521 S.W.2d 33 | Mo. Ct. App. | 1975
Laura Ann Anderson, a pedestrian aged 9i/2 years at time of injury, sued Terry Sellers, driver of an automobile, for $15,000 damages for personal injuries sustained by her when, as she was attempting to cross Big Bend Boulevard in St. Louis in the company of her 11-year-old sister, she was struck by the front end of Sellers’ automobile.
Plaintiff’s case was submitted to the jury on primary negligence — failure to keep a careful lookout. Defendant pleaded and submitted the defense of contributory negligence. A trial jury returned a verdict for defendant. Plaintiff appeals from the judgment entered on the verdict, contending that the trial court erred in giving Instruction No. 5, offered by defendant on the issue of contributory negligence, and that the trial court erred in refusing Instruction A, offered by plaintiff.
Instruction No. 5 follows:
“Your verdict must be for the defendant on the claim of the plaintiff Laura Anderson for damages if you believe:
“First, plaintiff Laura Anderson moved into the path of defendant’s automobile when in the exercise of ordinary care she could have seen the movement of defendant’s automobile and could have avoided contact with defendant’s automobile; and
“Second, Laura Anderson was thereby negligent; and
“Third, such negligence of plaintiff Laura Anderson directly caused or directly contributed to cause any damage plaintiff Laura Anderson may have sustained.
“The term ‘negligence’ as used in this Instruction with respect to plaintiff Laura Anderson means the failure to use that degree of care which an ordinarily prudent girl of the same age, capacity and experience would use under the same or similar circumstances.”
Plaintiff complains that the simple requirement of a finding that plaintiff “moved into the path, etc.” was prejudicially erroneous; that it failed to require a finding of any specific act or omission upon which to predicate a finding of negligence; that if it was intended to submit failure to keep a lookout it deviated from the form prescribed by MAI 17.05, to plaintiff’s prejudice; and that if it was intended to submit failure to avoid a collision it should have required a finding of apparent danger of collision.
On the day in question the weather was warm, dry and sunny. The surface of the road was paved with asphalt, which was dry. Plaintiff was struck at a point on Big Bend Boulevard approximately 50 feet south of its intersection with Maple Avenue. At that point Big Bend runs north and south, is 36½ feet wide, has a yellow center dividing line and is essentially level. Lane markings provide two lanes for northbound traffic and two lanes for southbound traffic. Comfort Avenue intersects Big Bend one block south of Maple. Flora Avenue intersects Big Bend one block south of Comfort. There are no traffic signs or signals for the control of north or southbound traffic on Big Bend and no marked crosswalks crossing Big
According to plaintiff and her sister Julie the two girls left the west curb of Big Bend and stopped when they reached the center line. At the center line they were holding hands. Before leaving the west curb they checked both ways for traffic, looking first to the north, then to the south. They were able to get to the center line without difficulty. They denied that they had any narrow escapes from southbound vehicles before reaching the center line. The only traffic in sight when they left the west curb was defendant’s northbound automobile, which was about two blocks away at Flora at that time. By the time they stopped at the center line defendant’s car had reached Comfort and was continuing north at undiminished speed, in the lane next to the center dividing line. Plaintiff saw defendant’s car approaching, completely in its own lane with no part of it on the center line where she was standing. She did not know why the approach of defendant’s car would cause her any problem, but she became frightened of being struck and in a state of panic broke away from Julie and ran into the path of defendant’s moving car. She knew that she could get hurt if she got in front of a moving car. She heard the squealing of brakes before she started to run, and admitted that there may have been some cars going south as she started to run into the path of defendant’s northbound car. When she broke away from her sister’s grasp and started to run across the northbound lane she did not know how close defendant’s car was to her. Julie did not recall if there were any automobiles proceeding south-wardly when her sister pulled away from her and started to run into the northbound lane. She had no idea how close the defendant’s car was when her sister began running into its path. She yelled at her sister but did not remember whether she heard the squealing of brakes before she yelled.
According to Roger Swierk, driver of a southbound car, there was another southbound car (which did not stop after the casualty and was never identified) traveling south some 200 feet in front of Swierk. The unidentified car’s taillights lighted up, Swierk heard the squeal of tires, and the car ahead of him veered somewhat to the left, but not over the center line. At the same time Swierk noticed two girls entering Big Bend from between cars parked on the west side of Big Bend. The quick action of the driver of the unidentified car in swerving “gave the girls enough clearance and with the warning from the squeal of the tires, they parted company by turn
Instruction No. 5.
There is no MAI form submitting the contributory negligence of a pedestrian who leaves a place of safety with actual or constructive knowledge of the approach of a moving vehicle and moves into the immediate path of the vehicle. In the pre-MAI case of Le Grand v. U-Drive-It Co., 247 S.W.2d 706 (Mo.1952), approval was given this language: “ * * * plaintiff negligently moved into the path of the automo-t)ile * * * when said automobile was so close to plaintiff that it was impossible for [defendant] to have avoided the collision.” In attempts to adapt MAI 32.01 to this situation the following instructions were given (but not approved in form) in Morris v. Duker, 414 S.W.2d 77 (Mo.1967): “ * * * plaintiff * * * left a place of safety and walked into the immediate path of defendant’s vehicle”; and Young v. Grotsky, 459 S.W.2d 306 (Mo.1970): “ * * * plaintiff * * * stepped into the path of [defendant’s] automobile when it was not reasonably safe to do so.”
Defendant patterned Instruction No. 5 after Instruction No. 6 in Krez v. Mickel, 431 S.W.2d 213 (Mo.1968), which directed a verdict for defendant if the jury believed that plaintiff “failed to move out of the path of defendant when in the exercise of ordinary care she could have seen the movements of defendant and could have avoided coming in contact with him,” and that plaintiff was thereby negligent. Mrs. Krez, standing on the edge of a public sidewalk, was knocked down by a pedestrian who was running along the sidewalk. She saw five boys approaching her, running, had time to take one step backwards (which would have put her in a safe position behind a steel barricade) but did not make the move. The question was whether Instruction No. 6 was supported by the evidence. The propriety of the form of the instruction was not in issue and was not ruled upon.
The ultimate fact in the case before us is whether the injured party negligently and needlessly exposed herself to harm with actual or constructive knowledge of the impending force. Although Instruction No. 5 is no model for a pattern instruction we approve its use in the circumstances of this case and consider that it sufficiently complies with the requirements of Rule 70.01(e), V.A.M.R. In simple, brief, impartial language, without argument, it submits ultimate facts, not abstract statements of law. It requires that the jury believe that plaintiff moved into the path of defendant’s automobile when in the exercise of ordinary care she could have seen its movement and avoided it, thus submitting the ultimate fact issue, which is whether plaintiff’s act of entering the path of the oncoming force with constructive knowledge of its movement and ability on her part to avoid injury constituted negligence directly causing or contributing to cause her injury.
Plaintiff suggests that the thrust of Paragraph First is negligent failure to have “avoided contact with the defendant’s automobile”; that this is a general, ambiguous and all-inclusive phrase needing definition; that the language is not specific and should have hypothesized sufficient facts to inform the jury what her duty was and what acts or omissions on her part constituted breach of that duty; that plaintiff had no duty to act or omit acting until she knew or in the exercise of ordinary care could have known that there was reasonable likelihood of a collision. We see it differently. We consider the gist of the submission of negligence to be that of moving into the path of the automobile with knowledge of its movement and with ability to avoid a collision. While Instruction No. 5 does not specifically refer to leaving a place of safety and entering a dangerous position when it was unsafe to do so, any reasonable juror would so understand the instruction, in the light of the evidence. It was an undisputed, physical fact that plaintiff was safe as long as she stayed put on the center line. It was for the jury to determine whether plaintiff was unsafe as soon as she broke and ran into the traffic lane next to the center line. There was no need to encumber the instruction by hypothesizing evidentiary detail.
We are not persuaded by plaintiff’s contention that the “could have avoided contact” language of the instruction constituted a roving commission to speculate on what conduct of plaintiff constituted negligence. There is no evidence that plaintiff would have been injured if she had remained stationary on the center line. It is an undisputed physical fact that if she had turned to the north or south and followed the center line she would have avoided contact with the automobile, as long as it continued to proceed in its continuing course, with its left side 2 feet east of the center line. Obviously if plaintiff turned around, faced west and proceeded in that direction she would have avoided contact with defendant’s automobile. That she could have avoided contact with defendant’s automobile by standing still is a self-evident, undisputed if not conceded fact which needed no elaboration in the instruction.
Plaintiff’s second point is that the trial court erred in refusing plaintiff’s offered Instruction A, as follows:
“The driver of a motor vehicle is charged with notice that the pedestrian might vary slightly from his course or that he might be taken unawares by the discovery of the motor vehicle in close proximity to him and involuntarily place himself in front of the vehicle, and, accordingly, in passing a pedestrian, must not drive so close that a slight deviation by the pedestrian would cause an accident, but must allow a sufficient margin of safety to allow for such deviations by the pedestrian.”
Instruction A is simply an abstract statement of law requiring no finding by the jury. “Such instructions tend to mislead and confuse the jury and are properly refused.” Chism v. Cowan, 425 S.W.2d 942 (Mo.1967). They are “as objectionable since the adoption of MAI as they were prior to that time. * * * Indeed, having the purposes of MAI in mind, it would seem that they are even more objec
Judgment affirmed.
