*1 Cоrpora Conley, Appellant, Company, Mattie A. Coach Crown (2d) 281. S. W. tion. 159 February One, Division
Kelsey Henry appellant. Norman Warlen *2 Coyne Boy and Emerson FouVke for respondent. *3 damages alleged have been
DALTON, C.—-Action for general- of defendant. Defendant denied occasioned waived, juryA ly contributory negligence. pleaded Plain- judgment for defendant. tried to court and entered cause amount sued appealed. jurisdiction We have because the tiff has $7,500. exceeds p. driving her July 8, on About m. W. Peculiar, near Missouri. Charles Highway south U. S. No. highway driving on the same аutomobile south his *4 open an Calloway driving was J. F. of automobile. front highway. Defendant’s truck north on the same bed Chevrolet stake highway, behind the Callo- being on the operated north same bus was concrete. and highway straight, paved level way was with truck. The along center mark a black 18 feet wide with pavement The was the two travel- traveling approached south the two line. As vehicles of ahead pass to pulled truck north, of thе bus out ing the driver and from north Prettyman approaching car When he saw him. own on his into immediately back line pulled he away, 300 feet some out, seeing pull the bus Prettyman, upon highway. of the Mr. side Mr. driving Plaintiff, behind down. and slowed put on his brakes car, and hitting the stop without unable to Prettyman, was side the east -left) passed across and southeastwardly her (to turned Her and bus. approaching .truck highway -in front of of the a into and a ditch across shoulder, the east across went automobile fence the east resulting on side of the injury with her to damage and to her automobile. charged
The petition defendant with (1) failure to exercise the highest degree of care operation in the the bus view traffic and (Sec. 1939, other 8383, Ann., R. Mo. 7775, p. .conditions S. Stat. Sec. 5197); negligent (2) way attempt pass to was not when ahead free of approaching (Sec. Ann., traffic Mo. Stat. R. 7777, p. 5213); negligent Sec. (3) down, stop and failure to slow swerve' injuring plaintiff and avoid after defendant saw or highest degree exercise of the care plaintiff have seen should her in a position peril. contributory negligence charged
The against plaintiff in defend- (1) high ant’s operation answer was automobile at a dangerous ahead; speed; (2) too operation close the automobile (3) turning (4) at highway; apply across the her brakes failure to highest degree the proper time; (5) failure to use the care in The re- operation and control of the automobile. ply the new up denied matter answer. set says
Appellant “the or not there is fundamental issue is whether Ap- support judgment rendered.” substantial evidence to de- pellant further that “the evidence shows undisputed contends- issue guilty presents an negligence;” fendant was that the record judg- fact; of law not of this “reverse and thаt court should liability matter directions,” ment with determine defendant’s merely extent determine the and “direct the court below plaintiff’s damages, her.” enter a verdict for not be
“In need character, this verdict for defendant ease of tending to show supported affirmative, evidence substantial was not the burden guilty negligence, not because defendant was The charge negligence. acquit on defendant himself facie, show, prima that dеfendant burden was showing of such a negligence charged. absence The ’’ Kinder, 338 Bloch would authorize verdict for defendant. for de- (2d) found the issues court 93 S. W. Since to defendant. fendant, most favorable we consider the evidence 50-55 traveling at about Prettyman was south evidence Mr. shows him immediately driving behind per Plaintiff was miles hour. him, go but- around attempted had She had been for or miles. distance According plaintiff, t-o traffic approaching intеrferred. According to defendant’s 35 feet. the two ears was about between him, “thought, he Prettyman, plaintiff driving behind witness distance between safety.” fix the He did not much too close for moving direction, truck, traveling opposite in the cars. The up behind came Defendant’s *5 miles hour. per about 30 to 35 feet 100 and, within hour when 30 40 miles per the truck at the When truck. pass the truck, the left to rear turned to the of the 1248 gotten
driver had the front way end of the bus out about half over the black line and before 20 he within feet truck, of the rear the he Prettyman saw the approaching automobile in opposite the direction and some away. 300 feet immediately He down, slowed turned back right to the highway hand side of the in behind the The truck. only swung bus out and back'in “a second so” or and was on left side highway only of the for a fraction Before second. turning out, the truck obstructed the view and the driver could highway seе down the on the left side of truck for a distance of only 30 to feet 40 ahead of the Prettyman truck. When Mr. saw the 15Q bus come into view he was 100 or ap- feet from the front proaching truck, yet Pretty- the bus was behind the Mr. truck. automatically man put his foot his on brakes and to 35 or slowed per hour. He miles then stop, released brakes and did not that is, not him, until after both the truck passed and bus had met and and the had crossed traffic in lane front of the truck and bus wаs in fence highway. at the east of the side truck plaintiff’s driver said automobile shot across the road at an angle in front of him 30 at to 35 per miles hour and he slowed that permit pass his truck to it Prettyman in safely front him. Mr. signal light had a on rear his automobile red when showed the foot brakes were applied.
Plaintiff hour; traveling per testified that she was about miles higher bus was about feet behind the truck and than truck; that when road, saw she the bus turn to her side of the she applied her stop; foot brakes and applied tried to that she brakes Prettyman applied his, when Mr. stop but that could not and was she hitting afraid thought in car front of her. She safer take accordingly the ditch left hand of the side Prettyman turned direction missed the automobile- feet. five All this time she had her brakes She crossed east on. highway angle, side approximately at an feet in front of Prettyman approaching yet truck and when the car from feet slab, eight the truck. Plaintiff’s ear left an foot crossed or nine ditch, tangled shoulder and in a wire fence and off three or broks posts. four fence entirely
Plaintiff testified crossed over that the defendant’s bus Prettyman highway approached side of auto- gave plaintiff head-on; mobile and and that signal, stop in She further complete no but came to a front her. per stop at 35 her automobile testified that hour she сould miles car-lengths, two three to 30 feet. 1939, request No R. S. Mo. Stat. specific made under Sec. findings
Ann., specific p. Sec. for the to make court appel- all the evidence facts and conclusions of but at the close of facts, particular signed request lant submitted *6 consisting of 16 numbered paragraphs, signed and a request for what designated is law, consisting conclusions of 6 numbered paragraphs, final unnumbered paragraph that “applying the law to the case, facts in finding this the must plaintiff be for the herein, and against the requests defendant.” These were refused. The court, thereupon, of its own motion made" finding own its facts and con- law, clusions of the last conclusion of being that, law “applying the herein, to the facts found finding must be and is for defendant against plaintiff.” Appellant does not complain of the findings detailed as made of fact court, nor-of adopt the court’s refusal to its own particu as finding lar offered her, of facts but appellant complains that there no was substantial support general evidence to -finding for de fendant, that as a finding matter of law the should have been plaintiff. There is, however, no contention that a case was made under the humanitarian doctrine.
Regardless of concerning negligence what was shown defendant or the negligence, causal connеction if any, between such plaintiff’s injury, finding the evidence was sufficient sustain to plaintiff guilty negligence operation was in the and control automobile, directly of her which injury. contributed to her Con favorably sidered defendant, most to an inference could be drawn plaintiff operated her per automobile at to 55.miles hour and approximately within Prettyman 35 feet of the rear of the automobile. testimony If the plaintiff’s speed, was true distance as required ahead and as to distance for stopping, stopped she could have striking Prettyman turning aside,' without much automobile or traveling long striking less such a distance and the fence with the force Whether operating speed indicated. the automobile at she operate did it operate and within the distance that she did negligent rear of an properly automobile was was issue justify The an inference submitted to сourt. evidence would also timely negligently apply failed to control her that she automobile and credibility the witnesses a matter for the brakes. was plaintiff’s automobile, court. In view the movements of the court required speed not to believe evidence as was prompt application If her automobile or brakes. negligence charged as which guilty directly contributed
was damages of, injuries complained she was nоt en produce justify ample was such' an infer titled to recover. The evidence ence. finding not, of facts and conclusions of
The court did in its defendant, but, theory upon found for since there indicate the it contributory negligence sustain was evidence sufficient to said that there no plaintiff, not be part substantial finding for defendant even on this affirmative support evidence to ’ n guilty contributory negligence If plaintiff defense. she can- nеgligent not and it is immaterial whether defendant recover .' charged. ... theory Appellant’s undisputed evidence de shows fendant was óf is based on the fact that at least part of the front of the the black front end crossed line and in bus says undisputed “the approaching Appellant facts traffic. lane pulled that the out into the into the traffic case show *7 traffic, 7777, R. approaching (e) in violation of subsection of of Sec. ours.) liаbility (Italics Appellant question .that S. insists is 1929.”. Appellant’s questions the causal con overlooks of contention law.. any, legal negligence, and cause if and between defendant’s nection resulting plaintiff her the injury and automobile. It overlooks question plaintiff’s contributory negligence as suffi charged ciently by questions fact the evidence. It overlooks as to shown at the time speeds locations and of the automobiles relativе several black line. The that bus nosed fact the bus out over mere wholly line insufficient to to the turned left black was crossed liability as a of law. of defendant matter establish , assigns giving action in Appellant on the court’s error (1) n “. the law all following conclusions . . exacts of of law: by being highway a motor vehicle to re preceded who are drivers keep vehicle and his own main at such distance behind said motor striking precéding said motor vehicle under such control as to avoid stop,-” (2) . speed vehicle if it its or comes to . slackens neg plaintiff’s plaintiff . shows that “. . unless evidence damages complained ligence to the or contributed injury .caused making proof upon defendant when of the burden of such was recovery;” (3) “the up plaintiff’s op was relied defeat any being under act as done plaintiff, under the cannot excuse emergency;” and emergency plaintiff’s presented the sudden if acts fact question (4) presents “the court finds that-the evidence court facts, . trier of . must be determined “ ap statements, others, designated as1 Conclusions these ’’ which, be conclusions plicable appear of them do not facts. Most they appear to found, required by law, do are nor under the facts be l effect, See, Maltz -concerning lega found. holdings of facts 909, 913; 64 (2d) Jackoway-Katz Co., W. Cap 0 . 1236, Sеc. 108 J.C. supported 1 and 3 are not that conclusions It is contended inferences no reasonable no evidence and because there is evidence any act creat- plaintiff from the evidence that deductible (cid:127) with which -she emergency contributing ing, causing or sudden merely an abstract conclusion is was confronted. It is eontended.that is case, -and-that there to-any in the law, unrelated fact statement can be an infеrence from which plaintiff or no evidence of defendant any negligence guilty o'f wlp.ich caused or con- plaintiff drawn injuries. It is contended conclusion erroneous tributed to is in this case show that the undisputed pulled “the facts out because approaching traffic lane of into the traffic in highway, into viola: (e) of R. S. 1929.” See. tion of subsection disposes have.held,’supra, assignments. in.effect What we these that the presented sаid evidence In addition be issues of fact fully went whether the bus over to left (-1) as to side of the Prettyman plaintiff toward highway and continued head-on merely partly out in driver nosed order to whether the determine if way (2) and turned back immediately- was clear as whether and. to. immediately merely stopped or car slowed down from per hour per proceeded. 50 or 55 hour to or miles and then miles think that different inferences could be drawn as to speed We driving as to how close to the Prettyman car; positions also to the relative of the several vehicles is, respective upon distances between the several highway. when the bus nosed out to the left of -the vehicles side There in the evidence were other conflicts and these for the conflicts were Liability upon the fact crossing trier facts. could not rest existing independent black at the time. line othеr conditions Wheth- *8 highest er act of the driver was a to exerdise the degree failure supra, depends care or of the statute, of under facts was violation issues, disputed upon the conclusion reached with reference fact. to of held, an inference supra, We have that there was evidence from which contributory negligence plaintiff could drawn that be directly contributing injury damage automobile, her and the to her -to statement, proof with and it that the reference burden follows ease, any in in was not unrelated to fact or issue the case. Since such reasons, assigned being clear that the for the several is conclusions unnecessary merit, erroneous without it is are consider .con- clusions themselves. have appellant’s There another answer to We is contentions. under, specific request the statute party that neither made
seen findings Ann., 952, 1225) (Sec. 1103, 1939, p. Mo. Stat. Sec. for R. S. cer law,-and, although plaintiff did fact and conclusions of submit re findings law, which she specific and conclusions óf tain fact they The give quested adopt own, the court to and as its refused. were the record findings of law set out in conclusions as fact-and were for motion, appellant so. of the court’s and own concedes .motion by the Although nothing improper in such action there .is new trial. voluntary requested in the nature of court, findings being not are such .question by present no court, are not reviewable statements defendant. review, general finding, case for for this other than.as 1086; City Boyer 202 ex rel. Sullivan (Mo.), S. W. State Kansas v. 537, (2d) Co., 259, 66 W. Maryland Casualty 334 Mo. S. County v. 1252 Woolley App. 577, (2d) 1098; 93
538; Dorl, Mo. S. W. Lesan v. Advertising Castleman, 345, 352, Meri 597; Co. v. 177 W. S. Lowry Co., 41, App. 43, 267; dian v. 207 Mo. 229 S. Lbr. Co. Lbr. W. Crowell-Spencer (Mo. App.), 427; v. Hill Bank Lbr. Co. S. W. (Mo. Krieger App.), 209 967, 969; Catawissa v. S. W. v. Walters (Mo. App.), 481, follows, therefore, Rozier Inv. 253 W. 482. It Co. аssigned upon voluntary not the mere error bé statements by also; made the court on own motion. Al Phillips its See (Mo. App.), (2d) 1060, ford 90 S. W. assigned
Error give plaintiff’s is on the court’s refusal “to requested 1, 2, 3, 4, 5, conclusions law numbered 6.” Appellant o'f separately has briefed the refusal of the several numbered paragraphs. only by requested appellant conclusion of law the unnumbered paragraph, immediately supra, mentioned paragraph followed 6, assigned of it the refusal is not as error. The'other paragraphs con They tained mere statements of law. were not requests individual apparently were drawn with declarations reference to the finding proposed by plaintiff facts submitted and not with ref by erence to' the facts to be found court. 1,
Paragraph 8383, states the content R. S. Sec. with refer- driving ence care to be exercised in a motor vehicle and states plaintiff required comply defendant were therewith. Para- graph the content (e) states of subdivision Sec. R. S. required comply and that defendant was Paragraph therewith. “Violation, is part as follows: on the of the driver of the defendant’s ’’ motorbus, Sections 7775 (e), and 7777 negligence constitutes per se. It violation of both Paragraph assumed a statutes. general states accuracy rule with reference to the precision judgmеnt required emergency in an created another, includes attempting acts “in to avoid endangering the ’’ property or life limb persons then and there on the contributory did not constitute negligence. It assumed that acting under an emergency negligent created conduct of defendant and that her actions were for purpose above stated. *9 Paragraph 5 with the damages measure personal injuries. deals for Paragraph 6 deals with damage the measure of for the automobile. argument
Appellant’s is to the effect that the content of said stat- properly paragraphs utes was set in 2; out 1 and that defendant’s driver violated the statutes and mentioned per se; paragraph “correctly that 4 stated the law with relation' to the a person conduct of confronted with a sudden emergency;” subdivision 5 and 6 of request the were “a correct statеment of the assessing such'damages;” method of being and that facts un- “the disputed, the required court was plaintiff.” to find for 1103, supra, provides
Section “upon question the trial a by court, necessary fact it not shall be for the court to state its
1253 , finding, except generally, parties one request unless .of:the thereto excepting view of with the upon quesj decision court arising of law or in equity case, tions in which the , case court shall writing in separаtely state conclusions found of facts from the ’1 Although party may law. a in request conclusions such case .a finding law, of facts conclusions of under said and statute and save exceptions thereon, may it does not follow that such party assign error upon the adopt, court’s refusal to. receive as the con own .court’s- law, by party clusions of those tendered request with a connection finding a particular for state of fаcts. conclusions Separate only required request are the, of law when is made therefor under and a that the request adopt statute court those tendered such a not. is request. See, Lindburg Quinn (Mo. Arthur R. v. App.), S. 123 W. 215, (2d) 219(8). jury In case where a is waived and the issues of are sub fact court, sitting
mitted to the aas and where jury, request, no made is findings, for statute, fact and supra, conclusions under theory governed of law reaching which court is its de cision be determined to the court of presentation declara law, analagous given tions of which are jury to the instructions subject by appellate to review courts in like manner and with like County Bank, 13, effect. Butler v. 23, 143 Mo. 44 W. Boatmen’s S. declarations, 1047. is It error give court not reversible Surety Co., law and make a Swanson, facts. Inc. v. Central 350, 343 (2d) 783, 787(6). request Mo. 121 S. W. When is made no 1103, supra, party under Sec. on a pass desires :court question party’s duty in dispute, where the facts are it is such upon theory to submit declarations of law based of facts favorable See, Sollars, such party. App. Bank v. 190 Mo. Chaonia State 284, 263, 265; Oregon County, 514, 176 S. W. 320 v. Mo. Underwood 518, (2d) Glover, 571, 576; 8 597; W. Pat App. S. v. 68 Mo. Barnes 570, 572; terson K. Co., App. v. C. Ft. Smith M. 47 & R. Mo. Springfield Shackelford, App. 364, Grocer 65 Mo. Wh.ere Co. v. 366. done, case, may is look declara appellate proper this courts in a law, given theory refused, upon tions of to determine the 286, judgment Robertsоn, 118 Mo. See, was entered. Suddarth v. 293, 24 National 151, 153; Banking Republic W. v. S. Holland Co. Bank, 577, (2d) 815, hand where Mo. S. W. On the other waived, court, jury being at an action law is tried before the findings of fact asked, refused, given, or with no instructions no judgment will requested statute, or conclusions -of law under theory the law facts not be if reasonable disturbed there be Ry. upon which it can be Louis-San Francisco Co. v. sustained. St. 1034, Dillard, (2d) 1036; St. Louis Union 43 S. W. Mo. Davis, 434; Hill, W. Jordan v. Trust Co. v. 223 S. Mo. Co., Telephone Murphy Doniphan 72 W. 686; *10 1254 any matter for (2d) 616, preserve 147 review
Mo. S. W. To law, requests cor by requests declarations of must constitute Cape County In v. rect Harbison, Administrator, of law.' the case of Girardeau declarations 90, 93, 58 “The Mo. court said: cases Very which it is declarations of law are rare in admissible to frame court, disregard imperative which for in for the in Of the rules are case, given jury. questions’ In structions either that it afterwards be seen separated those of fact be so should by general finding was controlled.” class law” re
We think it is clear the six “conclusion's so-called by requests for de quested proper could appellant not be considered théory Of law or law,' upon wliat clarations of which tended to show injured Appellant not be fact the court found for defendant. could damages 6 on the court’s 5 and measure paragraphs refusal Paragraphs general because the defendant. was for] parаgraphs, were mere law. The other two abstract statements of were "erroneous and assuming even if considered as declarations Bank, National dispute. v. American matters Seehorn Beck, Mo. App. 262, 265, 886; 148 Mo. Gundlach v. S. W. Hugunin, 156 201, 208, 962; Plumbing 123 W. John Co. Schoen rejecting The court not err 68, 74, S. W. 967. did App. the so-called conclusions of law. CC., concur. judgment Hyde Bradley,
The" is affirmed. C.,'is adopted foregoing opinion PER CURIAM: The Dalton, opinion judges concur. as the of the court. All the