Harris v. Quality Dairy Co.

423 S.W.2d 8, 1967 Mo. App. LEXIS 578
CourtMissouri Court of Appeals
DecidedNovember 21, 1967
DocketNo. 32713
StatusPublished
Cited by9 cases

This text of 423 S.W.2d 8 (Harris v. Quality Dairy Co.) 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
Harris v. Quality Dairy Co., 423 S.W.2d 8, 1967 Mo. App. LEXIS 578 (Mo. Ct. App. 1967).

Opinion

SAM E. SEMPLE, Chief Judge.

This is a suit to recover damages for personal injuries suffered by plaintiff and damage to his automobile as a result of a rear end collision. Plaintiff obtained a verdict in sum of $4,000 for personal injuries and $175 for damages to his automobile. Defendant appeals from the judgment rendered on the verdict. The parties will be generally referred to as they were designated in the trial court.

The collision occurred on Page Avenue in the City of St. Louis while both plaintiff’s automobile and defendant’s truck were traveling west. Plaintiff was following a public service bus and defendant’s truck was following plaintiff immediately before the collision. The bus pulled over and stopped to discharge passengers.

Plaintiff’s version of the facts were these: He followed the bus in the right lane of traffic and when the bus stopped to discharge passengers he stopped about 30 feet directly in back of the bus and turned on his left turn blinker light so that when the traffic in the next lane to his left cleared he could pull out and go around the bus. He looked in his rear-vision mirror and saw defendant’s truck approaching from the rear at about 30 miles per hour about four car lengths back of his car, that he looked away and shortly his car was struck in the rear by defendant’s truck. That after the collision his car was about 10 feet from the rear of the bus. Plaintiff stated that all the time he was stopped back of the bus he was sitting in his car with it in gear, with his brakes firmly set and his left blinker light turned on.

Defendant’s version of the facts were that: The bus which plaintiff was follow[10]*10ing pulled over to the curb to discharge passengers and when it stopped only about two feet of the rear end of the bus remained in the lane that both plaintiff and defendant’s truck were traveling. Defendant’s driver testified that when the bus pulled over to the curb to discharge passengers he thought that plaintiff was going to proceed on going straight and when plaintiff came to a sudden halt his truck hit the rear of plaintiff’s car. Defendant’s driver also testified that plaintiff gave no signal that he was going to stop or turn left before he stopped his car and that plaintiff’s car was alongside the bus with the rear end of the car even with the rear end of the bus when plaintiff stopped just prior to the collision.

Plaintiff submitted his case under the rear end collision doctrine and a contributory negligence instruction was given on the theory plaintiff stopped without first giving an adequate and timely signal of his intention so to do. Defendant requested and the trial court refused to give Instruction No. G, which reads as follows:

“Your verdict must be for defendant if you believe:
“First, Plaintiff was negligent as submitted to you in Instruction No_, and
“Second, defendant was negligent as submitted to you in Instruction No. _, and
“Third, Such negligence of both plaintiff and defendant combined and concurred to cause directly and proximately the collision mentioned in evidence.”

Defendant contends that the trial court erred in refusing to give Instruction G and argues that one of the rights belonging to defendant is that if the evidence established that if both plaintiff and defendant were guilty of proximal, causal, mutual and concurrent negligence then plaintiff cannot recover against defendant. Defendant argues that this is a matter of substantive right in which he was entitled to have Instruction G separately submitted to the jury in addition to the contributory negligence Instruction No. 5 which was given to the jury by the court. Defendant relies on a line of cases involving the contributory negligence of a plaintiff, wherein the negligence of a defendant in that affirmative defense is presupposed. Citing Doisy v. Edwards, Mo., 398 S.W.2d 846; Hornstein v. United Rys. Co. of St. Louis, 97 Mo.App. 271, 70 S.W. 1105; Tillman v. St. Louis Transit Co., 102 Mo.App. 553, 77 S.W. 320; Rodgers v. St. Louis Transit Co., 117 Mo. App. 678, 92 S.W. 1154, 1156; Schaabs v. Woodburn Sarven Wheel Co., 56 Mo. 173, 174.

It is true that no one can recover for an injury of which his own negligence in part or in whole was the immediate and proximate cause. Schaabs v. Woodburn Sarven Wheel Co., supra; Doisy v. Edwards, supra. However, it has been held that the better practice is to give only one instruction fully and clearly covering the subject of contributory negligence than to-give a number of instructions with useless repetitions using the term concurrent, etc., Jones v. Rash, Mo., 306 S.W.2d 488, 492; Barr v. Missouri Pac. R. Co., Mo., 37 S.W. 2d 927, 930.

In this case the defendant requested and the court gave Instruction No. 5 covering its defense of contributory negligence which read in part as follows:

“Your verdict must be for the defendant, whether or not defendant was negligent, if you believe: * *

This instruction clearly and succinctly directed the jury to find for the defendant “whether or not defendant was negligent” if they believed the stated facts-that plaintiff was guilty of contributory negligence. The instruction covered the situation where the jury could find both parties negligent. The giving of Instruction G would have been repetitious and the trial court properly refused the instruction.

[11]*11Defendant next assigns as error the giving of Instruction No. 4 because it permitted the jury, in determining the damages to be awarded plaintiff, to take into consideration future pain and suffering when defendant asserts there was no evidence tending to establish that plaintiff would suffer in the future. At the trial plaintiff testified that prior to the accident on June IS, 1964, that he had never had any difficulties with his back, neck or shoulders and that he had never seen a doctor for any condition relative to his back, neck or shoulders. That at the time of the trial on May 2, 1966, plaintiff testified that he still had headaches and that he had pains that started in his neck and went all the way down to the lower part of his back. Dr. Hoard testified on behalf of plaintiff that he first treated plaintiff on the evening of the day of the accident. That his diagnosis was that plaintiff had a cervical sprain and strain, a lumbar sprain and a sprain of the right shoulder. That he gave plaintiff cortizone, a muscle relaxant, and ultrasonic treatments to the back, neck and shoulder. That he saw plaintiff 18 times within the two months following the accident giving ultrasonic treatment and medication for pain. That he examined plaintiff on the Saturday before the trial and plaintiff still complained of pain in the back and neck. Dr. Hoard gave the following testimony as to future pain:

“Q. Now, Doctor, would you now assume further and assume these statements as fact, that he has had this continuing pain since June 15 of 1964, referable to his back, shoulders and neck, and assume that this pain and discomfort is continuing until the present date; based upon reasonable medical certainty, if you have an opinion, do you have an opinion as to whether these injuries are permanent? A. Yes Q. All right. Will you tell the jury what your opinion is, based upon reasonable medical certainty? A.

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Bluebook (online)
423 S.W.2d 8, 1967 Mo. App. LEXIS 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-quality-dairy-co-moctapp-1967.