Henson, 30 S.W.2d 1065; Epstein v. K.C. Pub. Serv. Co., 78 S.W.2d 534; Weisbaar v. K.C. Pub. Serv. Co., 128 S.W.2d 338; Miller v. Wilson, 288 S.W. 997; Putnam v. Unionville Granite Works, 122 S.W.2d 389; Sapp v. Carmen Co., 95 S.W.2d 658; Boulis v. Morris Co., 257 S.W. 482; Wren v. Suburban Motor Transfer Co., 241 S.W. 464. (2) No conflict exists between the second and eighth instructions, and if any conflict does exist, then such conflict is harmless. Cuddy v. Shell Pet. Corp., 127 S.W.2d 24; Bouligny v. Met. Life Ins. Co., 133 S.W.2d 1094; Crawshaw v. Mable, 52 S.W.2d 1029; Conroy v. St. Jos. Ry., L., H. P. Co., 134 S.W.2d 93; Lappin v. Prebe, 131 S.W.2d 511; Williams v. Excavating Co., 93 S.W.2d 123, 230 Mo. App. 973; Green v. Baum, 132 S.W.2d 665; Savage v. Union Electric L. P. Co., 86 S.W.2d 102. (3) When the defendant in his answer set forth negligence in general terms which would defeat plaintiff's recovery, the same is sufficient as a pleading unless challenged by motion to make more definite and certain, and defendant is only obliged to submit an instruction based specifically on the evidence under such pleading. Watts v. Mousette, 337 Mo. 533, 85 S.W.2d 487; Cuddy v. Shell Petroleum Co., 127 S.W.2d 24. (4) Defendant does not deny, as averred in appellant's point (3), that "A pedestrian may cross a public street at a place other than an intersection and not be negligent as a matter of law, and it is an automobile driver's duty to keep a lookout for pedestrians crossing a street at places other than intersections," but defendant asserts that when the pedestrian takes it upon himself or herself to cross at a place other than an intersection, he or she is charged with the duty of a higher degree of care. Reynolds v. Grain Belt Mills Co., 229 Mo. App. 380, 78 S.W.2d 124; Lowry v. Smith, 199 Mo. App. 163, 198 S.W. 437.
Action to recover $11,941 for personal injuries. The petition alleged that defendant negligently backed his automobile against her as she was crossing the street. The case was submitted to the jury on defendant's failure to warn that the automobile would be moved backward. Judgment for defendant and plaintiff appealed.
After a general denial the answer alleged that whatever injuries plaintiff sustained were a direct result of her own negligence in failing to exercise ordinary care for her own safety. This is not a plea of contributory negligence. [O'Donnell v. B. O. Railroad Co., 324 Mo. 1097, 26 S.W.2d 929; Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066; Benjamin v. Ry. Co., 245 Mo. 598, 151 S.W. 91; Hanke v. City of St. Louis, 272 S.W. 933; Miller v. Engle, 185 Mo. App. 558, 172 S.W. 631; Cain v. Wintersteen, 144 Mo. App. 1, 128 S.W. 274; Ramp v. Ry. Co., 133 Mo. App. 700, 114 S.W. 59.] The authorities are reviewed in the O'Donnell case. The rulings of the Courts of Appeals in Crawshaw v. Mable, 52 S.W.2d 1029, and Cox v. Bondurant, 220 Mo. App. 948, 7 S.W.2d 403, to the contrary, are to that extent overruled.
Plaintiff assigns error. Even so, defendant contends that the evidence did not authorize a submission of the case to the jury. The evidence tends to show the following:
Olive Street and Grand Avenue are intersecting streets in the City of St. Louis. Olive Street runs east and west, and Grand Avenue runs north and south. The eastbound street car tracks are on the south side of Olive Street, and the westbound street car tracks are on the north side of Olive Street. Automobiles were parked along the north side of Olive Street except in front of a driveway from the street to private property. Plaintiff was injured while crossing from the south side of Olive Street to this driveway, which led to the sidewalk. She was crossing the street about two hundred fifty feet west of the intersection.
As plaintiff proceeded from the south side of the street she looked to the west for approaching automobiles until she crossed the eastbound track. Thereafter she looked to the east and saw three automobiles approaching. They passed her traveling westward, and she proceeded northward. The first automobile passing the plaintiff was driven by the defendant, who was looking for parking space on the north side of the street. In passing he saw the driver of the parked automobile immediately east of the open driveway preparing to vacate that space. Thereupon he stopped his automobile about three car lengths west of said automobile. After the automobiles following him had passed, defendant, without warning, backed his automobile against the plaintiff, who had not noticed defendant's car.
On this evidence, and under Sec. 7775, R.S. 1929, the jury could find that defendant, in the exercise of the "highest degree of care," should have sounded a warning before moving the automobile backward. Furthermore, there was no evidence tending to show that plaintiff knew or had reason to believe that a passing automobile would be stopped west of the private driveway and moved backward. She was looking eastward for approaching automobiles and was not guilty of contributory negligence as a matter of law. The case was properly submitted to the jury.
Plaintiff assigns error on an instruction. The court instructed the jury that a failure to exercise the "highest degree of care" constituted negligence as that term is used in these instructions. The court also instructed the jury that a failure to exercise "ordinary care" constituted negligence as that term is used in these instructions.
Absent an issue of contributory negligence, and on this record, it was error to give an "ordinary care" instruction. Defendant argues that the error was harmless. We do not think so. The jury was confronted with different definitions of "Negligence." In other words, the instructions were in direct conflict, and the instruction defining negligence as the failure to exercise "ordinary care" was prejudicial. [Woods v. Ogden, 102 S.W.2d 648.]
The judgment is reversed and the cause remanded. All concur.