Worley Ex Rel. Worley v. Tucker Nevils, Inc.

BARDGETT, Judge

(dissenting).

I respectfully dissent from the holding in the principal opinion that the trial court erred in refusing to give the contributory negligence instruction offered by defendant and adopt as part of this dissent the following portion of the opinion in the Court of Appeals, St. Louis District, written by Smith, Presiding Judge of Division Two:

“Defendant also premises error on the refusal of the trial court to give a contributory negligence instruction offered by it. The proposed instruction was based upon M.A.I. 32.03 modified. It required a finding that plaintiff knew facts which made it reasonably apparent he was in immediate danger; that he had time to warn Young-blood and failed to do so and was thereby negligent. ‘Immediate danger’ is the M.A. I. Committee wording for what previously was called ‘imminent danger.’ ‘Imminent danger? is ‘certain and immediate danger’ and does not encompass remote or possible danger. In Happy v. Blanton, Mo., 303 S.W.2d 633 [9, 10], the duty of a passenger was stated as follows: ‘The duty of a guest, in the exercise of ordinary care, is to warn the driver of known imminence of danger, and, when the driver has been or is exercising a visible lack of caution, to take such action as an ordinarily or reasonable prudent and careful person would take under the same or similar circumstances, which could, among other things, include the maintenance of a lookout for dangerous situations.’

“Whatever Youngblood’s ‘tailgating’ may have been it did not create a situation of immediate danger until Birch suddenly stopped his car. Until that point it created a possible danger, but not a certain one. Defendant did not attempt to submit upon the absence of a visible lack of caution by Youngblood, but solely upon a failure to warn upon the appearance of immediate danger. Such a submission is unwarranted by the evidence. Defendant’s evidence was that after he stopped he observed the motorcycles already locked together and sliding out of control 200 feet behind him. This evidence does not establish that plaintiff ever was in immediate danger as a result of Birch’s stop. Plain *425 tiff’s evidence placed the Youngblood motorcycle 35 feet behind Birch at 35 miles per hour when Birch suddenly stopped. At that speed the motorcycle was traveling 51 feet per second, and there is no evidence that a warning could have averted the accident at that time. Nor is there any evidence that plaintiff was aware of any danger of which Youngblood was unaware. The court did not err in refusing defendant’s proffered instruction.”

My further reasons for believing that the court did not err in refusing the contributory negligence instruction are as follows :

Plaintiff’s theory of recovery as submitted in instruction No. 4 is that defendant suddenly slowed his automobile without giving a timely warning of such intent. It was essential to plaintiff’s case that the jury find that (1) the defendant suddenly slowed the car and (2) that defendant did not give a timely warning. All of plaintiff’s evidence was that (1) the motorcycles were following defendant at a distance of about 35 feet going about 30-35 miles per hour, (2) defendant was proceeding steadily at about that same speed, (3) that defendant had kept his brake lights on all the time he traveled the downhill S curve and the straight stretch of Highway 110 up to the time defendant suddenly slowed or stopped, (4) that the roadway is a rather steep downhill grade throughout the S curve and the straight stretch all the way to the collision point, and (5) that the approaching east-bound school bus did not put its stop board out but did have its flashing light on.

Defendant’s evidence did not contradict the plaintiff’s evidence as to the downhill grade or as to the fact that the brake lights on defendant’s car were on throughout the S curve and the straight stretch. However, the defendant’s evidence was completely at war with plaintiff’s theory. Defendant’s evidence was that he came to a gradual stop and that after he stopped he saw the motorcycles some 200 feet behind him locked together and sliding westward down the road. Defendant’s evidence was that the motocycles were not anywhere close to defendant’s car as defendant proceeded out of the curve and down the straight stretch.

There is nothing in defendant’s evidence that supports any finding that the plaintiff was in immediate danger 469 feet from collision point or at any other time by reason of the distance plaintiff’s motorcycle was following defendant’s car or the speed any vehicle was traveling. If defendant is correct, then plaintiff was injured for reasons having nothing to do with defendant’s conduct at all, — the motorcycles simply collided together some 200 feet east of defendant’s car, turned over, and hit the school bus. The principal opinion suggests that defendant can have the benefit of his testimony that he gradually slowed his car and did not suddenly stop and that the school bus had almost stopped in support of the contributory negligence instruction offered in this case.

I agree that a party is entitled to the benefit of his own testimony but here the basic concept needed to support the contributory negligence instruction is that the motorcycles were some 30-35 feet behind defendant’s car (not 200 feet) and that defendant suddenly slowed (not that he gradually slowed to a stop) and consequently I do not believe that defendant’s evidence can be considered as giving any support to the contributory negligence instruction. This is because defendant’s evidence is completely at war with the evidence necessary to support the contributory negligence concept embodied in that instruction in this case. No one suggests that if the motorcycles were 200 feet behind defendant there would have been any need for plaintiff to warn his driver of the presence of defendant’s vehicle some 200 feet down the road.

When did the immediate danger of injury occur in this case? First of all, no one contends there would have been any injury if defendant’s car had continued on past *426 the school bus. Second, there is no contention that plaintiff was entitled to a verdict if defendant came to a gradual, normal stop. Instruction No. 7 told the jury that their verdict must be for defendant if they did not believe driver Birch was negligent as submitted in instruction No. 4. Instruction 4 authorized a verdict for plaintiff only if the jury found that Birch suddenly slowed his car without giving an adequate warning.

The principal opinion’s holding that there was a continuing immediate danger because the motorcycles were following the car at a distance of about 30 feet, while the car continued to have its brake lights on, and the bus was approaching with its flashing lights on, is premised on the conclusion that this situation could reasonably indicate that the car might stop at any time. I agree that the situation was such that the car might be stopped at some time, but that alone would not present any immediate danger if the car came to a normal or gradual stop. There is no evidence that if the car had come to a normal stop the motorcycles could not have done the same, in which case there would have been no accident at all. The principal opinion, however, after stating that the circumstances indicated that the car might stop, immediately proceeds to suggest that knowledge that a car might stop is knowledge that the driver will violate the law by suddenly stopping without giving an adequate warning. In so doing, the principal opinion seems to consider a normal, gradual stop to be the same as a sudden, abnormal stop. Common experience dictates that automobiles frequently follow rather closely and particularly when approaching a stop sign or in heavy traffic. In these circumstances, the following driver realizes the car ahead may stop at some point but does not anticipate that the lead car will stop suddenly for wholly unpredictable, un-f orseeable and unapparent reasons.

In the instant case, the proffered instruction requires plaintiff be possessed of certain knowledge which is broadly stated in the instruction and perhaps even constitutes a roving commission to the jury. In any event, the instruction requires a finding that “plaintiff knew facts from which it was reasonably apparent that he was in immediate danger.” (Emphasis added.) What facts did plaintiff know? He knew that the motorcycle was going about 35 miles per hour about 30 feet behind a car traveling at the same speed on a downhill road and that the car had its brake lights on for about one mile and that nothing untoward had occurred. He knew there was a school bus approaching with its flashing lights on and that the school bus would stop at the White family’s driveway; that the stop board of the bus was not put out; that the bus was still going about 15-20 miles per hour at the time the defendant’s car suddenly stopped; that the defendant’s car came to this stop at or near a speed restriction caution sign 100 feet or more (actually 103 feet) past (west) of the White driveway; that plaintiff had ridden school buses since the first grade of school and had never seen a car stop just because the flashing lights of the bus are on; that cars stop only after a bus stops and after the stop board on the bus is put out; that plaintiff’s driver Youngblood also knew the bus would stop at the White driveway; and that at the time the defendant’s auto suddenly stopped, defendant’s automobile and plaintiff’s motorcycle had already passed the White driveway.

The refused instruction stated that the term “negligence” as used therein “means the failure to use that degree of care which an ordinarily prudent boy of the same age, capacity, and experience would use under the same or similar circumstances.” There is nothing in plaintiff’s evidence or defendant’s evidence which supports a finding that plaintiff knew facts from which it was reasonably apparent that he was in immediate danger — that he knew facts from which a boy of his age, capacity, and experience would know that the defendant’s car would suddenly stop. To the contrary, plaintiff’s testimony dem *427 onstrated that from his experience he would reasonably believe the defendant’s car would not stop at all, much less suddenly stop.

Was there any other substantial evidence which would support the finding required by the refused instruction?

The State Highway patrolman who testified stated that school bus drivers are instructed by the Highway Patrol that cars are not to stop on the highway when the bus just has its flashing warning lights on; that it is legal for an automobile driver meeting a school bus which has its flashing lights on to continue on and pass the bus; that the standard procedure is to stop only when the bus is completely stopped and the stop board is out. The patrolman also stated that his personal experience is that if a car has its brake lights on that he would not be surprised if it suddenly stopped.

The defendant testified that the bus had its flashing warning lights on but the stop arm had not been put out and that he would not stop if only the flashing lights were on; that he stopped because the school bus actually stopped and that his (defendant’s) stop was gradual and not a sudden stop.

I do not believe that the mere isolated personal experience of a State Highway patrolman constitutes evidence that, when brake lights are on over a long distance on a downhill grade under the circumstances of this case, an ordinarily prudent person would reasonably expect that car to suddenly stop on the highway for no apparent reason. I say “no apparent reason” because all of the evidence is that a car would not stop and would not be expected to stop, either gradually or suddenly, when approaching a moving oncoming school bus that has its flashing warning lights on, and this, it seems to me, is the dominant fact that plaintiff knew. Plaintiff was corroborated in this belief by the highway patrolman’s testimony that a car would not stop just because the flashing lights of the bus were on, as well as the testimony of the defendant who stated he stopped because the school bus was stopped and not just because the bus had its flashing warning lights on. But defendant cannot utilize his own testimony that the bus had stopped and he thereafter gradually stopped in support of the contributory negligence instruction in this case because as a part and parcel of defendant’s position is his testimony that after he stopped the two motorcycles were still 200 feet behind him and had already collided with each other. As stated supra, the account of this accident as given by defendant is completely at war with the account given by plaintiff and all of the other evidence in the case.

Thus the case is reduced to a situation, with respect to the contributory negligence instruction, to one where a lead automobile traveling at about 30-35 miles per hour which has had its brake lights on over a considerable distance because it is going down a steep hill stops suddenly on an open highway for no apparent or forseea-ble reason at a time when two motorcycles are about 30 feet behind it traveling at the same speed as the car. When, then, did the immediate danger arise? In my opinion it arose when defendant’s car suddenly reduced speed and stopped. What facts could plaintiff have known that would lead him to believe that the car would suddenly stop? In my opinion, there were no facts from which plaintiff could have known defendant’s car would suddenly stop prior to the sudden stop itself. And there was no evidence that the motorcycle drivers could not have safely stopped had defendant’s car made a normal, gradual stop. What could plaintiff have done or said after the defendant’s car started to suddenly stop to avoid injury to himself? In my opinion, absolutely nothing.

For these reasons I believe that the court did not err in refusing to give the contributory negligence instruction.

During oral argument, appellant withdrew point V of its brief which is “The *428 verdict is so grossly excessive as to indicate bias, passion and prejudice on the part of the jury; and in the alternative, the verdict is excessive by $65,000.”

I agree that the courts of appeals must continue to entertain and adjudicate contentions of excessiveness which involve re-mittitur unless and until this court decides otherwise. However, I join in the view of Donnelly, C. J., that this is not an appropriate case to determine the question of whether Missouri should continue to allow appellate courts to order a remittitur when the appellate court concludes a verdict is excessive.