386 S.W.2d 9 | Mo. | 1964
Plaintiff Harry Austin Hewitt, a minor, by his natural guardian, Gerald Lester Hewitt, filed this suit against Dr. Edwin C. Masters and his wife, Bess Masters, to recover damages in the amount of $150,000 for personal injuries sustained when a car driven by Dr. Masters collided with the rear of a Ford car. A trial resulted in a verdict in favor of the defendants. A motion for new trial was overruled and plaintiff appealed.
(We shall refer to the parties as plaintiff and defendants throughout the opinion.)
On this appeal, plaintiff’s sole contention is that instruction No. 4, given by the trial court at defendants’ request, was erroneous for the reason that it imposed on plaintiff the exercise of the highest degree of care; further, that the instruction assumed facts which were in dispute.
The record discloses that there was a sharp conflict in the evidence with reference to a number of issues of fact, while many other facts were not in dispute. Those facts not in dispute were: On the afternoon of July 18, 1961, Gerald Lester Hewitt and his son, the plaintiff, left Malden, Missouri, where they lived, in a Dodge truck for the purpose of picking up a' Ford car which was stranded near Dutchtown on Highway 25. When they
The disputed issues were: Plaintiff’s evidence was that the truck and the towed Ford were stopped on the right shoulder of Highway 25 entirely off the pavement. Defendants’ evidence was that the truck and the Ford were stopped in the southbound lane on the pavement.
Plaintiff’s evidence was that the five lights on the rear of the truck and two lights on the rear of the Ford were burning. Defendants’ evidence was that no lights were burning on the truck or the Ford.
Plaintiff’s evidence was that the truck and Ford were stopped more than 300 feet south of the crest of the hill. Defendants’ evidence was that the vehicles were stopped not more than 120 feet south of the crest of the hill.
Defendants contended that the plaintiff was guilty of contributory negligence.
Instruction No. 4, of which plaintiff complains, reads as follows: “The Court instructs the jury that although you may find and believe from the evidence that one or both of the defendants was guilty of negligence as charged by plaintiff, yet, if you further find and believe from the evidence that the plaintiff was also guilty of negligence, in failing to exercise the highest degree of care in the operation of the said Ford car upon the highway, by reason of the fact that plaintiff negligently and carelessly failed to exercise the highest degree of care in stopping and bringing to a standstill said Ford car on the traveled portion of Highway 25 and that plaintiff carelessly and negligently failed to give a reasonable warning of the presence of said motor vehicle on said highway, if you so find, and if you further find and believe from the evidence that said act or acts of negligence, if you find such act(s) or acts to be negligence, directly caused, or contributed to cause, plaintiff’s injuries and the collision mentioned in evidence, then the plaintiff cannot recover and your verdict must be for the defendant.”
Plaintiff, in his brief, earnestly insists that he was not an operator of a motor vehicle within the meaning of Sec. 304.010, V.A.M.S. This section provides in part that “Every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise,the highest de
In the case before us, Mr. Hewitt and his son, the plaintiff, were joint operators of the Dodge truck and the towed Ford. Hanks v. Landert, 37 Wash.2d 293, 223 P.2d 443, 30 A.L.R.2d 1012. The plaintiff, in moving the vehicle was steering the towed car. This seemed to be necessary. In fact, plaintiff’s evidence as well as that of his father was that the vehicles were stopped at the point of the collision for the very purpose of instructing the plaintiff as to the manner of operating the Ford. When the vehicles were stopped, whether on the shoulder or on the pavement, it was dark. Was it the duty of plaintiff to have the lights on the rear of his car burning? Was not that act or failure to act a part of the operation of the vehicles? The answer to both questions must be in the affirmative. Negligence in this respect would be considered a failure to exercise the highest degree of care. See authorities cited supra and Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 1. c. 478 (18), and cases there cited.
Plaintiff, in the brief, says that “Instruction No. 4 prejudicially assumed in three different places that the Ford automobile was on the highway which was a controverted fact.” We agree that the fact was controverted but do not agree that such fact was assumed in Instruction No. 4. The instruction, with reference to this subject matter, begins by stating, “if you further find and believe from the evidence * * * ” and ends with the words “if you so find.” The instruction, as we understand it, required the jury before authorizing a verdict for defendants to find as a fact that the Ford was stopped on the pavement and that no warning was given of its presence; further, the jury was required to find that such acts or failure to act constituted negligence. What we have said disposes of plaintiff’s similar contention with reference to the question of warning.
Plaintiff says the instruction failed to hypothesize facts necessary to define “reasonable warning.” Plaintiff cites the case of Phillips v. Stockman, supra, as authority. In that case, the collision with a parked car occurred in daylight and the court held that a verdict-directing instruction should have hypothesized facts which if true would have required the defendant to give a warning. Among such facts was that a setting sun was such as to blind the driver of an oncoming car. Judge Stone, in considering the question, stated, 351 S.W.2d 1, c. 475(15), “Under some circumstances (e. g., in dense fog, heavy rain, or blinding snow), the hazard or peril created by the stalling of a truck with any portion thereof on the paved roadway might be so flagrant and obvious as to charge the driver of the stalled vehicle with immediate knowledge thereof
We rule that the points briefed by plaintiff with reference to instruction No. 4 are without merit.
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the Court.