*1 188 further, disputed
sents the issue. It will noted be it is not a question highway. coming suddenly fact as to the mule explicit, The instruction we could have been more but do not think way Objections misled this instruction. give are made the refusal of the court to instructions certain given fully covering case. instructions were It is also insisted vеrdict is excessive. We have referred plaintiff’s injuries and, in addition above, him personally, damaged $600, automobile was to the extent Having bills. per- $150 out about for doctor suffered injuries, do think warranted, manent we we be under disturbing judgment facts the verdict ground Finding lower court on excessive. rеcord, Danes, reversible error in the affirmed. P. J., Becker, J., concur. Sanitary Respondent, Manu Bopp, Jr., v. Standard
Theodore Appellant.* facturing Corporation, Company, Opinion Appeals. St. Louis Court of filed November *2 4CJ, 3CJ, 855, 34; Error, p. Appeal Juris-Cyc. n. *Corpus References: 17; p. 98; 1282, p. p. 1268, 43; Vehicles, 42CJ, p. 919, n. n. n. Motor 29Cyc, p. 497, 8; Negligence, n. n. appellant. E. L. Gardner A. respondent. Roester, Jr. for Ileege and G. F. Julian
George, damages for to recover SUTTON, C. ‘This is an action by defendant’s being by plaintiff struck suffered as the result ,3, on November happened two-ton automobile track. The accident avenue vicinity Lockwood 1925, in 'intersection of Missouri, Groves, city road, public of Webstietr Jackson streets runs north road Lockwood avenue east and west. nuns south, whére Lockwood avenue from south, and comes into n Railways United tracks of the stoрs. east and westbound in such along Company laid south side of Lockwood are north side traffic on the permit manner as to vehicular cars ran street car tracks. "Westbound is, north of the street track. The south cars on the track, on north and eastbound traffic is made of portion to vehicular of Lockwood avenue devoted is no twenty-five wide. There tarvia, eighteen feet A vacant avenue. north side of Lockwood curb sidewalk *3 Lockwood, adjoins north. lot the accident, day the According on the superintendent at the carpenter and plaintiff, was a foreman who ¡his avenue, vicinity of Lockwood time, left the scene of work road, where the street Jackson proceeded and to the intersection of discharge Plain passengers. customarily stop on and cars to take Lockwood Avenue north side of tiff then stood for while on the street car. As the street waiting passage on a to take westbound Lock proceeded south across approached intersection he car the north of the westbound point avenue to a four or five feet wood twenty- сar was then about approaching car street street track. The approach road, and the defendant’s five feet east feet, away. seventy-five of about ing from the west was a distance intending passengers regular place where Plaintiff arrived1 at feet stаnd, four or five from to board westbound street cars street car. The track, approaching and westbound waited passenger, him a and when slowing was down receive as street car away him had almost eight from and come it was from to ten feet approaching stop, tо a he looked and saw west defendant’s.track per It con speed twenty miles hour. eighteen at a and between eighteen him, and when it was tinued to come toward about by twenty-five believing hit the track him, feet from he would be stayed was, turned and ran back to the north side he where hе he back, just plaintiff turned and started to ran after swerving to the left swerved to the left and continued .truck gutter lot and struck until it ran across the the vacant north into gutter. plaintiff, point feet north of the After at a about five twenty-five striking about feet before the track ran plaintiff lying about five stopped. stopped, was When the track seriously permanently in gutter. feet north of He jured.
Í9Í produced by he truck, The driver of the testified that portion driving east side of .the the truck on the south traffic; first saw street devoted to vehicular that he when twenty-five him; he was feet that he slоwed down distant per hour, apply did truck to about fifteen miles plaintiff; brakes until he was about four or feet from five plaintiff, plaintiff when the truck was or five feet from the sud- four denly street; whirled and ran back north side of the back, applied when brakes and whirled to run gutter swerved truck to and ran it the left across the into the street; plain- lot north stopped, vacant that when the truck tiff lying by rear wheel. City
Section of Ordinance No. 2889 of Webster Groves is as follows: operation right-
“All kept vehicles when shall be as close to the highway hand practicable.” side as jury.
The сause was tried to a trial in a resulted dollars, favor of for five thousand appeals. assigns giving Defendant reversible error of the follow- ing plaintiff: instruction at the instance of the
“The court City instructs the ordinance of the Webster Groves force and effect at the time of the accident question propel it was unlawful to move an or1 automobile corporate City limits of the of Webster in a Groves manner not as right-hand close to highway side of the as practicable, and you find and believe from through the evidence that the defendant, and servant, operating chauffeur an automobile *4 on Lockwood eastwardly, approaching the intersection of road, on November, 1925, the 3rd of and the automobile of the wdth plaintiff, you find, defendant collided and struck if so injured you plaintiff, and if at said find, intersection of said streets, striking you аnd at plaintiff, the time of the of if believe plaintiff by automobile, was struck said said being automobile was run operated by through and its chauffeur at a place on right- said Lockwood aVenue which as close to the hand side of the said Lockwood avenue as practiсable, then the running operating and automobile, of said which was not as close right-hand avenue, side of the said Lockwood in the direc tion in which said negligence. automobile was going, And if you find and negligence believe from that the evidence contributed to plaintiff’s injuries, any, you сause if further find ordinary plaintiff exercising believe that care for his own safety, your then plaintiff.” verdict for must be by against this isi forth set complaint matte
The as follows: counsel, defendant’s instruction is erroneous that contends “Defendant plaintiff 'they if be- to find for
reason that it authorized ‘dirеctly predicated therein that the facts evidence lieved from the quoted injuries.’ words cause they if found the facts jury that not tell the the instruction do by injuries complained plaintiff of caused the stated therein they found from that if but told plaintiff, find for negligence directly contributed to ‘thаt such the evidence that you further find and believe any, if injuries, ordinary safety, his own then exercising care for plaintiff was this instruction your plaintiff.’ Under must be for find, did that found, and doubtless jury might have well injured contributory negligence, but that he was guilty truck evidence concurring negligence of the driver by the by pеtition or shown not stated unknown cause some reason that This the obvious this is error. Clearly evidence. in- in this case shows evidence the uncontradicted negligence of driver of the juries either were the result suddenly whirling negligence in plaintiff’s own truck or oncoming joint truck, or the immediately path the, jury would authorized situation the be negligence both. In this only negligence part on tihei in the event plaihtiff to find for injuries complained of caused the driver of the any, nowise contrib- negligence, plaintiff, and that negligence guilty injuries. uted to cause such injuries, quite plainly plaintiff his own to cause which contributed any, words, if the In other was not entitled to recover. with, ‘directly contributed’ merely of defendant of, then was not injuries complained cause the entitled to recover.” of this instruc- jury, on account can
We see reason by the evidence gone the facts as shown tion, should outside with, that contributed in this find some cause ease to instruction, to cause the act of the defendant them do instruction does not commission plaintiff’s injury. The suggest they predicate liabil- Certainly it does not direct or so. but it ity the facts directs unknown causе outside hypothe- liability solely predicate them to suppose jury had concluded that But sized in the instruction. *5 to find a cause wihicli con- go facts of the case must outside the in- in the hypothesized act of specific with the tributed liable, this defendant how eoidd struction, the order tо hold have Rather it would been defendant? have been harmful imposed upon thus jury would have the harmful to for duty supplying of a the fact not shown the themselves every practically as in liability. and not to In this essential personal injury co-operation case; required it concurrence the plain- bring a acts, events, agencies, of of to about the number required jury If to find as an tiff’s had injury. the instruction the that liability part of of the essential element on the solely specific instruction negligence .hypothesized of the act clearly erroneous, it have рlaintiff’s injury, caused the been unquestionably put and would have the out of court. It in- in the negligence hypothesized law specific the tlhat the act directly injury, plaintiff’s struction contributed to cause ordinary care, that no plaintiff himself was in exercise of injury, cause his negligent part dirеctly to act on his contributed should be recover, was we no reason entitled to see may jury correctly jury. tlhe held error to declare the law to truck driver in thought have the act of defendant’s that twenty per hour, apply- without speed rate of miles rapid at having con- slowing down, or it under ing the brakes and negligent a act approached on the trol, as it they may thought or that it contributing plaintiff’s injury, have to however, they to negligent Certainly, were entitled a act. not negligent, directly negligent or not act, that conclude whether negligent injury. act, whether contributed to cause injury,' directly then to negligent, or not contributed hypothesized instruction did negligent of defendant act injury. only cause, plaintiff’s solely cause, though it act of go acquit -for this the defendant Shall act another directly injury, to because contributed otherwise, cause the negligent or also contributed to was li- that defendant injury? jury And could be advised how by telling except them, negligence hypothesized, act able for the act liable does, this the defendant as injury and the to negligence directly contributed ordinary too, So, care? plaintiff himsеlf was in the exercise of that the act find under the evidence certainly entitled , . running back to turning about and suddenly injury. But the north of the street contributed side or was say this act was province it was whether might under the evidence They a found negligent act. have a it was they might found negligent act, not a highly They' evidently found it prudent act. negli- for acquit responsibility go act. Shall the defendant plaintiff V non- gent instruction because act plain- Clearly injury? to his act contributed n of the defendant negligent tiff was entitled to recover *6 194 contributing though to his injury, cause non-negli- his own
gent also aсt contributed injury. to cause his li- defendant The plaintiff’s able injury hypothesized act plaintiff’s regardless to injury, contributed what defendant, negligent other acts of the otherwise, or non- may acts of the plaintiff, have entered into the chain of forming events negligent- causal conneсtion between the injury. Nor any do we see reason jury concluded, should have instruction, on account of this ¡was negligence directly if its liable contributed injury. with the to his negligence The instruc- express jury they tion in terms told find must as an es- sential to a verdict for in himself was of'ordinary exercise this did nоt with sufficient care. clear- simplicity jury ness and advise the as to the effect of own they had the defendant’s instruction enlight- to further .them,.in en told that which if the- “directly injury, his cause” he was entitled n way suggested No itself, recover. has suggested none has been by defendant, as to how the- law the case could have been more clearly than was defin'ed to defined these instructions. thought But if defendant that the needed further instructions clarify given, liberty the law as defined in instructions it was at n to- request such further instructions. This the defendant did not position complain 'do, nothing it is in here. There was рláintiff’s instruction which would have conflicted in in'the law, way any proper declaration of the which with the defendant might requested. in view support of its relies
Defendant decisions of our following v. Supreme Co., Court in the cases: Hof St. Louis Transit Krehmeyer 445, 1166; Co., 213 1-11 v. St. Mo. S. W. Louis Transit 220 W. Moon 639, 78, 120 S. v. St. Louis Transit 247 Co., Mo. 227, 152 S. 303. In Hof W. and Moon cases instructions Mo. similar to present plaintiff’s instruction in the case were held er in first of these cases decided division No. 1 roneous. The Krehmeyer case, in The in which the other division No. an in present in the instruction case was struction similar-to under majority judges en banс. But review, decided did not tffe in holding Only that case erroneous. concur the instruction holding. judges judges Three of three of the concurred holding concur in in toto. The declined to dissented other the in only, in the result erroneous, distinctly but concurred struction grounds. ón other result placing conсurrence latest, - upon an Court ruling Supreme, instruction like our here, case of Evans found v. -one under review Kins-
195 meyer, 1036, S. W. decided the court division No. wherein said: correctly “This instruction declared law. ... phrase Tlhe ‘diitectly to,’ contributed as used in the instruction, cannot be rea-
sonably construed as synonymous other than proximate with cause, by which vve mean as operated produce a particular consequence without independent intervention of an cause,-in the absence of which the have been inflicted. . . . Thus construed, phraseology .of
vague misleading, and, having correctly declared the law under given,” it should have been
Manifestly controlling the Evans'case here.
Tlhe Commissioner recommends judgment of -the circuit court be affirmed. foregoing opinion- of Sutton, adopt
PER CURIAM: The isC., opinion ed as court. of the circuit court is JJ., accordingly Danes, J., affirmed. P. and Becker and Nipper, concur.
City Harry Respondent.* Appellant, Sharp, of Mexico, v. Opinion Appeals. Louis Court of filed
St. December