Plaintiff appeals from an adverse judgment on his claim for personal injuries incurred as a pedestrian when struck by defendant’s automobile in the City of St. Louis. The petition charged primary and humanitarian negligence but plaintiff submitted his cause on humanitarian negligence only.
On appeal plaintiff contends the trial court erred in the following respects: (1) by permitting defendant to read in evidence immaterial and irrelevant portions of plaintiff’s hospital record; (2) by allowing improper argument in which defense counsel misstated the law concerning defendant’s duty to maintain a lookout and by such argument erroneously instruсted the jury on the charge of humanitarian negligence; and (3) in permitting prejudicial, immaterial and irrelevant argument pertaining to plaintiff’s drinking on the day of thе accident which improperly injected plaintiff’s antecedent negligence in the humanitarian claim against defendant.
A brief statement of the facts will suffice. While crossing Newstead Avenue, a north-south street, at its intersection with Lexington Avenue in the City of St. Louis, plaintiff was struck by defendant’s southbound automobile. Plaintiff tеstified he *770 stood on the northeast corner, looked in both directions for traffic, and seeing none, attempted to cross to the west. When crossing, he was struck by defendant’s car which came upon him from the north without warning. Disputing that account, defendant testified plaintiff “darted” from behind stationary traffic in the opposite lane and passing in front of defendant’s automobile, slipped backwards, struck the side of the car, rolled across the hood and fell to the street.
As previously stated, plaintiff alleged both primary and humanitarian negligence, submitting however only on the latter. Mindful of this, we first consider appellant’s sеcond contention stemming from the following exchange during defendant’s final argument:
“MR. GUNDLACH (defense counsel): When I was impaneling the jury, I asked you if you would carefully fоllow the evidence and the instructions of the Court and would not let anything else enter into your decision, not sympathy for one side or the other. If you listened сarefully to the instructions, there was no charge of Mr. Gallion (defendant) failing to keep a careful lookout or driving too fast. (Emphasis added).
MR. KIRBY (plaintiff’s counsel): I object to that, Yоur Honor. There is a charge of failure to keep a careful lookout.
MR. GUNDLACH: Do you have the instructions?
MR. KIRBY: Here they are; paragraphs 2 and 3 (Instruction No. 2 is the Humanitarian Instruction in question).
MR. GUNDLACH: There is nowhere in this instruction — you can take the instructions with you to the jury room. It doesn’t charge the defendant with negligence and failure to keep a careful lookout, paragraph 2. (Emphasis added).
MR. KIRBY: I want to object to that, Your Honor. That’s the MAI instruction that says he knew or could have known, and that’s lookout.
MR. GUNDLACH: That’s your interpretation of ‘lookout,’ Mr. Kirby.
THE COURT: The court will overrule the objection. The jury will have the instructions.
MR. GUNDLACH: The word ‘lookout’ is not used in here.. He is charged with being Superman; that’s what hе is asking Mr. Gallion to be, a Superman. How in the world you can see through cars and around streets is beyond me.”
The instruction in question, number two, (combined MAI 17.14 and 11.03 modified) reads in pertinent part as follows:
‘ “Your verdict must be for plaintiff whether or not plaintiff was negligent if you believe:
‘ “Second, defendant knew or by using •the highest degreе of care could have known of such position of immediate danger, and
‘ “Third, at the moment when defendant first knew or could have known of such position of immediate danger, defendant still had enough time so that by using the means available to him and with reasonable safety to himself аnd all others and by using the highest degree of care he could have avoided injury to the plaintiff by slackening his speed, * * *. (Emphasis supplied).” ’
Plaintiff argues that defеndant’s duty of lookout was correctly and implicitly included in Instruction No. 2. That defendant’s contrary oral assertion (made in final argument) was misleading and confusing, constituting an impermissible misstatement of the law and misdirection of the jury. We agree with plaintiff’s contention.
The operator of a motor vehicle, as defendant here, in a pedestrian-humanitarian case is under a duty to maintain a lookout ahead and laterally for users of the highway.
Williams v. Rickleman,
Misstatements of the law are impermissible in final argument and should be promptly corrected by the court. This proposition is well-stated in
Carrel v. Wilkerson,
“While a trial court because of its coign of vantage of the proceedings and their affect on the jury, has a large discretion in permitting, restraining аnd purging final argument . . . , there is no room for the exercise of judicial discretion on an issue of law.” (Emphasis added).
See also
Jones v. Gooch,
This is not a question of quarrelsome epithet, invective оr sarcasm, nor of argued inference or misstated fact, rather it’s an instance of misstated law, affording no leeway for the exercise of judicial discretion. Under long established principle, the trial judge was required, yet did not, prohibit or correct the improper argument.
Defendant would minimize the statement’s effect, and in his brief argues that any confusion created by the statement “was clarified when counsel for plaintiff objected on the grounds that the phrase ‘could have known’ in the instruction implies, ‘lookout.’ ” This curious contention ignores the fact the trial court’s ruling placed its imprimatur on the statement, effеctively telling the jury, plaintiff’s objection was not well-taken. Defendant’s pious argument is quite different from defense counsel’s retort made to plaintiff’s counsеl, (who had just objected to the misstatement) “that’s your interpretation of lookout, Mr. Kirby”; or his earlier statement when referring to the instruction “[TJhere is no charge to keep a careful lookout”; or his original statement made before objection “if you listen carefully to the instruction, there was no charge of Mr. Gallion, failing to keep a careful lookout . .”; and when he considered the instruction in the jury’s presence pointing out “it (referring to the Instruction No. 2) dоesn’t charge the defendant with . . . failure to keep a careful lookout.” For these improper statements in final argument, the judgment is reversed.
Appellant’s other points concern admissibility of certain evidence and related portions of defendant’s closing arguments. Though perhaps meritorious, thеir resolution is not required for disposition of the *772 case and as we cannot determine what evidence will be offered or arguments made on retrial, we do not rule the points.
The judgment is reversed and cause remanded for new trial.