359 S.W.2d 424 | Mo. Ct. App. | 1962
Juvenile jollity and giddy gaiety were, in the twinkling of an eye, translated and transformed into mischievous misadventure and miserable misfortune when, on a country road near Portageville, Missouri, about 11:00 P.M. on Saturday, September 19, 1959, plaintiff, Inez Hosford, then fourteen years of age, fell or was thrown from the right front fender of a 1957 Oldsmobile sedan being driven by defendant, Larry Clark, then seventeen years of age. Damages were denied by a nine-man jury verdict for defendant; and, on this appeal from the judgment entered on the verdict, the only points presented by plaintiff are that the trial court erred in giving defendant’s instructions 6 and 7. Defendant answers that any error in said
Early on the evening of the accident, plaintiff Inez, with thirteen-year old Linda Young and fourteen-year old Sandra Hall, had gone downtown in Portageville to a carnival operating in connection with the annual “Soybean Festival.” Having done the carnival attractions, this trio of girls, afoot on Main Street about 9:30 P.M., were sighted by a trio of teen-age boys in the Oldsmobile. We observe parenthetically that the automobile was owned by one Or-bin McHugh, defendant Larry’s “cousin by marriage,” who had permitted his fifteen-year old son, Michael David (Mike) Mc-Hugh, although unlicensed to operate a motor vehicle, to take the family automobile that evening and to drive it from the McHugh farm home to the farm home of defendant Larry’s family about one mile distant with the understanding that Larry would drive from that point. So it was that on Main Street in Portageville later that evening Larry was at the wheel of the McHugh automobile with fifteen-year old Mike McHugh and eighteen-year old Vernon Stills, a neighbor youth, also in the automobile. Larry asked the girls if they “wanted to go riding” and, having demurely hesitated for a moment, they accepted his invitation and got into the back seat of the Oldsmobile.
After driving in Portageville for some twenty or thirty minutes, defendant Larry left town on an unpaved country road which afforded a more appropriate setting for the protracted series of zany antics inspired by the occasion. Larry opened the cross fire of youthful buffoonery by switching the ignition off and on until the Oldsmobile stopped and then by pretending that “we are out of gas.” Thirteen-year old Linda retaliated in kind by reaching over the front seat and grabbing the keys. Then all three girls jumped from the automobile, ran down the road ahead, and threw the keys back and forth from one to another. Two of the boys, defendant Larry and fifteen-year old Mike, immediately joined in the frivolous frolic; and, as plaintiff Inez described the action, “we started scuffling with the key” or, as Mike graphically portrayed it, the boys “took in after them (the girls) and we scrambled around there a little bit.” When he regained possession of the keys, Larry told Linda that she had lost one of the keys, although, as Mike explained, “we really hadn’t lost one — Larry just told her that.” Leaving Linda to hunt for the “missing” key, the others returned to the automobile, plaintiff Inez and Sandra got into the back seat again, and defendant Larry started the motor, drove down the road to Linda, and terminated her search for the nonexistent key.
In the exhilaration and the exuberance of the moment, Linda climbed on the left front fender and sat sideways with her legs hanging over the side of the fender, holding (so plaintiff Inez thought) to “the windshield wipers or something.” Not to be outdone by Linda, the other two girls left the back seat of the automobile, Sandra assumed a sitting position “in the middle of the hood” with her back to the windshield and her legs and feet on the hood, and plaintiff seated herself on the front of the right front fender, facing forward with her feet on the front bumper, and holding with her left hand to an emblem or ornament on the hood. Admitting that he knew that “it was dangerous for these girls to be riding on the front fender (sic) and hood,”
In any event, Larry started forward with the girls draped over the front of the Oldsmobile in the described positions. Proceeding (so he said) at a speed never in excess of fifteen miles per hour, he drove without incident “approximately a quarter of a mile” in the course of which he rounded a sharp curve to his left. Approaching a second curve described by him as “a corner,” Larry slackened speed to about five miles per hour; and, as he completed this curve, he spotted a side road where he could turn around. Intending so to do, Larry quickly applied the brakes, the automobile immediately stopped, and plaintiff unceremoniously fell or was thrown from the right front fender. Larry frankly stated upon trial that he had not driven previously either his cousin’s Oldsmobile involved in this occurrence or, for that matter, any other automobile with power brakes, and that the power brakes on the Oldsmobile had “grabbed hold quicker” than he had anticipated. The medical testimony was omitted from the transcript as not relevant to any issue upon appeal, but the reader may be interested to know that the record reflects relatively mild injuries and thus only near-tragic rather than calamitous consequences.
In support of his contention that plaintiff was contributorily negligent as a matter of law, defendant cites three cases [Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573; Sanford v. Gideon-Anderson Co., Mo.App., 31 S.W.2d 580; Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420], all of which involved adult riders on motor vehicles but only one of which [Smith, supra] held the rider guilty of contributory negligence as a matter of law. It is true that, as the adjudicated cases
Since “(t)here is no fixed rule of law by which to gauge, or scale by which to nicely weigh, the acts of a minor to determine if he (or she) is guilty of contributory negligence” [Jackson v. Butler, supra, 249 Mo. loc. cit. 369, 155 S.W. loc. cit. 1079], and since, in each instance, not only the age of the minor but also “the peculiar circumstances of the particular case, the knowledge and experience of the child in reference to those circumstances, and his capacity to appreciate the danger” must be taken into consideration [Moeller v. United Rys. Co., 242 Mo. 721, 729, 147 S.W. 1009, 1012 (6)], whether a minor plaintiff has been guilty of contributory negligence, i. e., whether the minor both knew and appreciated the danger and the risk of injury, is usually for the triers of the facts. For that matter, judicial declaration that any plaintiff has been contributorily negligent as a matter of law is permissible and proper only where it may be said upon the whole evidence and all inferences deducible therefrom, when viewed in the light most favorable to plaintiff, that the only reasonable conclusion is that plaintiff was guilty of negligence proximately causing his injury.
Exemplifying the inexhaustible, incredible capacity of the human race to concoct, conceive and create bizarre situations presenting unnecessary and inordinate danger to life and limb, some weird factual concatenations involving riders on (as distinguished from in) motor vehicles have come to our appellate courts. E. g., Smith v. Ozark Water Mills Co., supra, in which a 26-year old man, standing at night on the left running board of an automobile rounding a sharp curve on the wrong side of an unpaved road and holding a possum in his left hand and the strap on the back of the
However, we have found a number of cases in other jurisdictions falling into this factual category. Where the fender riders have been adults, the cases appealing to us as better-reasoned and sounder in principle hold such riders contributorily negligent as a matter of law,
In the case before us, we know very little about plaintiff Inez other than that she was fourteen years of age at the time of accident. The record does not reveal the extent of her formal education (or, for that matter, whether she had gone to school), the scope of her experience as a rider either in or on motor vehicles (presumably, at her age, she had had no experience as a driver), or the measure of her physical strength or her mental development. Certainly, nothing suggests precocity of intellect, judgment, or capacity to comprehend danger and appreciate the risk of injury therefrom. We have not overlooked the fact that, as defendant's counsel point out, plaintiff told her girl companions that “you better hang on or you’ll fall”; but obviously this may not be said to have indicated comprehension of danger or appreciation of the risk of injury at a time when she thereafter could have avoided exposure thereto, for this statement was made while the Oldsmobile was in motion and she “fell off right after that.” Believing that reasonable minds well might disagree as to whether plaintiff fully comprehended the danger and appreciated the risk of injury inherent in her action and conduct, we are constrained to conclude that the issue of contributory negligence was for the jury and that therefore defendant’s motion for a directed verdict properly was overruled.
This brings us to the complaints about defendant’s instructions 6 and 7.
True, the degree of care required of plaintiff was, in instructions 4 and 8 given at her request, stated in substantially correct terms. But, this does not bring defendant within the curative cloak of the oft-invoked principle that all instructions should be read together and considered as a whole and if, when so read and considered, they are harmonious, clear and complete, reversible error cannot be found because one of them, considered singly, may be defective. Faught v. Washam, Mo., 329 S.W.2d 588, 597(10); Johnson v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75, 81(8); Layton v. Palmer, Mo., 309 S.W.2d 561, 570(20), 66 A.L.R.2d 1242. In Warren v. Kansas City, Mo., 258 S.W.2d 681 (upon which instant defendant primarily relies), defendant’s criticized instruction on contributory negligence “did not in point of fact purport to set forth the degree of care to be exercised” by plaintiff [258 S.W.2d loc. cit. 683] and, with plaintiff’s given instructions plainly stating the care required of him, “omitting reference to the care required of a minor” in defendant’s instruction could not have been erroneous or prejudicial when all of the instructions were read and considered together. [258 S.W.2d loc. cit. 684(4)] And, again in Hustad v. Cooney, Mo., 308 S.W.2d 647 (also cited by instant defendant), defendant’s censured instruction did not “either expressly or impliedly, purport to advise the jury as to the degree of care to be exercised” by plaintiff [308 S.W.2d loe. cit. 649], that matter having been covered fully and accurately in plaintiff’s given instruction. But, the holdings in Warren and Hustad, supra, do not reach or control the case at bar, for the vice of instant defendant’s instructions 6 and 7 is not one of harmless omission or negative nondirection but is rather one of positive misdefinition and affirmative misdirection which leaves the instructions, when considered as a whole, in a state of blatant discord and utter confusion.
The degree of care implicitly imposed upon plaintiff Inez by defendant’s instructions 6 and 7 was erroneous and in irreconcilable conflict with the degree of care stated in substantially correct terms in plaintiff’s instructions 4 and 8. With plaintiff’s and defendant’s instructions having submitted different standards of care, we
It is so ordered.
. Boesel v. Wells Fargo & Co., 260 Mo. 403, 169 S.W. 110, 113-114(3); McGee v. Wabash R. Co., 214 Mo. 530, 114 S.W. 33, 37 (15); Spillane v. Missouri Pac. Ry. Co., 135 Mo. 414, 37 S.W. 198, 201; McFarland v. Grau, Mo.App., 305 S.W.2d 91, 101-103(4, 5); Van Alst v. Kansas City, 239 Mo.App. 346, 186 S.W.2d 762, 766(5); Turner v. City of Moberly, 224 Mo.App. 683, 26 S.W.2d 997, 999(7); Battles v. United Rys. Co. of St. Louis, 178 Mo.App. 596, 161 S.W. 614, 623-624 (14, 15); Henry v. Missouri Pac. Ry. Co., 141 Mo.App. 351, 125 S.W. 794(2); Stegmann v. Gerber, 146 Mo.App. 104, 123 S.W. 1041, 1045(3).
. Moeller v. United Rys. Co., 242 Mo. 721, 147 S.W. 1009, 1011(4); Czernicke v. Ehrlich, 212 Mo. 386, 111 S.W. 14, 17; Anderson v. Union Term. R. Co., 161 Mo. 411, 424, 61 S.W. 874, 878: Doran v. Kansas City, Mo.App., 237 S.W.2d 907, 912; Erxleben v. Kaster, Mo.App., 21 S.W.2d 193. 198(12); Smiley v. Jessup, Mo.App., 282 S.W. 110, 112(6); Sailer v. Friedman Bros. Shoe Co., 130 Mo.App. 712, 109 S.W. 794, 797.
. Warren v. Kansas City, Mo., 258 S.W.2d 681, 683(3); Beebe v. Kansas City, 327 Mo. 67, 34 S.W.2d 57, 58(5); Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071, 1079(16); Spillane v. Missouri Pac. Ry. Co., supra, 37 S.W. loc. cit. 201(2); Hammontree v. Edison Bros. Stores, Mo.
. Dye v. Geier, Mo., 345 S.W.2d 83, 87 (3); Binion v. Armentrout, Mo., 333 S.W.2d 87, 91(4); Kickham v. Carter, Mo., 314 S.W.2d 902, 908(8); Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, 500(4); Anderson v. Welty, Mo.App., 334 S.W.2d 132, 138(9); Carpenter v. Kessner, Mo.App., 330 S.W.2d 270, 271 (1); Hathaway v. Evans, Mo.App., 235 S.W.2d 407, 412(13).
. Hinch v. Elliott, 119 Conn. 207, 175 A. 084; Wheeler v. Buerkle, 14 Cal.App.2d 368, 58 P.2d 230; Granfield v. Herlihy, 322 Mass. 313, 77 N.E.2d 223; Central Transfer & Storage Co. v. Frost, Ohio App., 36 N.E.2d 494, 498-499.
. Johnson v. Podicord, 105 Ind.App. 71, 10 N.E.2d 295; Smith v. American Oil Co., 77 Ga.App. 463, 49 S.E.2d 90; Collier v. Young, D.C.Mun.App., 94 A.2d 645.
. Byers v. Gunn, Fla., 81 So.2d 723; Lassiter v. Poss, 85 Ga.App. 785, 70 S.E.2d 411; Bordelon v. Great American Indemnity Co., La.App., 124 So.2d 634, 637-638(1, 2); Hammett v. Fleming, Tex.Civ.App., 324 S.W.2d 70, 74(7, 8), error refused n. r. e.; Tenney v. Enkeball, 02 Ariz. 416, 158 P.2d 519; Bruno v. Grande, 31 Ariz. 206, 251 P. 550; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Jewel Tea Co. v. Sklivis, 231 Ala. 590, 165 So. 824.