Action for damages for personal injuries sustained by Elizabeth Kieffer in "a collision between a Dodge automobile driven by her and an MG automobile owned by defendant Dudley A. Bragdon, Jr., and driven by defendant Allen Bragdon. A jury verdict was returned in favor of plaintiff in the sum of $7,500. From the judgment of the Circuit Court of St. Louis County entered upon the verdict both defendants have appealed.
The petition alleged that while plaintiff was driving the Dodge west on U. S. Highway No. 40 the defendants negligently entered the highway in the -MG in front of the Dodge when the MG was in dangerously close proximity,- turned the wrong way into a one-way highway, failed to maintain a vigilant watch, and traveled at a high- speed, as a result of which the collision and damages occurred. Other specifications of negligence, abandoned in the submission, are immaterial here. Defendants’ answers consisted of separate general denials and pleas of contributory negligence.
'' The collision occurred in St. Louis County on the westbound portion of No. 40, a dual highway built - with two contiguous lanes for westbound traffic and two contiguous lanes for eastbound traffic. The westbound and eastbound trafficways are separated by a 30-foot grass-covered parkway. The scene of the collision was that portion of the westbound trafficway immediately west of the west end of the bridge overpass at the cloverleaf intersection where No. 40 crosses over Lindbergh Road, in St. Louis County.
Plaintiff, the sole occupant of- the Dodge, was driving west .on No. 40. Defendants, with Allen at the wheel and Dudley seated alongside, were traveling south on Lindbergh Road intending to turn west at the intersection and proceed west on No. 40. Under prevailing traffic rules defendants, coming south on Lindbergh Road, in order to accomplish their purpose, would turn to the right before reaching the point where Lindbergh Road goes under the No. 40 overpass bridge and drive in an ascending curve to the left, which would bring them to the north lane of the westbound No. 40 trafficway, at which place there was a stop sign. After observing the stop sign *13 defendants would turn to the right into No.-40 and thence west. Traffic traveling west on No. 40 and intending to turn at the intersection to travel ■•south on Lindbergh Road would drive across the overpass bridge, execute a right turn, proceed on a descending right curve to the west edge of Lindbergh Road, stop, turn right into. Lindbergh Road'and proceed'thence south. Allen Bragdon drove the ' MG south. on-Lindbergh Road, made a right turn at the proper place and took the proper course, proceeding on -an ascending curve to the left until he reached a fork in the pavement. The left fork was the one-way cutoff used for diverting from No. 40 westbound traffic intending to turn south at the intersection. The right fork was the one-way pavement used by southbound traffic coming off Lindbergh Road intent on proceeding west on No. 40. Becoming confused Allen Bragdon mistakenly took the left fork instead of the right fork, drove.the MG into No. 40 without stopping and headed east ■' instead of west thus proceeding the wrong way on a one-way, threedane trafficway. Almost, immediately after straightening out-in an eastward course the MG collided head-on with the westbound Dodge.
Defendants’ first point, that plaintiff was guilty of contributory negligence as a matter of law, requires a detailed review of the evidence viewed in the light most favorable to plaintiff. Approaching the overpass on No. 40 from the east there is a slight upgrade and the trafficway widens out into three lanes. It continues .as a three-lane trafficway across the overpass bridge and for several hundred feet west. A westbound motorist ascending the incline cannot see the northwest quadrant of the cloverleaf until he reaches the top or center of the bridge. A four-foot concrete railing on the north side of the bridge interferes, with one’s view to the right or north as one travels west. The highway was dry, the weather was hot, and there was sufficient light to see clearly without the necessity of turning on headlights. As plaintiff, traveling west, entered the east end of the bridge there was another westbound car in front of her, traveling about 30 miles per hour. This car was driven by Sam C. Nicholl. Plaintiff was operating the. Dodge about 30-35 ■ miles per hour. Both the Nicholl car and the.Dodge were traveling in the right or northernmost lane as they crossed the bridge. At about the center of the bridge Nicholl signaled a.right turn and started to slow down to make a right turn on the cutoff. The. distance between the west end of the overpass bridge and the.cutoff is 173 feet. Plaintiff then pulled over into the center lane. When Nicholl made his hand signal the MG was in the northwest quadrant of the cloverleaf, coming up to No. 40, its tires squealing as it made the turn, traveling between- 40 and 45 miles per hour. Without stopping, or reducing its speed or sounding a horn Allen Bragdon drove the MG into No. 40, swerving around in front of the Nicholl car, apparently increasing the speed of the MG in' order to avoid a collision with, and passing some 8 or 10 feet in front of; •■•the-Nicholl car. The Nicholl car,- in front of and to the right of the Dodge, began to swerve from side to side in an irregular manner. Plaintiff saw the MG when still headed south and as it' was entering No.-40. At that time the Dodge was 75-100 feet east of the cutoff. Nicholl cut' over to the right side of the road, his- brakes practically, locking in an effort to avoid colliding with the MG. The MG swerved out to miss the Nicholl car, went around the Nicholl car, which was practically stopped by that time, and collided head-on with the Dodge at a point about 30-40 feet east of the cutoff and in the middle of the three lanes. The driver of .the MG apparently did not apply his brakes. When the MG swerved toward the Dodge plaintiff grabbed hold of the steering -wheel, slammed on the brakes and “froze.” At the time of impact the Dodge had not yet come up even with the Nicholl car,' but was half, a'Car length behind it;, “halfway in back” of the-Nicholl car.
Plaintiff was an experienced automobile driver. The brakes and tire.s on the Dodge were good. Taking into consideration road and weather conditions it would take her approximately 75 feet, including reaction *14 time,- to stop the Dodge traveling at a speed of '35-40 miles per Hour; Although Allen Bragdon had driven other automobiles extensively he had not driven an MG, a British-made ca-r, before that date. Allen was unfamiliar with the intersection and conceded that he failed to observe the one-way sign at the fork, and that -he entered No. 40 without stopping or slackéning his speed and without observing any 'approaching 'traffic.5' He looked to -the' right, instead of the - left, before entering the highway, and conceded- -that he did not sound his horn. He testified that the crash occurred almost immediately' after he turned onto the highway, and that he had been drinking bourbon and water highballs -‘'‘moderately-” before the accident. After the' collision Dudley A. Bragdon, Jr. said “We were certainly at fault.” ■ >'
Asserting that plaintiff had, an unobstructed view of-the highway and a-clear (Opportunity to have seen defendants’ automobile, .defendants argue that plaintiff is guilty of- contributory negligence in failing to swerve 'if she saw the MG, and in failing tc look if she did not see it. It is said that her- opportunity to see the MG wás greater than- that of Nicholl because she not only could have seen the MG approaching but also could have seen Nicholl’s automobile swerving in his effort to avoid the MG. Defendants point out -that there wás a clear lane to plaintiff’s right into which she could have swerved and conclude that plaintiff had no right to continue to hold her course and collide head-on with defendants’ automobile but should have swerved into the right-hand l'ane and avoided the accident.
Plaintiff’s contributory negligence is for the jury unless reasonáble minds can draw only one conclusion, namely, that plaintiff was negligent. Thompson v. Byers Transp. Co.,
Defendants’ next: -'point is that there was no evidence to support a verdict against-Dudley A. Bragdon,'J-r., the owner of- the ca-r; that the evidence showed, that Allen was' driving . solely for his own-pleasure and that Allen- was not driving the MG on any mission for, or as the agent of, Dudley. It is argued that the negligence was that of Allen alone, not participated in, directed 'by, or known to Dudley in time to have prevented it. Further, that after Allen made the wrong turn, Dudley warned him, at, the first opportunity. The facts disclose, however, that Dudley- and" his nephew Allen had attended a social party together and were together in thé car on the way home to Dudley’s house at the time of the collision. Dudley permitted Allen to drive “so that he could have some fun and try out the automobile.” It was Allen’s first visit to St.‘ Louis, and he was wholly unfamiliar with the streets. Dudley testified that he was directing him which way to go. Dudley was seated next to Allen in the two-seated car. Dudley further testified that “He (Allen) wanted to try it out, and having an excellent reputation of being a driver
and my being in the car,
I saw no reason why he should not, and that is how he happened to be driving.” Dudley testified that he was paying attention to “where we were supposed to go.” When Allen took the wrong fork in the road Dudley warned Allen, thus actually exercising his right of control by saying to him “You are going the wrong way” but the' warning came too late, for the reason that
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he-was already dose to or .upon the highway by the time the words were uttered. Under these circumstances there was no error in submitting, the negligence of Allen as that of Dudley. It is well settled in this state that the' negligence of the driver, of an automobile is-imputable and attributable to the owner of the;- automobile where the owner ⅛ personally present in the automobile and where the owner and the driver of the automobile are engaged in a joint journey or enterprise, either of business or pleasure. Mendenhall v. Neyer,
“The defendants certainly were engaged in a mutual enterprise, and were .on a common mission. They both knew where they were going; the car being then used to take (the uncle) home, together with (the nephew). * * * while it is not shown that (the uncle) specifically issued orders to (the nephew) as to what streets he was to take, and - in what manner the automobile was to be driven or operated, yet he, as the owner of the car, had such right to control and direct it. He was interested in the movement of the machine; at least to the extent that it served his purpose of taking him home on that occasion. *. * * We think the defendant (uncle) cannot escape liability on the theory of not showing * * * agency.”.
Defendants’ next point is that the court erred in refusing to permit defendants counsel to cross-examine plaintiff with reference to the results of X-ray pictures of plaintiff. The doctors who took the pictures did not testify but two of plaintiff’s doctors who examined the X-rays testified that they were negative for bone injuries, fractures, or dislocations. After ascertaining from plaintiff that she had discussed .the results of the X-rays with her doctors counsel for defendants sought to elicit from plaintiff that her,physicians had told her that there were no.. fractures or broken bones shown by them. , The court sustained an objection to this question and refused an offer of proof that the doctors who took the X-rays disclosed to plaintiff that they were negative for any bone injuries, fractures or dislocations. Error is urged, not on the theory that the hearsay testimony was competent to prove the fact that the X-rays were negative but that it was competent thus to show that plaintiff knew from time to time, as she came forward with new complaints, that her complaints were unsupported by any of the various sets of X-rays which were taken. Had the pleadings raised an issue of the presentation of a fraudulent claim such evidence might have been admissible. There was no such issue, however, and the evidence was clearly inadmissible, as hearsay. Hughes v. Prudential Ins. Co., Mo. App.,
Defendants next complain that the court erroneously refused to permit cross-examination of a police officer who appeared at the scene after the accident occurred with reference to a written police report in which he made the statement: “No one injured.” The record shows that when counsel for defendants, after asking the officer if he made the report and if the facts stated therein were true, undertook to read the contents of a copy of the report to the jury the court sustained an objection to the reading of the report to the jury. Cross-examination with reference to the *17 point in question,' however, proceeded immediately after that ruling. In the cross-examinátion counsel for defendants elicited from the witness that on the highway and immediately after the accident, while it was fresh in his mind, the officer made a formal, accurate, full report 'of what he had found, in which he stated “No one injured;” that the officer observed Mrs. Kieffer and took her home, and that as far as injuries were concerned he “could not see anything;” that he “could not do anything but take their word for it,” and that to the best of his knowledge the report was true; that no medical attention was given to anyone; that when'someone is injured “you have to take them to a hospital,” but that in this case no one was taken to any hospital or doctor’s office. Full right of cross-examination was accorded defendants and no prejudice to defendants’ rights is to be found in the action of the court.
Defendants next claim that Instruction No. 1 was erroneous, because it was too lengthy, contained an undue comment on the evidence, was repetitious, and submitted conclusions of law. Instruction No. 1, a verdict-directing instruction covering the entire fact submission on several different assignments of negligence and negativing contributory negligence in a case involving three vehicles at a complicated cloverleaf overpass ' location, occupies 2 pages and 7 lines oh a third page of the transcript.' While lengthy and verbose it would be difficult to condense the subject-matter to any considerable degree, and we do not believe that defendants were prejudiced by the undue length of the instruction. Next, it is urged that instead of submitting a finding that á highway sign directing defendants to turn to the right was in place and that the defendant driver turned to the east when he should have turned to the west the instruction twice submitted a finding that he
disobeyed
the highway sign and reiterated the idea by finally requiring' a finding “that in so operating his automobile the said defendant traveled the wrong way on the said highway.” The question of repetition or elaboration of the same proposition"in instructions is a matter 'Of discretion on the part of the trial court, and is generally not held to be reversible error where approved by the trial judge. State ex rel. Kansas City v. Shain, Mo.Sup.,
Instruction No. 2 submitted the liability of Dudley for the negligence of Allen on the basis that he permitted the latter to drive and remained in control of the .movements of the automobile. The propriety of such an instruction under the facts of this case has been demonstrated above. Exception, however, is taken to the language of the instruction reciting that if the owner permits another to operate an automobile but remains in control thereof “the driyer thereof is no more than the
alter ego
of the owner and the driver’s acts are in effect just as much the acts of the owner as though the owner were the- one actually operating the automobile.” It is said that this language is to be condemned as an abstract statement of the law. We find no error in Instruction No. 2 in this connection. Immediately following the portion of the in
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struction of which complaint is made another paragraph follows in which the facts necessary to be found in order to establish liability under the rule of law mentioned are fully recited. In such case defendants cannot complain. Richards v. Gardner, Mo.App.,
The damages instruction, No. 6, is challenged on the ground that it erroneously allows recovery for future physical pain and mental anguish, and for nervous shock. An allowance for these items was justified by the evidence that as a result of the accident plaintiff will be obliged to wear artificial dentures, which interfere with ability to chew, reduce the ability to taste food, and with which “you get an awfully sore gum the testimony of Dr. O’Reilly that plaintiff’s back injury will “go on for some time longer” and “may” be permanent; and the testimony that immediately after the accident plaintiff was trembling so hard that she could not walk; that plaintiff looked stunned ; and that she was under a great deal of tension, when she first saw her doctor.
Finally, defendants propose that the verdict of $7,500 is grossly excessive. Plaintiff. was 44 years of, age at the .tipie. In the accident plaintiff’s right hand was knocked off the steering wheel and struck something, causing" a lump on the right wrist. Her head was thrown forward with such force that her chin struck something, loosening her upper teeth. The skin was broken on her right ankle. Her right knee was skinned and her stocking torn. She was not thrown out of the seat or rendered unconscious. The car remained upright, still in the middle lane of the road, still headed west. After the accident plaintiff remained at the wheel of the automobile for approximately 45 minutes because she was trembling so that she could not walk. She stated that she did not believe that she was hurt, but that her wrist was stiff. She appeared to be stunned. Some time after the accident she was still gripping the steering wheel with her left hand, and a man reached in and pulled her fingers off the wheel. She informed the police officer who investigated the wreck that she did not know for sure, that it was “too soon, after the accident to tell,” whether she was hurt. She was taken to her home. Upon arrival she was still shaking. She took a hot bath and went to bed, but was not able to sleep much. She remained in bed the next day, although she left the house that evening to visit her husband who was a patient in a hospital. Two days after the accident plaintiff went to the office of-Dr. J. P. Wade for examination and X-rays, complaining that her front upper teeth were loose, that she had headaches, that her right ankle was swollen and that her right wrist had a knot on it. Her right ankle, was almost twice its normal size and the knot on her wrist was the size of an egg. The knot persisted to the day of trial. She had a headache constantly for six weeks. The X-rays were negative. Four days after the accident, her neck and back causing , her pain,. she returned to Dr. Wade. Under the direction of Dr. O’Reilly, brought in for consultation, plaintiff was given 11 or 12 two-hour heat treatments, from which she obtained no relief. She was examined by Dr. Gansloser, a neurologist, who was not called as a witness.- The findings of the neurologist,, who examined plaintiff for possible injuries to the central nervous system, spine, brain, spinal cord and nerves, were negative. Later Dr. O’Reilly froze her shoulder by spraying chemicals on it, but that did not afford plaintiff any relief. At the time of trial, plaintiff still had pains about her neck, the lower back of her head, down the neck, and over the right shoulder and the upper two-thirds of her right side. She complained that she still had headaches. The pain had persisted for 16 months and had gotten worse. She was under the care of a dentist, Dr. Edward Reisse, for over a year. Previous to the accident she wore a bridge in place of her four front upper teeth. The bridge was fastened to her two eye teeth. The eye teeth were loosened in the accident. The dentist testified that he gave plaintiff penicillin treatments in an attempt to save the- teeth which were damaged, without avail. Those two teeth and the two next to them had to be extracted, since they could *19 not be treated. This left four-upper teeth remaining in the back part .of her mouth which, although not damaged by the accident and in good condition, were required to be extracted in order to fit plaintiff with an upper denture. The eight teeth were extracted during August and September, 1953. At trial time plaintiff was wearing a temporary upper denture which would re-, quire permanent replacement.. She can do her housework only a couple of hours at a time and then the pain becomes so bad that she has to stop work. Her right wri?.t aches and puffs and she cannot iron with, it. Her right foot swells when she walks on it. Dr. O’Reilly, who first saw plain-, tiff eight months after the accident, found a limitation of rotation of the neck of 10 to 15 degrees, tenderness in' the area around the shoulder blades and slight nodulation in the muscles in that area. His diagnosis was inflammation of the muscles alongside the vertebrae and in the muscles that bring the shoulder blades together. He testified that he examined her X-rays, which were negative for fractures, dislocations or bone injuries. The nodules in the muscles were probably caused by a small hemorrhage or sprain to the muscles; It was his opinion that since the back injury had lasted 16 months it would last for some time longer, and that the painful condition of the back may or may not be permanent. Dr. Wade saw. plaintiff 10 times at his office and occasionally at her home. He testified that she no longer complains of her foot or .wrist but that she still complains of pain along, the spine and in the shoulder blades. He had her hospitalized for three days in August, 1952 for the purpose of a checkup. He did not find any limitation of her neck, back, arm or leg, although he did find tenderness in the spine with some “muscle guarding” or slight tension of the muscles in that area.
No special damages were proved. Plaintiff did not own the damaged Dodge automobile and hence made no claim for property damage. Nor did she make any claim’ on account of doctor, dental or hospital bills. In fact, there was no hospitalization except a 3-day stay-for a .checkup a month or-so after the accident.. Plaintiff was a housewife and therefore sustained no loss of wages or earnings. Plaintiff suffered permanent injury in the loss of her teeth, but the evidence with reference to the permanency of the back condition was indefinite. The neurological findings were negative. Numerous X-ray pictures Were negative for fractures, dislocations or bone injuries. Except for the loss of teeth and the knot on her wrist all of plaintiff’s present complaints are subjective.
Plaintiff relies alone on the case of Brady v. St. Louis Public Service Co., Mo.Sup.,
It is therefore the recommendation of the Commissioner that if plaintiff will, within 30 days, remit the sum of $1,500 from the verdict of the jury in her favor, the judgment be reversed and the cause remanded with directions to the trial court to enter judgment in the reduced amount, to wit, $6,000; and that otherwise the judgment be reversed and the cause remanded for a new trial.
PER CURIAM.
The foregoing opinion of HOUSER, C., is adopted, as the opinion of the court, and pursuant to his recommendation, if plaintiff will, within 30 days, remit the sum of $1,500 from the verdict of the jury in her favor the judgment will be reversed and the *20 cause remanded with directions to the. trial court to eriter judgment in the reduced amount, to wit, $6,000; otherwise the judgment will be reversed and the cause remanded for a new trial