Duebelbeis v. Dohack

615 S.W.2d 488, 1981 Mo. App. LEXIS 2782
CourtMissouri Court of Appeals
DecidedFebruary 24, 1981
DocketNo. 40974
StatusPublished
Cited by10 cases

This text of 615 S.W.2d 488 (Duebelbeis v. Dohack) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duebelbeis v. Dohack, 615 S.W.2d 488, 1981 Mo. App. LEXIS 2782 (Mo. Ct. App. 1981).

Opinion

STEPHAN, Judge.

This is a wrongful death action brought by the widow of decedent Kenneth Duebel-beis against Michael Dohack. A jury returned a verdict in favor of defendant Do-hack and against plaintiff Doris Duebelbeis. Plaintiff appeals. We reverse and remand for a new trial.

Plaintiff first contends that the trial court erred by “embellishing and adding its personal interpolation” to MAI 2.01. The reading of the instruction, which covers fifteen pages in the transcript, was interspersed with the court’s comments on a variety of topics including, for example, the unique vocabulary of the legal profession, the influence of media on jurors, the purpose of jury buttons and the reasons why objections are made. The practice of this trial judge to offer such comments has previously been disapproved in State v. Cross, 594 S.W.2d 609 (Mo. banc 1980), State v. Ward, 588 S.W.2d 728 (Mo.App.1979), Washington v. Sears, Roebuck & Co., 585 S.W.2d 137 (Mo.App.1979), and State v. Behrman, 613 S.W.2d 666 (Mo.App., 1981). See also Dorsey v. Robinson, 600 S.W.2d 59 (Mo.App.1980) where the court found the issue had not been preserved for review. The court in State v. Cross, supra, 610, after noting that the trial court’s desire to inform the jury of judicial routine was “commendable and understandable,” stated that “the delivering, as here, of lengthy oral explanations, talks, comments, chats, homilies or whatever they may be called, invites confusion and disagreement later among the jurors as to exactly what the judge did say and whether his oral remarks prevail over the written instructions or vice versa.” The judgment must be reversed and the case remanded for new trial.

Other issues likely to arise on retrial will be discussed.

Plaintiff also contends that the trial court erred in submitting an instruction based on the defendant’s theory that the decedent was contributorily negligent in failing to keep a lookout for vehicles approaching behind him. The evidence, viewed in a light most favorable to the defendant and to the submission, Rickman v. Sauerwein, 470 S.W.2d 487, 489 (Mo.1971), showed that decedent was walking east, facing traffic, on the north side of Kennerly Road in St. Louis County, Missouri at approximately 7:45 p. m. on November 28,1975. The road, a two lane thoroughfare, was wet, unlit by artificial street lights and marked with a white center line and white edge lines. It had a slight downhill grade at the accident scene. A “Pass with Care” sign cautioned eastbound motorists. The speed limit was thirty-five miles per hour. There were no shoulders or sidewalks alongside the road. Two to three inches of snow had accumulated on the roadside, and the snow extended onto the road in some places. It was dark and misting. Defendant offered no evidence of the width of the road. Plaintiff’s evidence was conflicting, placing the width at sixteen feet or twenty-two feet. Defendant was driving east on Kennerly Road in a 1973 Dodge maxivan with two passengers, his brother and a friend. In order to pass another eastbound automobile traveling thirty miles an hour, defendant pulled into the westbound lane at a speed of thirty-five to forty miles an hour. Immediately before defendant began to pass, the driver of the vehicle being overtaken sighted the decedent on the left edge of the roadway approximately one hundred feet to the east of him. As defendant drew abreast of the vehicle, defendant sighted the decedent at a distance estimated by him on one occasion at seventy-five and on another occasion at fifteen to eighteen feet. Defendant sounded his horn, applied his brakes, and attempted to turn the van to the right. The van skidded and the left front of the vehicle struck the decedent in the back, causing his death. During defendant’s efforts to pass the vehicle in front of him and to avoid striking the decedent, the decedent did not look behind him.

[490]*490The only evidence as to when defendant moved his vehicle into the westbound lane in relation to the time decedent was struck comes from the driver of the vehicle defendant wished to pass. As indicated above, shortly before defendant moved into the westbound lane, decedent was one hundred feet ahead of the vehicle to be passed. Even if defendant is given the full benefit of that distance (although it would be fair to assume that it would be substantially less by the time defendant moved into the westbound lane), all that can be said of the evidence is that it showed that for a period of less than two seconds1 the decedent failed to inform himself visually by a backward glance of the defendant’s approach. We do not believe such evidence supports an instruction submitting decedent’s contributory negligence.

While it is true that a pedestrian walking on a highway must exercise ordinary care for his own safety, “it is not as a matter of law the duty of a pedestrian while walking along the traveled part of a highway to turn about constantly and repeatedly to observe the approach of possible vehicles from the rear ...” McKenna v. Lynch, 289 Mo. 16, 233 S.W. 175, 176 (1921). See also Stollhans v. City of St. Louis, 343 Mo. 467, 121 S.W.2d 808, 810 (1938); Downey v. Frey, 269 Minn. 66, 130 N.W.2d 349, 352-353 (1964); Johnson v. Anoka-Butte Lumber Co., 141 Neb. 851, 5 N.W.2d 114, 118 (1942); Alden v. Coultrip, 275 Ill.App. 306, 316-317 (1934). That decedent failed for a period of two seconds to look behind him could not, as a matter of law, constitute contributory negligence; and it is axiomatic that the giving of such an instruction would require reversal in the event of a defendant’s verdict.

Under this point in defendant’s brief, arguments are made to the effect that the illumination of the highway by his low-beam headlights and the sounding of his horn triggered a duty on the part of decedent to learn of the impending danger. With respect to the illumination, there was no reason for the decedent to assume that its source was anything but a vehicle in the eastbound lane. More importantly, however, such warning as could have been afforded by the lights and the horn are of no avail unless there is evidence that decedent received such stimuli in time to take action to avoid injury. Robertson v. Grotheer, 521 S.W.2d 452, 460-461 (Mo.App.1975). There is no such evidence here. Moreover, taking into account the judicially noticed human reaction time of three-fourths of a second as well as defendant’s most generous estimate as to when he could first see decedent (seventy-five feet), he would have travelled a distance of approximately forty-four feet before he sounded the horn and a like distance (or slightly less, allowing for his ineffective effort at braking) before decedent could react and get out of defendant’s way.

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Bluebook (online)
615 S.W.2d 488, 1981 Mo. App. LEXIS 2782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duebelbeis-v-dohack-moctapp-1981.