Aсtion for damages for personal injuries sustained when plaintiff was struck by defendant’s automobile. Plaintiff had a verdict for $20,000 and defendant has appealed from the judgment entered.
Defendant concedes plaintiff made a sub-•missible case on failure to exercise the 'highest degree of care to keep a lookout, which was the only ground of negligence submitted. Plaintiff was struck by defendant’s car about 5:15 A.M., June 24, 1958, a dark, rainy morning, at the intersection ■of Delmar and Melville in University City, where she was waiting to board an ap■proaching streetcar. The principal fact issues were whether plaintiff was struck while standing in the safety zone in the street, when defendant passed the streetcar and ran through the safety zone ahead ■of it, as plaintiff and the streetcar motorman testified; or whether defendant was •driving behind the streetcar when plaintiff •came from the sidewalk and ran into the side of defendant’s right front fender in at-itempting to get across ahead of defendant’s automobile as defendant testified. Defendant’s own testimony at least left in doubt his exercise of the highest degree оf care in keeping a lookout.
Defendant alleges error in giving Instructions 1, 5 and 6. Instruction 1, submitting plaintiff’s theory of recovery, was as follows:
“The Court instructs the jury that if you find and believe from the evidence that on the occasion in question, the plaintiff, Lena Goldstein, was standing inside the safety zone located on Delmar Avenue at the intersection with Melville Avenue, in University City, Missоuri, waiting for an eastbound Delmar street car; and if you further find and believe from the evidence that thereafter the defendant was driving an automobile eastwardly on Delmar Avenue near said safety zone and failed to keep and maintain a careful watch and lookout ahead and laterally to observe plaintiff standing therein, if you so find; and if you further find and believe from the evidence that in so failing, if you so find, the defendant did not exercise the highest degree of care and was negligent; and if you further find and believe from the evidence that as a direct result of such negligence, if you find he was negligent, the defendant drove said automobile into said safety zone and struck the plaintiff and she was directly injured thereby, then your verdict should be in favor of the plaintiff and against the defendant, Erwin Fendelman.”
Defendant says this instruction “imposed an absolute duty upon defendant to keep a lookout and observe plaintiff standing in the safety zone,” when “the duty to keep a lookout is simply one of exercising the highest degree of care to keep a lookout and to see and know оnly what could be seen and known by the exercise of the highest degree of care.” Defendant further says “the error in imposing this absolute duty is not cured by the subsequent requirement that the jury find that by failing to keep this lookout (absolute and with
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out qualification), the defendant did not exercise the highest degree of care and was negligent, * * * for the obvious reason that the jury was permitted to and would necessarily find that defendant was negligent if he failed to comply with the absolute duty imposed upon him by the instruction”; citing Johnson v. Presley, Mo.,
Instruction 5 was as follows: “The Court instructs the jury that the burden is upon the defendant to prove that plaintiff was guilty of contributory negligence by the preponderance or greater weight of the credible evidence and unless he has done so your verdict must be in favor of the plaintiff on said issue.”
Defendant says as to this instruction: “The average juror could well have understood the instruction to mean that unless defendant sustained his burden of proving plaintiff guilty of contributory negligence,, then a verdict in favor of plaintiff was. mandatory.” The instruction would have-been clearer and better if it had used the word “finding” instead of the word “verdict”. (See Wheeler v. Bowles,
*665 Instruction 6 defining the terms "negligent,” and “negligence” and “highest degree of care,” commenced as follows: "The Court instructs the jury that it is the •duty of every operator of an automobile upon the public streets and highways of this State to exercise the highest degree of ■care so as not to endanger the life or limb of any person.” Defendant says this was an abstract statement of law wholly unrelated to any verdict-directing instruction, was prejudicially misleading and allowed the jury to speculаte on other grounds of negligence not submitted. However, this was not a verdict-directing instruction and the trial court in passing on the motion for new trial did not find it to be misleading. Therefore, in view of the simple and clear fact issues in this case hereinabove noted, we hold it was not prejudicially erroneous.
Defendant also contends that the verdict was grossly excessive; that this excessiveness resulted from prejudicial questions, statements and argument of plaintiff’s counsel and therefore cannot be cured by remittitur; and that the court erred in permitting these statements and arguments and in refusing to declare a mistrial. However, for the reasons hereinafter stated, we do not find the verdict excessive and we consider that fact in determining the prejudicial effect of the matters raised. At the voir dire, plaintiff’s counsel asked several members of the panel such questions as: “Is there anything that would force you * * * not to fully compensate this woman because it would mean returning a verdict in a very large sum of money?” and “Would you feel that we can’t compensate this lady fully because if we do we will come out with a great big verdict?” and “If you found in her favor and her injuries and damages add up to a big sum, you wouldn’t be afraid to award her a big sum?” and “Would you refuse to give her the full amount that she was entitled to because it would mean returning a verdict in a big sum of money?” These questions were improper on voir dire because they were argumentative, implying an obligation to return a large verdict for plaintiff before any evidence had been heard. However, no obj ection was made to any of them until after one panel member was removed by the court, when in answer to the Judge’s questions, after plaintiff’s counsel’s interrogation, she indicated there would be a limit on the amount to which she would agree even if she “felt that she was entitled to it.” Defendant did not object to that action but thereafter did object to a question (similar to the previous ones) “because it implies that this lady’s injuries are of such a character that entitles her to a large amount of money.” The court sustained that objection. Plaintiff’s counsel later asked another panel member a somewhat similar question in a different form and that objection was also sustained, whereupon defendant’s counsel asked that a mistrial be declared. The court overruled that request and plaintiff’s counsel said he would not ask that question any more and did not do so. (Similar questions were discussed in Moore v. Ready Mixed-Concrete Co., Mo.Sup.,
In his opening statement, plaintiff’s counsel statеd her age as 61 years and said “she is a widow lady.” On objection, the court reserved ruling and plaintiff's counsel continued, “Since the death of her husband, ten years ago, she has been duly employed and earned her own living.” Objection to the reference to her husband’s death was overruled. In his argument to the jury, plaintiff’s counsel, referring to the motorman’s testimony, said: “He сan certainly not hope for any reward from Mrs. Goldstein; that lady hasn’t got a dime.” Objection to this was sustained and no further action requested. Objections were
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also made and sustained to plaintiff’s counsel’s statements, “She has to support herself” and “Do you think she can live on Social Security when she is 65.” No further action was requested after these rulings. Thus nothing is presеrved for our review except the statements that plaintiff’s husband had died and she was a widow. Defendant cites cases holding it is improper to make statements about plaintiff’s children or relatives, such as Daniels v. Banning, Mo.Sup.,
Defendant also complains of plaintiff’s counsel’s use, in connection'with his closing argument, of a large cardboard on which he wrote the amounts he asked the jury to award plaintiff for each of 14 claimed items of damages, totalling $77,735, Two of these items were mеdical and hospital bills supported by evidence ($2,200) and two were for loss of earnings, present and future, for which there was a basis for estimate. (Plaintiff was earning $50 per week.) The others were claims for definite amounts for specific injuries and results therefrom such as humiliation, suffering and pain; and obviously there was duplication in some of these items. However, the jury did not accept these claims because the verdict was for only about one-fourth of their total. Considering as we must the evidence most favorable to plaintiff, we find that plaintiff did sustain serious permanent injuries which prevent her from continuing her employment as a kosher cook at the Jewish Hospital. (Her work started at 5:30 A.M., continued-for nine hours, requiring her tо be on her feet, handling large pots and pans.) Plaintiff had multiple abrasions and contusions on both legs which had healed and deep cut into the muscles in the perineum which was sutured but later abcessed and had to be opened and drained before it healed. In her right leg, she had a fracture of the lower end of the femur and a piece of bone was brоken off the tibia at the knee joint and she also had torn knee ligaments in which there was an inch-long calcium deposit. She cannot bend her knee more than 90 degrees and must walk with a cane. Her doctor said that she was past the healing stage, that her knee condition would not improve, and that it was a permanent injury. (Her knee remains swollen and painful; there is atrophy of her leg above the knee and demineralization.) Plaintiff also sustained a lower back strain and a fracture of the coccyx, according to her doctor, which created a condition called coccydynia. There was separation and abnormal mobility of the coccyx and plaintiff suffered and continues to suffer muсh pain from this condition. Treatment to relieve this pain by injecting anesthetics was not successful. Her doctor believed it could be *667 relieved by an operation to remove the coccyx which he thought would be successful if there were no side effects from it. Plaintiff also had aggravation of a preexisting condition of arthritis in her knee and spine.
Plaintiff was in the hospital from June 24, 1958, until August 12, 1958, and kept the cast on her leg from toes to hip until September 2, 1958. Thereafter, she continued to come to the hospital for out-patient physiotherapy. Defendant’s doctor, who examined plaintiff before the trial, called her leg bone fractures chip fractures and said, “She has not had sufficient time to get the maximum improvement.” However, he said, “I wouldn’t say she will make a complete recovery.” He also found the coccyx condition and agreed that it was and continued to be painful. Considering the amount of plaintiff’s medical and hospital expense, the probably necessary operation to relieve the coccyx condition, the permanently disabling effect of plaintiff’s injuries, and loss of earnings prior to the trial and for a reasonable future period, our conclusion is that we cannot hold this verdict excessive. See Bone v. General Motors Corp., Mo.Sup.,
While we agree with Faught v. Washam, Mo.Sup.,
The judgment is affirmed.