Borgstede v. Waldbauer

I concur in the first and second divisions of the divisional opinion and dissent to the third or last division which affirms the dissenting opinion of BLAIR, J., in the case of Causey v. Wittig, 321 Mo. 358, 11 S.W.2d 11 (a banc case), and overrules to a certain extent the majority opinion in the said case.

It is my purpose primarily to attempt to analyze and place what I think is the proper interpretation upon said majority opinion, and, secondarily, to make some observations concerning the form of the instruction which the divisional opinion suggests should be given in the retrial of the present case.

It is to be observed first that in the dissenting opinion of BLAIR, J., no authority is cited in support of the position taken therein and that the present divisional opinion finds no support in its citation for its criticism of said majority opinion. The first case which is cited is that of Parker v. St. Louis-San Francisco Railroad Co., 41 S.W.2d 386.

That was a specific negligence case. The defendant answered by general denial and "charged contributory negligence only on the plaintiff's failure to exercise care in reaching a place of safety after the automobile stopped on the track." This court has many times held that such an allegation as that is a legal conclusion and does not, even if not attacked, constitute a charge of contributory negligence. The court there, after setting out defendant's testimony, given without objection, respecting plaintiff's conduct in the premises, held that defendant could have amended the answer to conform to the proof and that the court rightly treated the answer as though it had been amended, and held that the defendant's instruction hypothesizing such facts was within the issue made by both the evidence and the pleadings. In response to a contention that the instruction "singled out and gave undue prominence to facts favorable to defendant and omitted other facts which were in dispute" the court said: "We find no material facts singled out and given undue prominence in the instruction, and we find no facts in dispute omitted from the instruction. Defendant was entitled to have any facts in evidence tending to sustain any defense made by it submitted to the jury. The fireman testified to the facts submitted by the instruction. And (in the state of the pleadings) the court could not have submitted the ultimate facts without mentioning them in the instruction." The court expressly distinguished the case then at hand from Causey v. Wittig, supra, by saying: "In that case the only issue submitted to the jury was the charge that defendant was negligent under the humanitarian doctrine." I concede that the general and well-established rule is, in effect, that each party to a cause at law has a right to instructions hypothesizing the facts which, if found by the jury to be true, would on the one hand sustain the cause or, on the other hand, sustain the defense. The dissenting opinion in the Causey case and the present divisional opinion alike invoke this general rule as their sole support. I think they misapply the rule. Difficulty in the application of this general rule may arise out of a misapplication of it made either through oversight or through disregard of its established limitations. This is due perhaps to failure to distinguish between the different classes of facts and the sufficiency thereof in a given situation presenting its own particular record and governed thereby. Misapplications similar to those just referred to have been pointed out and disapproved in a number of decisions of this court, some of which will presently be examined. The classes of facts referred to above are evidential or subordinate facts in the one class, and ultimate or essential facts in the other. In the Parker case, supra, the evidential facts were the only facts supporting the defense made and were sufficient to fully establish it. In the Causey case, a humanitarian doctrine case, the evidential facts submitted in the instruction there under review were not, as seems manifest, the full and complete equivalent of the attendant ultimate facts inherently involved in the situation and, were in part essentially determinative thereof. The defendant was, of course, entitled to an instruction the converse of plaintiff's basic instruction, but not to one which was not elementally andclearly a complete converse thereof, if the plaintiff's was correct. So that it is obvious that the opinion in the Parker case is not in principle in conflict with the majority opinion in the Causey case but is in complete harmony therewith.

The present divisional opinion states that said majority opinion in the Causey case "was erroneous because it did not require the jury to find that such a fact, that is deceased walking into the side of the car, was the sole cause of the injury, and also because it singled out and gave undue prominence to certain facts favorable to defendant." The statements made in said majority opinion must be read and interpreted in the light of all the record to which they are applied and in connection with the context. Let us go to the context of the majority opinion in the Causey case, and first to the instruction. I quote:

"``The court instructs the jury that if you find and believe from the evidence that while defendant was operating his automobile north on Tower Grove Avenue, the deceased, Charles Causey,suddenly ran across the street in front of a moving street carand toward the left rear side of defendant's automobile and in soclose proximity thereto as to make it impossible for thedefendant to prevent his automobile from colliding with the saiddeceased by the exercise of the highest degree of care in theoperation thereof, then your verdict must be in favor of the defendant.' (Italics ours.)

"On the face of this instruction, it is not clear whether it was intended to predicate a verdict for the defendant on the negligence of deceased as a contributing cause of the collision or as the sole cause of the collision. . . . We will now consider the instruction from both viewpoints. If it submitted the issue of contributory negligence, it was clearly erroneous, because that issue was not involved after plaintiff submitted her case on the humanitarian doctrine only, and because, of course, the contributory negligence of deceased did not relieve the defendant of liability under the doctrine. If it submitted the issue of deceased's negligence as the sole cause of the collision, it was erroneous, because it did not require the jury to find that the negligent acts of deceased, mentioned in the instruction were the sole cause of the collision and his resulting injuries and death. In failing to require the jury to so find, the instruction ignored the issue of concurrent negligence or the question of whether or not the collision was caused by the concurring negligence of defendant and deceased. In other words, it did not require the jury to find whether or not the defendant saw, or by exercising the highest degree of care,could have seen, the perilous situation of deceased, whilecrossing the street, in time, by exercising the highest degree of care, to have prevented the collision, by stopping his automobile, or by reducing the speed thereof and warning the deceased of its approach, or by turning his automobile aside. Plaintiff's main instruction (No. 1) properly predicated her recovery on an affirmative finding as to one or more of these omissions or acts of negligence on the part of defendant, and it follows, therefore, that defendant could not escape liability without a negative finding as to all of such omissions or acts of negligence on his part. In any view that may be taken of this instruction, it must be conceded that it did not make it clear to the jury whether the defendant was required to do anything to prevent the collision until the deceased was in ``close proximity' to his automobile. So, to say the least, the instruction was confusing and misleading in this particular. And, in its present form, it is subject to the further criticism that it singledout and gave undue prominence to certain facts favorable todefendant, and omitted certain other material facts which were in dispute. Viewed in this light, it furnished the jury with an argument on defendant's side of the case rather than enlightenment as to the rule of law applicable to the issues of fact. It was, for these reasons, highly prejudicial to the plaintiff, and therefore, must be held to be reversible error."

It seems too plain for argument that the instruction did single out and give undue prominence to the facts hypothesized as being sufficient upon which to determine the blame for the collision. The facts therein hypothesized were together not determinative of all the material facts attendant upon the collision and those facts leading up to it. Yet the instruction implied that they were determinative. In another view, the instruction failed to make it clear to the jury whether defendant was required to do anything to prevent the collision until the deceased had reached a degree of proximity to the automobile that rendered preventive action on the part of defendant impossible. It reduces the danger zone and defendant's duty with respect thereto to a common vanishing point. Said instruction was, therefore, as stated in said opinion, at least "confusing and misleading." It seems to be entirely clear that the statement made in the majority opinion in the Causey case, touching "other material facts which were in dispute" referred to facts involved in the entire situation (and set out in said majority opinion) which were essentially determinative of negligence vel non and liability of the defendant under the humanitarian rule, and as such were hypothesized in plaintiff's basic instruction. Not all of which determinative facts, it was in effect stated in the Causey majority opinion, were hypothesized in defendant's instruction in a manner clear to the understanding of a jury of laymen; that rather they seemed to be withdrawn from the jury's consideration by defendant's said instruction which in terms made no reference to them, but apparently ignored them altogether. They were the approach of the pedestrian and the driver's duty in that respect. From the context it seems to me that by the expression "facts favorable to defendant" it was not meant to characterize the facts themselves as inherently favorable to the defendant but favorable only from the undue prominence and emphasis given them. That was the circumstance "suddenly ran across the street, etc." Thus they were, in my estimation, calculated to imply fault on the part of the plaintiff in respect of his very manner of approach, from start to finish; and their misleading tendency was obviously susceptible of effective use in argument addressed to the jury. Some of the observations to be made in a later connection will be applicable to this connection also.

The divisional opinion in the case at bar contains the assertion that in the case of Smith v. Wells, 326 Mo. 525,31 S.W.2d 1014, l.c. 1020, 1021 (1, 2), "an instruction in substance and effect the same as the instruction in the Causey case was considered at length and approved. The Causey case was not mentioned." A casual glance at the Smith-Wells case will disclose that there is no likeness between that case, on the one hand, and the Causey case and the case at bar on the other hand. No wonder the Causey case was not mentioned. In the Smith-Wells case the defendant's Instruction No. 4 was, in respect of the determinative facts, a complete converse of plaintiff's instruction which upon an affirmative finding of the matters hypothesized authorized a recovery under the humanitarian rule. It contained essential matter such as was omitted from the instructions in both the Causey case and the instant case. It told the jury that "if from a position of safety, the driver of the automobile drove upon the street car track immediately in front of or in close proximity to an approaching street car thereon at a time when the motorman operating the street car could not with the means at hand . . .avoid a collision with the automobile after he saw," actually or constructively that the automobile was going to enter aposition of danger, then "the verdict should be for defendant." (Italics ours.)

The Smith-Wells case points out the contrast between said instruction and an instruction condemned in the case of Shumate v. Wells, 320 Mo. 536, l.c. 543, 9 S.W.2d 632, which, as it happens, was almost a counterpart of defendant's instruction in the Causey case and authorized a verdict for defendant upon a finding that if "the automobile . . . was driven directly in front of or in such close and dangerous proximity to the approaching" street car that the motorman could not, with due care, with the means at hand have stopped the car in time to have avoided the collision. The instruction was condemned because themotorman was not required to make any effort to stop his car or check its speed until the automobile was driven directly infront of or in close proximity to it, whereas it was his duty toact as soon as it became apparent, from the movements of theautomobile, that the driver intended to cross ahead of the car.

Some of the supporting authorities cited in the majority opinion in the Causey case will now be examined. In Turnbow v. Dunham, 272 Mo. 53, 197 S.W. 103, defendant's instruction, in effect told the jury that before they could find for the plaintiff they must find that defendant's motorman was guilty of negligence in not taking such precautions as a reasonably prudent person would have done under the same circumstances, to avoid injuring the plaintiff, "after the motorman saw him in aposition of danger from being run over by the rear wheels of thecar, etc." The court inter alia (l.c. 64) said: "The motormancould have seen the child approach the track and come withindanger of the rear wheels had he been looking out at the child. Did ordinary care, under the circumstances, require him to look and see?" The court held it did, and held the instruction to be erroneous in omitting this important fact.

Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327, in the factual situation involved, is in most respects strikingly similar to the case now at hand. The court therein (l.c. 173) observed that had the driver of the motor truck discharged the duty resting upon him to look both laterally and straight ahead he would have discovered that a collision between the truck and the pedestrian was imminent, before the front of his machine passed the line of the latter's progress — that it was highly probable that the truck would run against the pedestrian, or the pedestrian unwittingly against the truck; that at least there was evidence tending to show such facts; and that the defendant's instruction ignored this essential phase of the case, and was therefore properly refused.

Other Missouri cases cited are Stewart v. Ry. Co., 188 S.W. 198, 199, 200; Nabe v. Schnellman (Mo. App.), 254 S.W. 731, 734; Saulan v. Ry. Co. (Mo. App.), 199 S.W. 714, 715. See, also, Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142, involving a collision between a pedestrian and an automobile, in which the court enunciated the same principle that was applied in the Causey case and certain other cases reviewed above. So also did Martin v. Fehse (Div. One), 331 Mo. l.c. 867, 55 S.W.2d 440, citing the Causey case among others of those reviewed above. The principles stated and applied in the majority opinion in the Causey case were later applied in Silliman v. Munger Laundry Co. (Div. Two),329 Mo. 235, 244-245, 44 S.W.2d 159, citing the former and citing also Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Burke v. Pappas. and Shumate v. Wells, supra, and Althage v. People's Motorbus Co., 320 Mo. 598, 8 S.W.2d 924, l.c. 927.

Thus it is seen that this series of decisions has painstakingly worked out and formulated this well-considered and distinctive body of law and established same as a safe and sound guide peculiarly adapted to Missouri's unique humanitarian doctrine and its practical and sound administration. I am impressed with the worth of these precedents and as a present co-administrator of this doctrine in this court I am unwilling to give my concurrence in what I deem to be its despoilation. Instructions of the general type of those discussed seem, from their frequent appearance in records brought to this court, designedly framed to accomplish indirectly that which cannot be directly accomplished; and they will, if approved by this court, emasculate the humanitarian rule, and I venture the prediction if part three of the present divisional opinion be adopted it will mean, as ere long will appear, the opening of Pandora's box.

Coming now to the record in the instant case, it seems advisable to expand slightly the outline given of it in the divisional opinion. The collision in question here occurred at, but not within, the street intersection proper formed by Grand Avenue, running north and south, and St. Louis Avenue, running east and west. The plaintiff's decedent, having walked along the sidewalk on the north side of the intersection from the northeast corner to the east curb line of Grand Avenue, proceeded to cross Grand in the crosswalk space in a line coincidental with said sidewalk. He walked very slowly, kind of bent down, and looked like an old man with his head looking to the ground, and kept on walking very slowly toward the west side of Grand Avenue until he reached the point of collision of himself and defendant Waldbauer's automobile. Waldbauer reached that point in driving his said car from the north alongside the track for cars southbound on Grand. The point of collision was in the crosswalk mentioned and close to the west rail of said street car track. To that point Waldbauer had driven his automobile in a straight and uninterrupted course close to said west rail. The street intersection was fairly well lighted. Waldbauer was able to see the traffic signal for southbound traffic half a black distant therefrom, and the car's headlights made objects visible a distance of fifty to sixty feet ahead, which was the width of St. Louis Avenue. Going at a speed of twenty or twenty-five miles an hour he could have stopped his car in ten feet. There was no eastbound traffic, and no southbound traffic ahead of him. The weather was clear and dry; the street paved and smooth and Waldbauer was familiar with the locality. During the decedent's continuous progress in his attempt to cross the street the traffic signal changed to "Go" for southbound traffic. The body of the deceased was dragged some forty feet by the impact of the subsequent collision and deposited about the center of St. Louis Avenue. The left front headlight of the car was bent back or turned. This change in the signal to "Go" occurred when Waldbauer was a short block from the crosswalk referred to and he was driving at a speed of twenty to twenty-five miles an hour, and he so proceeded to the point of collision. His counsel in argument to the jury, made and answered queries thus: "Is there any evidence in the case that shows that Mr. Waldbauer ever saw this man in a position of imminent peril when he knew he himself had the right of way? I say, gentlemen, there is not, and this whole case is left to mere conjecture on the part of the plaintiff, and they are trying to charge this man with such negligence that he killed a man. . . . What is the evidence about this portion of that instruction which says that William Waldbauer caused that machine to strike Borgstede? I say there is a total failure of proof." This constituted an important concession. Waldbauer, sworn as a witness for plaintiff, said he never at any time saw Borgstede as he (Waldbauer) approached the place of the occurrence; that the first time he saw him was "when he fell on my hood" and passed by the car on the left-hand side; that the headlight was bent by Borgstede catching it with his left hand when falling on the hood. There was a dent or so made on the cowl or fender by Borgstede's body. There was testimony from one eyewitness that the deceased was struck by or at the front of the car. Another eyewitness, who from time to time observed Borgstede in his progress over the crosswalk, testified he did not actually see the collision but that his attention was drawn to it by his hearing the impact. It seems that the deposition of this witness was taken shortly after the casualty. In his cross-examination at the trial he admitted that in his deposition he had deposed that he thought Borgstede walked into the side of the car. This was plaintiff's case and defendant's demurrer thereto was denied. The defendant offered no evidence and rested on plaintiff's. The case was submitted under the humanitarian doctrine.

From the record it is plain to be seen that, although plaintiff recovered a verdict, defendant's refused instruction would in a close case have been a serious handicap to a recovery. The instruction as framed was subject to the same criticism as that leveled in the Causey case and that expressed in this opinion. Even if it should be amended in the form suggested in the divisional opinion in this case I think it better not be given on a retrial of the case. The argument made to the jury, in part shown above, serves to show how purely subordinate bits of evidentiary facts may be made pivotal in importance by over-emphasis and by quibbling over them — when of no more real importance than the difference between tweedlee and tweedledum — to the omission or exclusion of essential issues. This casualty was a collision — nothing less — made up of contributing subordinate factors operating to one end. The word denotes the ultimate fact of which the evidentiary facts are component, such as the manner of the mutual and concurring contacts between the car and the man, and the attendant and immediately precedent circumstances, and is expressive of the mutual forcible meeting of two bodies moving along separate lines leading them to a common point of contact with each other. Ultimate facts are required to be pleaded. When that rule is observed the instruction may and, as experience has proven, should follow the same course. In such case the hypothesizing of an evidential fact, as in the present case and the Causey case, not only presents the faults we have earlier discussed but also carries an implication of fault or blame. Such expressions as "walked into the side of the automobile" do carry that implication and are usually designed to do so. For example: The morning paper carries as a headline, "Automobile Crashes Into Train!" What is the inference instantly drawn by the reader? Blame-worthy fault on the part of the driver of the automobile. This is a sweeping statement of the sum and substance of the collision. But does it give any intimation of the essential facts of the casualty as dependent upon by their evidentiary coloring? To ask is to answer the question.