Bougeno v. Thompson

HENLEY, Judge. This is an action for damages for injury to plaintiff and his automobile arising out of a collision with defendant’s automobile at the intersection of two streets in St. [507] Louis county. Trial to a jury resulted in a verdict and judgment for plaintiff for $5500. The trial court granted defendant a new trial because it had given an erroneously modified MAI1 instruction and plaintiff appealed to the Missouri Court of Appeals, St. Louis District. That court affirmed the order of the trial court, but not for the same reason. On application of plaintiff, we ordered the case transferred here and consider and decide it as if the original appeal had been direct to this court. Mo.Const. Art. V, § 10, V.A.M.S. The case was submitted to the jury on both primary and humanitarian negligence. The humanitarian verdict directing instruction given by the court was MAI 17.15 which submitted that defendant could have avoided injury to plaintiff by either swerving or stopping, except that the approved instruction had been modified by adding to the word “swerving” the words “to the right.” Thus, the instruction told the jury that it could find for plaintiff if it believed, among othef things, that defendant could have avoided the collision by either swerving to the right or stopping, but negligently failed to do so. The issue presented is whether the addition of the italicized words was a necessary modification of the approved instruction' and, therefore, permissible, or an impermissible deviation therefrom and, therefore, error presumptively prejudicial. Rule 70.01.2 We affirm, holding that the modification was unnecessary and an impermissible deviation from the approved instruction. The collision occurred Saturday, March 16, 1968, shortly after 11 a. m., in the northwest quadrant of the intersection of Bentley Manor Drive and Centurion Drive, an uncontrolled right-angle intersection in a residential area of St. Louis county. The day was clear, visibility good, and the streets dry. Bentley Manor, a concrete street, runs north and south. It is 28 feet wide from curb to curb with two 14 foot lanes for travel. Centurion, also of concrete and 28 feet wide, runs east-west. Centurion is level east of Bentley. Bentley is slightly up-grade from south to north until it levels off at a point a few feet south of the intersection. The intersection is level. The speed limit on both streets is 25 miles per hour. At the time of the collision, plaintiff was en route from his home to visit a friend. He was driving his Valiant automobile and his route took him west on Centurion toward Bentley. At approximately one block east of the intersection, his speed was 25 miles per hour. By the time he reached a point about 30 feet east of the intersection he had reduced his speed to 20 miles per hour. Because of the level of the terrain south of Centurion and east of Bentley, a motorist traveling west on Centurion can see very little of Bentley until he reaches a point approximately 45 feet east of the intersection. At this point and again at a point 30 feet east of the crossing, a westbound motorist can see vehicles on Bentley as much as 50 or 60 feet south of the intersection. Plaintiff testified that he first saw defendant’s automobile when he (plaintiff) was approximately one to two car lengths (which he estimated at 15 to 30 feet) east of the intersection; that at that time defendant was about 60 feet south of the intersection, had applied his brakes, had swerved to his left, and was skidding toward the northwest corner of the intersection; that he (plaintiff) was then traveling in the north or westbound lane of Centurion ; that he applied his brakes, swerved right, and skidded toward the point of collision in the northwest quadrant of the intersection ; that at impact he had slowed to 5 miles per hour; that the collision occurred west of but “close to” the center line of Bentley and north of the center line of Centurion when the front of his automobile was about four feet into the north [508] west quadrant; that defendant’s automobile struck the left side of his automobile at a point near and below his “vent window,” but that he does not know what part of defendant’s automobile struck his. Plaintiff further testified that there were no “* * * vehicles, or [other] * * * type of physical obstruction * * * in that intersection * * *” and therefore there was “room for [defendant] to swerve to the right * * *” instead of to the left. Skid marks 24 feet long made by the front wheels of plaintiff’s automobile began at a point approximately 10 feet east of the east line of Bentley and ran west and northwest into the intersection. Skid marks 62 feet long made by the front wheels of defendant’s automobile began in the east lane of Bentley at a point approximately 40 feet south of the south line of Centurion and ran in a straight line north and northwest into the northwest quadrant of the intersection. Defendant had left his sister’s home located on Bentley one block south of Centurion and was driving his Chevrolet automobile north, en route to his home at the time of the accident. He testified that just before he saw plaintiff he (defendant) was traveling north at 25 miles per hour in the east or curb-lane of Bentley with the right side of his automobile about 1 or 2 feet “from the curb” and its left side 3 or 4 feet from the center of the street; that he first saw plaintiff when he (defendant) was approximately 60 feet south of the intersection and plaintiff was east of the intersection traveling west; that he “hit [his] brakes” and swerved left as soon as he saw plaintiff’s automobile; that he kept his brakes applied until the vehicles collided and his automobile skidded or slid forward in a north-northwest path from the moment his brakes took hold; that his swerve to the left was made to try to get away from plaintiff who was approaching the intersection from his right; that as the front of his Chevrolet crossed over into the intersection, plaintiff was still back east of the intersection “just a little bit” and was slowing down; that as plaintiff entered the intersection he slowed more and “just before the collision, he [plaintiff] swerved to the right;” that the collision occurred in the northwest quadrant of the intersection, close to the center line of Bentley; that the “right corner” of his front bumper struck the left side of plaintiff’s automobile; that when the vehicles stopped after the impact, the left end of his front bumper extended one or two feet across the center line into the west lane of Bentley. Defendant further testified that the only vehicles in or near the intersection immediately before or at the time of the collision were his Chevrolet and plaintiff’s Valiant; that had he stayed in the east lane he “* * * would have hit [plaintiff’s] rear end * * *» an(j had he swerved or turned right into Centurion, he “* * * would have hit [plaintiff] head-on going around the corner”; that he had swerved left and was skidding in a northwestwardly path and once he got into the intersection, he did not then “* * * have room to stop [the northwestwardly skid] and turn [toward the east].” The parties agree in their briefs that defendant swerved to his left. The evidence supports that agreement and it is obvious that it would support a finding that he so swerved as soon as he knew or could have known of plaintiff’s position of immediate danger. Plaintiff contends that under the facts in this case, modification of MAI 17.-15 was necessary if the instruction was to present fairly his theory of the case: that defendant should have swerved to the right instead of to the left and was negligent in failing to do so. In this connection, plaintiff asserts that the modification made complied in all respects with the guidelines for modification prescribed by Rule 70.-01 (e) and he argues that for these reasons the court erred in granting defendant a new trial on the ground that the giving of this instruction was prejudicial error. [509] Defendant contends that MAI 17.15, as approved, was applicable to the facts of this case, that it did not require modification, and that Rule 70.01(b) mandated that it be given to the exclusion of any other. Defendant contends also that the modification by addition of the italicized words was not only not necessary to submit the issues fairly, but that it resulted in an unfair and not impartial submission, and invaded the province of the jury. This court said in Brown v. St. Louis Public Service Co., 421 S.W.2d 255, 259[3] (banc 1967), that “ * * * where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation.” Obviously MAI 17.15 is an instruction applicable to this case and admittedly the instruction given deviated therefrom by adding the words “to the right.” Plaintiff does not attempt to demonstrate that no prejudice could have resulted from the deviation. Instead, he confines himself to an effort to show that the applicable instruction needed modification if it was to submit fairly the issues under the facts in this case. His position is that the issues are whether defendant could have avoided the collision by swerving to the right instead of to the left and negligently failed to do so; not whether he could have avoided the collision by swerving in either direction, as MAI 17.15 would have submitted the issues. He argues that since the evidence is that defendant did swerve to the left, the instruction required modification, because, without modification, defendant could argue to the jury that all the instruction required was that he swerve, that he did swerve and, therefore, he had done all the judge said the law required of him. We recognize that such an argument could be effective. We recognize too, defendant’s suggestion that under the instruction, as modified, an argument by plaintiff could be effective, which implied that since the instruction speaks only of avoiding the collision by swerving to the right, the judge has in effect said to the jury that a swerve to the left in this case was not permissible under the law; therefore, defendant’s swerve to the left was negligent. In general, the humanitarian doctrine requires a defendant to follow his discovery of plaintiff’s position of immediate danger by doing all a very careful and prudent person would do under the circumstances effectively to avoid injury to the plaintiff. This question of whether defendant has done all such person would do is generally one for determination by the trier of facts. And, of course, in the determination of this question the jury is, under our practice, limited to consideration of whether injury could have been avoided by use of the particular means submitted. The MAI humanitarian instructions authorize the use of these words to submit the means by which defendant could avoid the injury: “stopping, swerving, slackening his speed, sounding a warning” (see para. 4, Notes on Use, MAI 17.14) and by combinations of those acts or means in the disjunctive or conjunctive. To submit “swerving” as one means permits the jury to consider and determine not only whether injury could be avoided thereby, but, if so, the direction in which defendant, in the exercise of the highest degree of care under the circumstances, should have swerved and, if he swerved in that direction, whether he swerved sufficiently. This submission also permits the jury to determine (where defendant had swerved) whether the direction in which he swerved was the direction in which a very careful and prudent person would have swerved under the circumstances. The philosophy of MAI contemplates that such matters as the direction in which a defendant could and should have swerved and the sufficiency of his swerve are better left to proper argument to the jury. To submit “swerving to the right” as the means of avoiding injury necessarily limits the factors the parties [510] are entitled as a matter of substantive right to have the jury consider in determining whether defendant was negligent. The addition of the words “to the right” unfairly favors the proponent of the instruction because the jury reasonably could infer from this specification of the action defendant could have taken, that the action he did take was negligent. Whether the action defendant did take in swerving was negligent, was a question for determination by the jury, and in this case the instruction’s elimination of that question invaded the jury’s province. For the reasons stated, we hold that the modification was unnecessary and an impermissible deviation from the approved instruction. The order of the trial court granting a new trial is affirmed. DONNELLY, C. J., and MORGAN, HOLMAN and FINCH, J J., concur. SEILER, J., concurs in result in separate concurring opinion filed. BARDGETT, J., dissents in separate dissenting opinion filed. Footnotes [1] Missouri Approved Jury Instructions, second edition. [2] References to rules are to Missouri Supreme Court Rules and V.A.M.R.