Plaintiff has appealed from a judgment for defendants entered pursuant to jury verdict in her action for damages in the amount of $40,000 for personal injuries.
Plaintiff’s points on this appeal pertain only to two instructions given at the request of defendants Bi-State Development Agency and Robert Ginther. This results in no issue being presented as to the judgment in favor of defendant Esther Grotsky. Only a brief summary of the evidence is required.
At about 10:40 o’clock of the evening of February 25, 1967, plaintiff alighted from a bus of Bi-State Development Agency being operated by Robert Ginther. Plaintiff testified that Mr. Ginther “motioned” her to cross in front of the bus, and that when she was at the center of the bus he “raced the motor.” This caused her to move quickly into the street, and when she was at or near *308 the center of the street she was struck and injured by an automobile operated by Esther Grotsky.
Plaintiff’s case against Esther Grotsky was submitted on humanitarian negligence. Her case was submitted against defendants Bi-State Development Agency and Robert Ginther by Instruction 4 on primary negligence in that “Robert Ginther motioned plaintiff to cross in front of the bus when it was unsafe to do so and then raced motor causing plaintiff to move hurriedly out into street.” The instruction then submitted in separate paragraphs that “defendants were thereby negligent” and that “such negligence directly caused or directly contributed to cause damage to plaintiff.”
Plaintiff contends that prejudicial error resulted in the giving of the following converse instruction:
“Instruction No. 5
“Your finding must be for defendants Bi-State Development Agency and Robert Ginther under Instruction 4 if you do not believe :
that said defendants were negligent or
that plaintiff sustained damage.”
Plaintiff contends that Instruction 5 is erroneous because (1) it “in effect permits the giving of two converse instructions when only one is authorized,” and (2) it is “not a true converse” instruction and therefore must be supported by evidence, but there was no evidence that plaintiff was not injured.
Instruction 5 followed the “First Method” set forth in MAI 29.01 for giving a converse instruction with the modification required when plaintiff submits on both primary and humanitarian negligence, as was done in this case. The “First Method,” as modified, provides that the converse instruction should begin with the phrase “ ‘Your [finding] must be for [defendants] if vou do not believe’ followed by one or more propositions submitted by the verdict directing instruction and in substantially the same language used in the verdict directing instruction.” (Italics added.) In MAI 29.02 the forms of converse instructions under the “First Method” include 29.-02(2) conversing negligence and 29.02(3) conversing damages. Instruction S followed these forms.
Plaintiff argues that by use of the disjunctive “or” Instruction 5 permitted the giving of two converse instructions contrary to the statement in “Notes on Use” following MAI 29.02 that “Defendant may give only
one
converse for each verdict directing instruction.” In Instruction 4, the verdict directing instruction to which Instruction 5 was directed, plaintiff submitted that defendants were “negligent” and that she sustained “damages.” If the jury believed that
either
did not occur plaintiff was not entitled to recover. See Schaefer v. Accardi, Mo.,
We consider now plaintiff’s contention that the second proposition submitted in Instruction 5, that plaintiff sustained “damage,” is not a “true converse” and had to be supported by evidence. She argues that “there can be no question but that plaintiff was injured.” That is true if the jury believed plaintiff’s evidence. But,
*309
plaintiff had the burden to prove damage which was essential to her right to recover, Schaefer v. Accardi, supra, and absent a judicial admission on the part of defendants, which did not occur, “the credibility of the witnesses giving oral testimony establishing the affirmative remains for the jury.” Kimbrough v. Chervitz,
By Instruction 6 defendants submitted contributory negligence on the part of plaintiff in that she ‘-failed to keep a careful lookout” or “stepped into the path of defendant Grotsky’s automobile when it was not reasonably safe to do so.” Plaintiff asserts this instruction was not supported by the evidence.
The bus was headed west on Arsenal Street and had crossed Sublette Avenue and stopped in a designated bus-stop area which extended about 50 feet west of Sublette Avenue. Plaintiff testified that when she alighted from the bus she turned and faced south. She could see eastwardly on Arsenal Street, and she saw the lights on an automobile about a block and a half away which was coming toward her. Ater she passed in front of the bus and arrived at its left front corner, she looked again to the east and saw an automobile four or five feet east of Sublette Avenue. There was nothing between her and that automobile, and she thought it was safe to cross the street. When she reached the center of Arsenal Street, or a little past the center, she was struck by the Grotsky automobile.
Plaintiff argues that there is no evidence that she “did not look to the east,” that the only evidence is that she did, and that in this factual situation she “cannot be found to be contributorily negligent.” Plaintiff cites and relies on Carradine v. Ford,
It is necessary that in order to authorize the giving of an instruction on failure to keep a careful lookout, that substantial evidence be produced showing that the person charged with that negligence, in the exercise of proper care, could and should have seen the danger of injury in time thereafter to have taken available and effective precautionary action. Zalle v. Underwood, Mo.,
The submission in this case was that plaintiff failed to keep a
careful
lookout. The evidence authorizes a finding that by looking eastward plaintiff saw the Grotsky automobile approaching, but she thought it was safe to cross the street. However, in this she obviously was wrong because she then walked into the path of the automobile. In Miller v. St. Louis Public Service Company, Mo.,
Under the evidence in this case, a jury reásonably could believe that even though plaintiff looked to the east and saw the Grotsky automobile, she did not look with sufficient care to appreciate and apprehend its danger to her if she proceeded into the street, and that such failure on her part constituted a failure to keep a careful lookout.
Plaintiff also contends that there was no evidence to support the submission that she stepped into the path of the Grot-sky automobile when it was not reasonably safe to do so, and she asserts that to make such a finding it “is necessary to totally disbelieve plaintiff’s testimony that the second time she saw the automobile it was four or five feet east of Sublette Avenue.” Of course, this is what the jury was entitled to do. The fact remains that after looking, plaintiff stepped from a place of safety, moved a few feet into the path of the automobile, and was then struck by it. These facts constituted evidentiary support for the submission.
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All of the Judges concur.