MATTIE A. CONLEY, Aрpellant, v. CROWN COACH COMPANY, a Corporation.
Division One, Supreme Court of Missouri
February 26, 1942
159 S. W. (2d) 281 | 1243
About 6 p. m. on July 8, 1939, plaintiff was driving her automobile south on U. S. Highway No. 71, neаr Peculiar, Missouri. Charles W. Prettyman was driving his automobile south on the same highway in front of plaintiff‘s automobile. J. F. Calloway was driving an open stake bed Chevrolet truck north on the same highway. Defendant‘s bus was being operated north on the same highway, behind the Calloway truck. The highway was straight, level and paved with concrete. The pavement was 18 feet wide with a black mark along the center line. As the two vehicles traveling south approached the twо traveling north, the driver of the bus pulled out to pass the truck ahead of him. When he saw the Prettyman car approaching from the north and some 300 feet away, he immediately pulled back into line on his own side of the highway. Mr. Prettyman, upon seeing the bus pull out, put on his brakes and slowed down. Plaintiff, driving behind Mr. Prettyman, was unable to stop without hitting the Prettyman car, and turned southeastwardly (to her left) and passed across the east side of the highway in front of the approaching truck and bus. Her automobile went across the east shoulder, across a ditch and into a
The petition charged defendant with (1) failure to exercise the highest degree of care in the operation of the bus in view of traffic and other conditions (
The contributory negligence charged against plaintiff in defendant‘s answer was (1) the operation of her automobile at a high and dangerous speed; (2) operation too close to the automobile ahead; (3) turning across the highway; (4) failure to apply her brakes at the proper time; and (5) the failure to use the highest degree of care in the operation and control of the automobile. The reply denied the new matter set up in the answer.
Appellant says “the fundamental issue is whether or not there is any substantial evidence to support the judgment rendered.” Appellant further contends that “the undisputed evidence shows defendant was guilty of negligencе;” that the record presents an issue of law and not of fact; and that this court should “reverse the judgment with directions,” determine defendant‘s liability as a matter of law and “direct the court below to merely determine the extent of plaintiff‘s damages, and enter a verdict for her.”
“In a case of this character, a verdict for defendant need not be supported by affirmative, substantial evidence tending to show that defendant was not guilty of negligencе, because the burden was not on defendant to acquit himself of the charge of negligence. The burden was on plaintiff to show, prima facie, that defendant was guilty of the negligence charged. The absence of such a showing would authorize a verdict for defendant.” Bloch v. Kinder, 338 Mo. 1099, 93 S. W. (2d) 932. Since the court found the issues for defendant, we consider the evidence most favorable to defendant. The evidence shows that Mr. Prettyman was traveling south at about 50-55 miles pеr hour. Plaintiff was driving immediately behind him and had been for 3 or 4 miles. She had attempted to go around him, but approaching traffic interfered. According to plaintiff, the distance between the two cars was about 35 feet. According to defendant‘s witness Prettyman, plaintiff was driving behind him, he “thought, much too close for safety.” He did not fix the distance between the cars. The truck, traveling in the opposite direction, was moving about 30 to 35 miles per hour. Defendant‘s bus came up behind the truck at 30 to 40 miles per hour and, when within 100 feet of the rear of the truck, turned to the left to pass the truck. When the
Plaintiff testified that she was traveling about 35 miles per hour; that the bus was about 40 feet behind the truck and higher than the truck; that when she saw the bus turn to her side of the road, she applied her foot brakes and tried to stop; that she applied her brakes when Mr. Prettyman applied his, but that she could not stop and was afraid of hitting the car in front of her. She thought it safer to take the ditch on the left hand side of the highway, and accordingly turned in that direction and missed the Prettyman automobile by five feet. All this time she had her brakes on. She crossed the east side of the highway at an angle, approximately 75 feet in front of the approaching truck and when the Prettyman car was yet 40 feet from the truck. Plaintiff‘s car left the slab, crossed an eight or nine foot shoulder and a ditch, tangled in a wire fence and broke off three or four fence posts.
Plaintiff tеstified that the defendant‘s bus crossed over entirely to plaintiff‘s side of the highway and approached the Prettyman automobile and plaintiff head-on; and that the Prettyman automobile gave no signal, but came to a complete stop in front of her. She further testified that at 35 miles per hour she could stop her automobile in two or three car-lengths, 25 to 30 feet.
No specific request was made under
Appellant does not complain of the detailed findings of fact as made by the court, nor of the court‘s refusal to adopt as its own the particular finding of facts offered by her, but appellant complains that there was no substantial evidence to support thе general finding for defendant, and that as a matter of law the finding should have been for plaintiff. There is, however, no contention that a case was made under the humanitarian doctrine.
Regardless of what was shown concerning the negligence of defendant or the causal connection between such negligence, if any, and plaintiff‘s injury, the evidence was sufficient to sustain a finding that plaintiff was guilty of negligence in the operation and control of her automobile, which directly contributed to her injury. Considered most favorably to defendant, an inference could be drawn that plaintiff operated her automobile at 50 to 55 miles per hour and within approximately 35 feet of the rear of the Prettyman automobile. If the plaintiff‘s testimony was true as to speed, distance to automobile ahead and as to distance required for stopping, she could have stopped without striking the Prettymаn automobile or turning aside, much less traveling such a long distance and striking the fence with the force indicated. Whether operating the automobile at the speed she did operate it and within the distance that she did operate in the rear of the Prettyman automobile was negligent was an issue properly submitted to the court. The evidence would also justify an inference that she negligently failed to control her automobile and timely apрly the brakes. The credibility of the witnesses was a matter for the court. In view of the movements of plaintiff‘s automobile, the court was not required to believe plaintiff‘s evidence as to the speed of her automobile or her prompt application of the brakes. If plaintiff was guilty of any negligence as charged which directly contributed to produce the injuries and damages complained of, she was not entitled to recover. Thе evidence was ample to justify such an inference.
The court did not, in its finding of facts and conclusions of law, indicate the theory upon which it found for defendant, but, since there was evidence sufficient to sustain a finding of contributory negligence on the part of plaintiff, it may not be said that there was no substantial evidence to support the finding for defendant even on this affirmative
Appellant‘s theory that the undisputed evidence shows defendant was guilty of negligence is based on the fact that at least a part of the front end of the bus crossed the black line and in front of approaching traffic. Appellant says “the undisputed facts in the case show that the bus pulled out into the highway, into the traffic lane of approaching traffic, in violation of subsеction (e) of
Appellant assigns error on the court‘s action in giving the following conclusions of law: (1) “. . . the law exacts of all drivers who are being preceded on highway by a motor vehicle to remain at such a distance behind said motor vehicle and keep his own motor vehicle under such control as to avoid striking said preceding vehicle if it slackens its speed or comes to a stop;” . . . (2) “. . . unless the evidence of plaintiff shows that plaintiff‘s negligence caused or contributed to the injury and damages complained of the burden of making such proof was upon defendant when plaintiff‘s negligence was relied upon to defeat recovery;” (3) “the plaintiff, under the law, сannot excuse any act as being done under sudden emergency if plaintiff‘s acts presented the emergency;” and (4) “the court finds that the evidence presents a question of fact which must be determined by trier of facts, . . .” The court designated these statements, and others, as “Conclusions of law applicable to facts.” Most of them do not appear to be conclusions which, under the facts found, are required by law, nor do they appеar to be holdings concerning the legal effect of facts found. See, Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S. W. (2d) 909, 913; 64 C. J. 1236, Sec. 1080.
It is contended that conclusions 1 and 3 are not supported by any evidence because there is no evidence and no reasonable inferences deductible from the evidence that plaintiff was guilty of any act creating, causing or contributing to the sudden emergency with which she was confronted. It is contended that conclusion 2 is merely an abstract statement оf law, unrelated to any fact in the case, and that there is no evidence of plaintiff or defendant from which an inference can be
What we have held, supra, in effect disposes of these assignments. In addition it may be said that the evidence presented issues of fact (1) as to whether the bus went fully over to the left side of the highway and continued head-on toward Prettyman and plaintiff or whether the driver merely nosed partly out in order to determine if the way was clear and turned back immediately and (2) as to whether the Prettyman car immediately stopped or merely slowed down from 50 or 55 miles per hоur to 30 or 40 miles per hour and then proceeded. We think that different inferences could be drawn as to the speed of plaintiff‘s automobile and as to how close plaintiff was driving to the Prettyman car; also as to the relative positions of the several vehicles upon the highway, that is, the respective distances between the several vehicles when the bus nosed out to the left side of the highway. There were other conflicts in the evidence and these conflicts were for the trier of facts. Liability could not rest upon the fact of crossing the black line independent of other conditions existing at the time. Whether the act of the bus driver was a failure to exercise the highest degree of care under the facts or was a violation of the statute, supra, depends upon the conclusion reached with reference to disputed issues of fact. We have held, supra, that there was evidence from which an inference could be drawn that plaintiff was guilty of contributory negligence directly contributing to her injury and the damage to her automobile, and it follows that the statement, with reference to burden of proof in such case, was not unrelated to any fact or issue in the case. Since it is clear that the reasons assigned for the several conclusions being erroneous are without merit, it is unnecessary to consider the conclusions themselves.
There is another answer to appellant‘s contentions. We have seen that neither party made any specific request under the statute (
Error is assigned on the court‘s refusal “to give plaintiff‘s requested conclusions of law numbered 1, 2, 3, 4, 5, and 6.” Appellant has separately briefed the refusal of the several numbered paragraphs. The only conclusion of law requested by appellant was the unnumbered paragraph, mentioned supra, which immediately followed paragraph 6, the refusal of it is not assigned as error. The other paragraphs contained mere statements of law. They were not individual requests for declarations of law, and apparently were drawn with reference to the proposed finding of facts as submitted by plaintiff and not with reference to the facts to be found by the court.
Paragraph 1, states the content of
Appellant‘s argument is to the effect that the content of said statutes was properly set out in paragraphs 1 and 2; that defendant‘s driver violated the statutes mentioned and was guilty of negligence per se; that paragraph 4 “correctly stated the law with relation to the conduct of a person confronted with a sudden emergency;” that subdivision 5 and 6 of the request were “a correct statement of the method of assessing such damаges;” and that “the facts being undisputed, the court was required to find for plaintiff.”
Section 1103, supra, provides that “upon the trial of a question of fact by the court, it shall not be necessary for the court to state its
In a case where a jury is waived and the issues of fact are submitted to the court, sitting as a jury, and where no request is made for findings of fact and conclusions of law under the statute, supra, the theory of law by which the court is governed in reaching its decision may be determined by the presentation to the court of declarations of law, which are analagous to instructions given to the jury and subject to review by appellate courts in like manner and with like effect. Butler County v. Boatmen‘s Bank, 143 Mo. 13, 23, 44 S. W. 1047. It is not reversible error for the court to give declarations of law and make a finding of facts. Swanson, Inc. v. Central Surety Co., 343 Mo. 350, 121 S. W. (2d) 783, 787(6). When no request is made under
We think it is clear that the six so-called “conclusions of law” requested by appellant could not be considered proper requests for declarations of law, which tended to show upon what theory of law or fact the court found for defendant. Appellant could not be injured by thе court‘s refusal of paragraphs 5 and 6 on the measure of damages because the general finding was for defendant. Paragraphs 1 and 2 were mere abstract statements of law. The other two paragraphs, 3 and 4, even if considered as declarations of law, were erroneous as assuming matters in dispute. Seehorn v. American National Bank, 148 Mo. 256, 262, 265, 49 S. W. 886; Gundlach v. Beck, 146 Mo. App. 201, 208, 123 S. W. 962; John Schoen Plumbing Co. v. Hugunin, 156 Mo. App. 68, 74, 135 S. W. 967. The court did not err in rejecting the so-called conclusions of law.
The judgment is affirmed. Hyde and Bradley, CC., concur.
PER CURIAM:—The foregoing opinion by Dalton, C., is adopted as the opinion of the court. All the judges concur.