Warren v. Weaver

343 S.W.2d 682, 1961 Mo. App. LEXIS 667
CourtMissouri Court of Appeals
DecidedFebruary 21, 1961
DocketNo. 30402
StatusPublished
Cited by9 cases

This text of 343 S.W.2d 682 (Warren v. Weaver) 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
Warren v. Weaver, 343 S.W.2d 682, 1961 Mo. App. LEXIS 667 (Mo. Ct. App. 1961).

Opinion

RUDDY, Judge.

This is an appeal in an action by plaintiff against defendant for damages for personal injuries sustained in an intersectional collision between automobiles operated by defendant and the husband of plaintiff. The verdict and judgment were for defendant and plaintiff appeals.

The only issue raised by plaintiff is that Instruction No. 4, given and read to the jury at the request of defendant, should not have been given.

At the threshold of our consideration of this appeal we are faced with a motion to dismiss the appeal, filed by defendant. As grounds for said motion defendant alleges that plaintiff’s (appellant’s) brief does not comply with Civil Rule 83.05(a) (3) and 83.05(e), V.A.M.R. The first three points of plaintiff’s brief, although ineptly drawn, do sufficiently present the point that Instruction No. 4 should not have been given because the evidence established negligence as a matter of law in that defendant’s evidence showed that defendant had failed to keep a proper lookout and had failed to see what was plainly visible.

The fourth point relied on by plaintiff is stated in her brief as follows: “D. Instruction No. 4, was misleading and confusing, and constitutes prejudicial error.” This point, as stated, is merely an abstract statement and does not specify in what way the instruction confuses and misleads.

In the case of Meierotto v. Thompson, 356 Mo. 32, 201 S.W.2d 161, loc. cit. 165, [683]*683appellant’s assignment in its brief read as follows:

“ ‘The Court erred in giving and reading to the jury instruction No. 1 (Objections and Ruling thereon, Tr. 229-232); (Instruction 1, Tr. 235, 236); (Ground 3, Motion for New Trial, Tr. 263); because:
“ ‘a. It is misleading, confusing and instructs on an abandoned issue.’ ”

In ruling on this assignment the court said, 201 S.W.2d loc. cit. 165:

“Such an assignment in the brief, under points and authorities, does not preserve anything for our review. It wholly fails to comply with rule 1.08 (a) (3), (Now Civil Rule 83.05(a) (3)) which requires the brief to contain, ‘The points relied on, which shall specify the allegations of error, with citation of authorities thereunder.’ Appellant has wholly failed to specify any allegation of error. It is impossible to discern from the assignment what point appellant wishes to present.”

In the aforesaid assignment in the Meier-otto case appellant presented even more than is presented in the assignment under review in the instant case. We overrule defendant’s Motion to Dismiss the Appeal but we do limit our consideration of this appeal to the contention presented by plaintiff’s first three points.

In view of the nature of our ruling it will be unnecessary to recite the evidence of the respective parties. It will be sufficient to state the specifications of negligence submitted to the jury and relied on by plaintiff in her verdict directing instructions and the specifications of “sole cause” negligence as submitted in defendant’s Instruction No. 4, the giving of which by the court is charged by plaintiff as constituting prejudicial error.

The collision of the automobiles which resulted in plaintiff’s alleged injuries occurred at the intersection of Temple and Minerva Avenues in the City of St. Louis. The husband of plaintiff was driving his automobile northwardly on Temple Avenue, a one-way northbound street, and defendant was operating his automobile west-wardly on Minerva Avenue, a two-way east and west bound street.

Instruction No. 1 offered by plaintiff and given by the court required the jury to find that defendant failed to keep and maintain a watch and lookout for vehicles being operated northwardly on Temple Avenue at or near its intersection with Minerva Avenue.

Instruction No. 2 offered by plaintiff and given by the court required the jury to find that defendant failed to exercise the highest degree of care in that he did not stop his said automobile or slacken the speed thereof when he could have done so.

Instruction No. 3 offered by plaintiff and given by the court required the jury to find “that on the occasion mentioned in the evidence, while defendant, Milton Weaver, was operating his automobile westwardly on Minerva Avenue and approaching the intersection with Temple Avenue, the automobile in which plaintiff was riding had then entered the intersection of said Temple Avenue and Minerva Avenue * * * and' * * * that the defendant failed to then yield the right-of-way to the automobile in which plaintiff was riding,” and if the facts hypothesized were so found by the jury, they were further instructed that the failure to yield the right-of-way was negligence.

The instruction charged by plaintiff as being erroneously given by the trial court is No. 4 which specified facts that if found by the jury required the plaintiff to yield the right-of-way to the defendant. Said instruction further required the jury to find that defendant was not negligent in any manner as submitted in the other instructions of the court and concluded with the direction that if the jury found the facts to exist as hypothesized, then their [684]*684verdict should be in favor of the defendant and against plaintiff.

Instruction No. 5 offered by plaintiff and given by the court instructed the jury that if they found from the evidence that the operator of the motor vehicle in which plaintiff was riding was negligent as submitted in Instruction No. 4 and if they further found that defendant was negligent in any respects as submitted in Instructions Nos. 1, 2 and 3, and that such negligence of the defendant directly concurred and combined with the negligence of the operator of the motor vehicle in which plaintiff was riding in causing the collision and injuries to the plaintiff, then they should “find the issue of sole cause in favor of the plaintiff, Ruth Warren, and against the defendant, Milton Weaver.”

The contention raised in plaintiff’s first three points, as we conceive it, is that it was error for the trial court to give a sole cause instruction where the evidence shows defendant is guilty of negligence as a matter of law in failing to keep and maintain a watch and lookout for the vehicle in which plaintiff was riding and, therefore, failing to see said vehicle when it was plainly visible. This contention would be a valid one for consideration if the matter contained therein had been timely raised by the plaintiff in the trial court and presented to that court for ruling thereon. A careful search of the record discloses that at no time did plaintiff request by motion or by instruction that the trial court direct a verdict in favor of plaintiff on the issue of negligence on the ground that defendant’s evidence showed as a matter of law that defendant failed to keep a proper lookout.

In the case of Robbins v. Robbins, Mo., 328 S.W.2d 552, plaintiff sued his own driver and the driver of another car for his personal injuries. He recovered a verdict and judgment against the driver of the other car. However, the jury found in favor of his own driver and plaintiff appealed from this judgment. Plaintiff in his appeal urged:

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Bluebook (online)
343 S.W.2d 682, 1961 Mo. App. LEXIS 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-v-weaver-moctapp-1961.