author: HOGAN, Judge.

text:
    Howard T. CLUCK, Plaintiff-Respondent, v. Edward SNODGRASS, Defendant, and Ruth E. Wiley, Defendant-Appellant.
    No. 8277.
    Springfield Court of Appeals. Missouri.
    Aug. 20, 1964.

      F. William Joyner, William P. Sanford, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for defendant-appellant.
    William A. R. Dalton, B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff-respondent.
   HOGAN, Judge.

This is an action for damages for personal injuries sustained in a vehicular collision. The jury has returned a verdict for the plaintiff and against both defendants in the amount of $3,250.00. After an unavailing motion for new trial, defendant Ruth E. Wiley has appealed.

The accident in question occurred about 1:00 P.M. on September 27, 1961, on U.S. Highway No. 65, near Highlandville, Missouri. The highway, at the place in question, is a “winding” bituminous or blacktop road. Generally speaking, it runs north and south, and is so treated by the parties. At the time, a light rain was falling and the pavement was wet. As the appellant is at some pains to point out, the accident involved three vehicles and two collisions. The accident happened on a curve which bears to the left (east) as one is traveling south; defendant Wiley was going south, followed by the plaintiff, and defendant Snodgrass was traveling north. The Snodgrass vehicle collided with Mrs. Wiley’s automobile on the curve and then struck the plaintiff’s truck. Though the force of the evidence is vigorously disputed, it was the plaintiff’s theory that because both Mrs. Wiley and Mr. Snodgrass were driving too near the center of the road, the Snodgrass vehicle sideswiped Mrs. Wiley and caromed or rebounded into the plaintiff’s truck.

Plaintiff, a 52-year-old laundry sales driver, testified that on the occasion in question he was working in his “south territory,” which took him to several points south of Springfield, Missouri. He was driving south — toward Highlandville — following Mrs. Wiley, who had passed him a short distance north of the place of the accident. Mr. Cluck, who was traveling alone, was driving what he described as an International “metro-body step-van” truck, which we take as a vehicle specially adapted for pickup and delivery service. Both Mrs. Wiley and plaintiff were traveling at a fairly constant speed of about 35 to 40 miles an hour, and Mr. Cluck estimated he was following Mrs. Wiley at a distance of 125 to 175 feet. Mr. Cluck testified that the Wiley vehicle was visible to him at all times.

The curve or bend in which the casualty occurred was described by plaintiff as being a “winding curve * * * a left turn when you are headed south.” When Mrs. Wiley “went into the curve, she was on her side,” but as she “got out into the bend of it, she had pulled across the yellow line.” As the plaintiff related the matter, “when she [Mrs. Wiley] got into the deep part of the curve, here come a car over the hill [Snodgrass]” “riding the center line, and I thought they were going to hit head-on. % * * Plaintiff then applied his brakes and turned right onto the shoulder; but defendant Snodgrass’ vehicle “glanced off” Mrs. Wiley’s car and “headed right at” him. Mr. Cluck then attempted to turn further to the right, but the Snodgrass vehicle struck plaintiff’s truck, throwing the plaintiff first against a metal towel rack inside his truck, and down into the step-well beside the front door. Mr. Cluck estimated that he was “up to within about 75 feet of” Mrs. Wiley when the Snodgrass vehicle collided with her.

Mrs. Wiley’s testimony in some respects corroborates, or at least is not substantially different from, the plaintiff’s. Mrs. Wiley was returning to Branson, some distance south of Highlandville. She was accompanied by her husband. Driving at a speed of about 35 to 40 miles an hour, she proceeded into the curve and" observed the Snodgrass car, some 100 feet to the south, “straddling the double yellow line,” with “the left side of his car * * * well over the double yellow line.” Mrs. Wiley was, in her words, “in the center of the right lane.” She then “instinctively pulled to the right,” but though she turned aside and managed to get her right wheels off the pavement onto the right shoulder, the Snod-grass vehicle struck her. Mrs. Wiley testified that she did not see the second impact or collision. Mrs. Wiley’s husband, who was riding with her, corroborated her testimony to the effect that the Wiley vehicle was at all times in its proper lane; Mr. Wiley’s testimony was that his wife was “in the middle of her half of the road.”

Defendant Snodgrass, who had defaulted, and against whom a default judgment was taken, testified in response to plaintiff’s subpoena. His recollection of the surrounding circumstances of the accident was generally the same as that of the plaintiff and defendant Wiley, except that he testified that Mrs. Wiley’s car was “just on the center line” when he first saw it and that he was in his proper lane (going north) when he first saw Mrs. Wiley’s car. At that time, the Wiley vehicle was 45 to 50 feet away and Mr. Snodgrass stated that the “front end and hack end” of his car collided with Mrs. Wiley’s; he then “scooted on across and bumped into this truck.” Mr. Snodgrass minimized the impact with the Cluck vehicle, stating that his speed was probably 10 miles per hour after the first collision and that he “just barely hit him [plaintiff] at the door.” After the second collision, Mr. Snodgrass came to a stop on the road within 15 feet.

The plaintiff appears to have sustained no permanent injury, at least according to the medical testimony. However, for a time after the accident, he was unable to perform all the duties required of him without assistance, and for several months after the accident he appears to have suffered pain and soreness in his neck. The record reflects that he had, at trial time, been examined by two admittedly well-qualified physicians, both of whom characterized his injury as a mild to moderate cervical or neck strain, with accompanying pain and inflammation spasm.

Appellant Wiley’s first point, which she has argued at length in her brief and before this court, is that the plaintiff failed to establish a direct and proximate causal relationship between her negligence, if any, and the collision of the Snodgrass and Cluck vehicles. Pointing to the fact that the evidence does not show precisely the movements of the Snodgrass vehicle after the first collision, nor the effect of the impact upon Snodgrass or his vehicle, she argues that there is no evidence to show a positive connection between the two collisions.

Granting that the subject of proximate cause is a matter of some complexity, we consider the appellant’s argument in this respect to be somewhat overstated. Taken most favorably to the plaintiff, the evidence indicates that he was following Mrs. Wiley south on Highway 65 at a moderate rate of speed as she entered a curve bearing to the left. Snodgrass was approaching from the opposite direction. From the plaintiff’s testimony, the jury could have found that as Mrs. Wiley “got into the bend” of the curve, she “had pulled across the yellow [median] line,” and that Snodgrass, as he approached from the opposite direction, was “riding the yellow line,” so that it appeared the two vehicles would collide head on. Snodgrass’ testimony was that he was on the “right hand side” but that Mrs. Wiley was “just on the yellow line.” Mrs. Wiley testified that she was in her own lane but that Snod-grass was “straddling the double yellow line” with the left side of his car “well over” the double yellow line. It is not disputed that the Snodgrass and Wiley vehicles did collide, nor, as we understand the record, is there any indication that the collision was caused by something other than the conduct of one or the other, or both, of the defendants in operating their respective automobiles. We are therefore of the opinion that a jury could infer that either Mr. Snodgrass or Mrs. Wiley, or both of them, were negligent in causing the first collision. Burr v. Singh, 362 Mo. 692, 698-699, 243 S.W.2d 295, 299-300.

At the time of this first collision, the plaintiff testified that he was “up to within 75 feet” of the Wiley automobile, and it is inferable from Snodgrass’ testimony that plaintiff was somewhat closer, possibly within 45 to 50 feet. Plaintiff, describing the collision as a “sideswipe,” said that after the first impact “the [Snodgrass] car glanced off Mrs. Wiley’s car * * * and it headed right at me.” Snodgrass described the matter in much the same way; he said that the “front end and back end both” [of his vehicle] struck Mrs. Wiley’s car. We cannot agree with appellant’s argument that this first impact was insubstantial; Snodgrass testified that when jhe struck Mrs. Wiley he was going 30 miles an hour, and when he struck Mr. Cluck he was going “probably 10 miles an hour,” although he “didn’t apply no brakes.”

After the first impact, Snodgrass stated that his vehicle “scooted on across and humped into this truck.” It was his testimony that plaintiff was “coming on around the curve * * * trying to get off out of the way * * * as far as he could.” Plaintiff’s testimony was that he had “braked my truck and * * * had the wheels practically off the blacktop, and * * * the Chevrolet [Snodgrass’ car] * * * headed right at me.” The Snod-grass vehicle “stopped at the side of me [plaintiff] after he hit me.” Snodgrass testified that he stopped within “about fifteen feet” after striking the plaintiff. Mrs. Wiley did not see the second collision and had momentarily “lost him [plaintiff] in my rearvision mirror,” but until she started into the curve she could “see him in [the] rearvision mirror most of the time.”

Without attempting to state all the inferences possible upon such a state of fact, we believe it could be inferred here that defendant Wiley’s negligence was a substantial factor in producing the second collision, even though it may be true that other causes contributed to produce the second impact. As this court has pointed out, causal connection need not be established by direct and positive evidence but may be shown by proof of facts and circumstances from which such causation may reasonably be inferred. Leek v. Dillard, Mo.App., 304 S.W.2d 60, 65 [10]. Moreover, it is usually sufficient to constitute proximate cause that the negligence charged was an efficient cause which set in motion the chain of circumstances leading to the injury or damages, Floyd v. St. Louis Pub. Serv. Co., Mo., 280 S.W.2d 74, 78 [8], and defendant Wiley would be liable if her negligence combined with other causes to produce the plaintiff’s injury, even though her negligence was not the sole proximate cause. Gaines v. Property Servicing Co., Mo., 276 S.W.2d 169, 173-174 [3-5]; Caldwell v. St. Louis Pub. Serv. Co., Mo., 275 S.W.2d 288, 292-293 [4, 5], Whatever may have been the natural forces acting upon the Snodgrass vehicle after the first impact, and Snodgrass’ condition after the first collision — he testified he got out of his car and pushed the plaintiff’s truck — -we consider a jury might reasonably have found that Mrs. Wiley negligently drove to the left (east) of the center line and struck the Snodgrass vehicle, causing it to rebound into the plaintiff’s truck a short distance behind her. We believe the trial court properly denied defendant’s motion for a directed verdict on this ground.

The appellant next directs a number of specific complaints to plaintiff’s Instruction No. 6 — his verdict-directing instruction. After abstractly advising the jury that it is the duty of the operator of a motor vehicle to exercise the highest degree of care, and the duty of the operator to drive his motor vehicle upon the right half of the roadway, this instruction then continues:

“Therefore, if you find and believe from the evidence:

“First, that, on the 27th day of September, 1961, plaintiff was driving a panel delivery truck in a Southerly direction on U. S. Highway No. 65 in Christian County, Missouri, if so, behind a South-bound Oldsmobile automobile driven by defendant Ruth H. Wiley, if so;

“Next, that, at said time and place, defendant Edward Snodgrass was driving a Chevrolet automobile in a Northerly direction on Highway 65, if so;

“Next, that the automobiles operated by defendant Ruth H. Wiley and defendant Edward Siiodgrass collided on a curve, if so;

“Next, that, after the automobiles operated by defendant Ruth H. Wiley and defendant Edward Snodgrass collided, defendant Snodgrass lost control of his North-bound Chevrolet, if so, and collided with plaintiff’s South-bound panel delivery truck on plaintiff’s right half of the highway;

“Next, that, as the automobiles operated by defendant Ruth H. Wiley and defendant Edward Snodgrass met and collided, both defendant Wiley and defendant Snod-grass failed to operate their automobiles upon the right half of the highway, if so; and

“If you further find and believe from the evidence that, in failing to operate their automobiles upon the right half of Highway 65 (if so), defendant Wiley and defendant Snodgrass both failed to exercise the highest degree of care and were thereby negligent, if so; and that such negligence on their part, if any, combined and concurred to directly and proximately cause plaintiff to be injured, if so;

“Then and in that event, the Court instructs the Jury that your verdict shall be against defendant Ruth H. Wiley and in favor of plaintiff Howard T. Cluck.”

The appellant, calling attention to the language which hypothesizes that defendant Snodgrass lost control of his northbound vehicle, argues that the plaintiff has attempted to submit a lack or loss of control as a specific act of negligence, without requiring a finding of the necessary causal relationship between the loss of control by Snodgrass and the first collision, and without hypothesizing the manner in which he lost control. Upon the authority of Miles v. Gaddy, Mo., 357 S.W.2d 897, the appellant maintains that the instruction gives the jury a roving commission and is preju-dicially erroneous.

While we cannot unreservedly agree with the respondent that Instruction No. 6 is “both clearly written and logically arranged,” we are of the view that the appellant places a strained construction upon the language used. It is true enough that instructions submitting only that the operator failed to control a motor vehicle have been condemned, generally because such an aggregate or collective submission of all the factual elements and circumstances does not really advise the jury what facts they are to consider in determining negligence vel non, and thus amounts to a so-called “roving commission.” Miles v. Gaddy, supra, 357 S.W.2d at 900-901; McCarthy v. Sebben, Mo., 331 S.W.2d 601, 606-607; Carson v. Evans, 351 Mo. 376, 379, 173 S.W.2d 30, 31 [1]; Annin v. Jackson, 340 Mo. 331, 340-341, 100 S.W.2d 872, 876-877 [6], Such considerations do not obtain here, however. What the plaintiff’s evidence had a tendency to show, and what he undertook to submit to the jury by Instruction No. 6, was the concurrent negligence of both defendants in producing the first impact or collision, and the resulting collision between Snodgrass and the plaintiff. It is fairly inferable that Mr. Cluck was within 40 to 50 feet of the Wiley vehicle when the first collision occurred, and the evidence given by Snodgrass was that he just “scooted across” and hit the plaintiff. There is no contention that defendant Snodgrass could have done anything to avoid Mr. Cluck after colliding with Mrs. Wiley, and insofar as the plaintiff undertook to submit the antecedent negligence of both defendants in producing the collision between the Wiley and Snodgrass vehicles and the resulting collision between Snodgrass and the plaintiff, we think his approach was correct; the essential negligence to be submitted lay in the defendants’ combined antecedent conduct. See Kitchen v. Wilson, Mo., 335 S.W.2d 38, 45 [8].

The plaintiff submitted this negligence by hypothesizing a violation of Section 304.015, par. 2, RSMo (1959), V.A.M.S., on the part of both defendants.' The “loss of control” is hypothesized here merely as a factual element of the plaintiff’s submission, not as a specification of negligence; and the evidence that the Snodgrass vehicle “glanced off” the Wiley car and “scooted across” the highway justifies, we think, a finding that the Snodgrass vehicle was momentarily out of control. So far as the plaintiff’s hypothesis of facts is criticized as being too general, we believe the appellant’s criticism is unjustified in the circumstances of this case. The requirement that a verdict-directing instruction contain a specific and detailed factual hypothesis applies to those issues which are disputed, and concerning which the evidence is in conflict. Kelly v. Kansas City Pub. Serv. Co., Mo., 335 S.W.2d 159, 163 [6]; Redick v. M. B. Thomas Auto Sales, 364 Mo. 1174, 1189-1190, 273 S.W.2d 228, 236 [9]; Hooper v. Conrad, 364 Mo. 176, 188-189, 260 S.W.2d 496, 500-501 [2] ; Knight v. Richey, 363 Mo. 293, 301-302, 250 S.W.2d 972, 977-978. Here, the essential controverted fact issue was not whether the defendants’ two vehicles collided on a curve, nor whether the Snodgrass vehicle “glanced off” the Wiley car and into the plaintiff’s truck; what was fundamentally in issue was whether or not the defendants’ conduct as they met and collided was negligence. The plaintiff hypothesized and submitted the conduct of both defendants in the light of his evidence and in the language of the statute, which was sufficient without more elaborate hypothesis. May v. Bradford, Mo., 369 S.W.2d 225, 228-229 [7] [8]; Byrd v. McGinnis, Mo., 299 S.W.2d 455, 460 [5] ; Cuddy v. Schenewark, Mo., 231 S.W.2d 689, 691 [3]; see Miles v. Gaddy, supra, 357 S.W.2d at 902 [5]. If defendant Wiley considered that the movements of the Snodgrass vehicle in the short interval between the first impact and the second were insufficiently hypothesized, then she should have offered a clarifying or amplifying instruction. Hooper v. Conrad, supra, 364 Mo. at 188—189, 260 S.W.2d at 500-501 [2].

The appellant also maintains that Instruction No. 6 does not postulate the facts in logical sequence and is confusing in its required finding that the operators negligently failed to drive their vehicles on the right half of the road without specifying whose “right” is indicated. Though appellant’s argument on this point is somewhat diffuse, we take the substance of her assignment to be that the instruction is misleading because the hypothetical statements are not arranged in strict chronological sequence. Granted that the instruction narrates the facts through the entire transaction, and then somewhat awkwardly returns the reader’s attention to a point in time immediately preceding the first collision to determine if the defendants were negligent, an instruction is not to be held erroneous merely because of inept composition, if it is not in fact misleading. Tuttle v. Tomasino, Mo., 336 S.W.2d 683, 692 [9, 10]; Page v. Hamilton, Mo., 329 S.W.2d 758, 764 [8, 9]. The substantial issues for the jury’s determination were the defendants’ negligence, which was properly hypothesized, May v. Bradford, supra, 369 S.W.2d at 228-229 [7] [8], and causation, which was properly required to be found. Knox v. Weathers, 363 Mo. 1167, 1172, 257 S.W.2d 912, 914 [1]; cf. Danner v. Weinreich, Mo., 323 S.W.2d 746, 751-752 [3]. We are therefore of the opinion that the defendant was not prejudiced by the arrangement of the subject matter or the sentence structure of Instruction 6, nor do we believe there is any substantial basis to hold that it was confusing or misleading to the jury. Tuttle v. Tomasino, supra, 336 S.W.2d at 692 [9,10]; Schmidt v. Windish, Mo., 304 S.W.2d 891, 895 [5-8]. The appellant’s contention that the instruction confuses the sides of the highway ignores, we think, the antecedent hypothesis that the two automobiles were proceeding in opposite directions and minimizes the impracticability of locating the vehicles by compass direction while they were negotiating a curve. Doubtless the form and arrangement of Instruction No. 6 could have been improved, but we do not consider it prejudicially erroneous.

Defendant Wiley also vigorously criticizes Instruction No. 5, given at the plaintiff’s instance. This instruction, which is rather abstract in nature, advised the jury that, as they understood, the action was one for bodily injury arising out of a motor vehicle collision, prosecuted by the plaintiff against both defendants. The instruction then very shortly summarized the position of the parties from their pleadings, and then advised the jury that they must first determine “under the Court’s instructions” whether Mrs. Wiley was negligent, and then determine whether her negligence combined and concurred with that of Mr. Snodgrass to produce injury; if so, they would return a verdict against both defendants, otherwise only against Mr. Snodgrass, who admitted liability.

We must agree that there is some merit in defendant’s criticism of this instruction, and there is no denying that certain of the rules of law for which the defendant contends — for example, that the jury should not be referred to the pleadings to ascertain the issues — are well established. Jones v. Rash, Mo., 306 S.W.2d 488, 492 [5] ; Adams v. City of St. Joseph, 360 Mo. 806, 811, 230 S.W.2d 862, 864 [2]; Fuller v. Baxter, Mo.App., 284 S.W.2d 66, 71 [12], It was probably unnecessary for the respondent to give Instruction No. 5, for most of what is stated there is implicit in Instruction 4, given at defendant Wiley’s request, which submitted defendant Snodgrass’ negligence as the sole cause of the collision. A finding of sole cause implies a finding that the defendant was guilty of no concurring negligence, Happy v. Blanton, Mo., 303 S.W.2d 633, 637 [3-6]; Semar v. Kelly, 352 Mo. 157, 165, 176 S.W.2d 289, 293 [7-9] ; Fassi v. Schuler, 349 Mo. 160, 167, 159 S.W.2d 774, 777 [8]; Dixon v. Wabash R. Co., Mo.App., 198 S.W.2d 395, 398 [4-9], and the defendant had effectively negatived the idea of concurrent negligence by hypothesizing that plaintiff’s injuries and damage were not due to any negligence of defendant Wiley in any respect submitted. Happy v. Blanton, supra, 303 S.W.2d at 639 [11, 12]; Knox v. Weathers, supra, 363 Mo. at 1177, 257 S.W.2d at 918. However, the respondent was entitled to converse or counter the sole cause submission, Jones v. Illinois Terminal R. Co., Mo., 260 S.W.2d 487, 491, cert. den. 347 U.S. 956, 74 S.Ct. 682, 98 L.Ed. 1101; 1 Raymond, Missouri Instructions, Section 156, p. 94 (Cum. Pocket Part 1963), and the real effect and substance of Instruction 5 was to converse a single element of defendant’s sole cause submission by advising the jury that if defendant Wiley’s negligence concurred with that of Snodgrass, then both defendants were liable. The vice of Instruction 5 is that the first two paragraphs consist merely of abstract statements. It has- repeatedly been pointed out that abstract -statements do not make proper instructions, Myers v. Buchanan, Mo., 333 S.W.2d 18, 21; Gaffner v. Alexander, Mo., 331 S.W.2d 622, 627 [3], but it has also been often said that the giving of instructions containing abstract statements will not be considered as reversible error unless it appears that the instruction was confusing, misleading and prejudicial in the particular case. Carnes v. Kansas City Southern Ry. Co., Mo., 328 S.W.2d 615, 620 [2] ; Cason v. Kansas City Terminal Ry. Co., Mo., 123 S.W.2d 133, 139 [9] ; State ex rel. State Highway Commission v. Haid, 332 Mo. 606, 610, 59 S.W.2d 1057, 1058 [1-3]. We cannot agree that defendant Wiley was prejudiced by the giving of Instruction 5, at least in the respects complained of here. It seems to us that the references made to the pleadings here merely refer to the claims made by the various parties and seek to identify them to the jury. The jury is not referred to the pleadings to ascertain what the fact issues are, and we do not consider Instruction 5 prej-udicially erroneous because of improper reference to the pleadings. Cacioppo v. Kansas City Pub. Serv. Co., Mo.App., 234 S.W.2d 799, 802 [10]; Anderson v. Dail, 224 Mo.App. 403, 405-406, 21 S.W.2d 496, 497-498 [1], As to the appellant’s argument that Instruction 5 improperly omits a finding of proximate cause, the jury is specifically referred to other instructions which require a finding of causative negligence as a prerequisite to a plaintiff’s verdict, and we consider that sufficient. Brooks v. Mock, Mo., 330 S.W.2d 759, 767-768 [12] ; Cornovski v. St. Louis Transit Co., 207 Mo. 263, 277-278, 106 S.W. 51, 56; Deschner v. St. Louis & M. R. Ry. Co., 200 Mo. 310, 332-333, 98 S.W. 737, 743(b). And inasmuch as the plaintiff attempted in this case to submit only the converse of one element of defendant’s sole cause submission, namely that the collision was not due to ■any concurrent negligence on Mrs. Wiley’s •part, we are of the view that a complete hypothesis of fact was unnecessary. Terrell v. Missouri-Kansas-Texas R. R. Co., Mo., 327 S.W.2d 230, 237 [8] [9]; McCarty v. Milgram Food Stores, Inc., Mo., 252 S.W.2d 343, 344-345 [2] ; see Huffstutler v. Coates, Mo., 335 S.W.2d 70, 80 [10, 11]. We do not find Instruction 5 to be reversibly erroneous, upon the record presented.

The defendant finally contends that the trial court erred in not discharging the jury panel because of certain remarks made during voir dire by a prospective juror. During the course of the voir dire examination, one of the prospective jurors, an acquaintance of the plaintiff, was asked how long it had been since he had seen Mr. Cluck. The talesman thereupon answered that he saw the plaintiff fairly frequently in the course of his business but “ * * * in bowling, I guess it has been around three years since we have had any connection there.” The defendant thereupon moved that this venireman be excused upon the basis of his answer, because part of the plaintiff’s claim for injuries was that he was no longer able to bowl as often as before, and the prospective juror’s remark amounted to an improper introduction of evidence of plaintiff’s disability. The trial court refused to quash the panel, but as a matter of fact this talesman did not serve because he was peremptorily challenged by the defendant. During the course of his direct examination, the plaintiff testified that he was still able to bowl, though not as often as before.

It is possibly true that highly improper or inflammatory remarks made before the panel by a prospective juror upon voir dire might be grounds for quashing the entire panel and declaring a mistrial, but normally the disqualification of an individual juror for bias or the expression of an opinion is not a sufficient ground for a challenge to the entire panel. State v. Weidlich, Mo., 269 S.W.2d 69, 71 [3-5]. The question whether the panel was affected by the improper statement of an opinion or remark made upon voir dire was a question largely directed to the discretion of the trial court, and we cannot say, in this case, that the court abused its discretion in refusing to quash the entire panel and declare a mistrial. State v. Weidlich, supra, 269 S.W.2d at 71 [3-5]; State v. Walters, Mo., 29 S.W.2d 89, 90 [1]; Gordon v. Kansas City Southern Ry. Co., 222 Mo. 516, 538, 121 S.W. 80, 86. See 50 C.J.S. Juries § 262, pp. 1022-1023.

We find no reversible error, and the judgment is affirmed.

RUARK, P. J., and STONE, J., concur.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    Elby L. OWEN, Appellant, v. Walter Raleigh FINIGAN, Appellee.
    No. 3896.
    Court of Civil Appeals of Texas. Eastland.
    July 10, 1964.

    Rehearing Denied Sept. 4, 1964.
    Brewer & Mopsik, Dennis G. Brewer, Irving, for appellant.
    Aubrey J. Roberts, Burford, Ryburn & Ford, Logan Ford and Bill Wiley, Dallas, for appellee.
   WALTER, Justice.

The judgment entered herein on May 22, 1964, is set aside and the original opinion is withdrawn. The following opinion is rendered in lieu thereof.

Walter Raleigh Finigan filed suit against Elby L. Owen for damages. The court rendered what the appellee refers to as a consent judgment in favor of Finigan. Owen has appealed contending that the court erred in rendering judgment because it does not meet the requirements of Rule 11, Texas Rules of Civil Procedure.

After a jury was selected, the attorneys announced in open court that they had reached a settlement. The matters alleged to have been agreed upon by the attorneys were not reduced to writing, signed and filed with the papers as part of the record, as required by said Rule 11. The judgment recites that the case came on to be heard on the 10th day of October, 1963. The judgment was signed on October 28, 1963. The record does not reflect that the agreement made by the attorneys in open court was entered of record at such time. The specific terms of the agreement reached in open court are shown only in the judgment. It shows that appellant excepted to the judgment and gave notice of appeal.

By excepting to the judgment, appellant was asserting that he was not acquiescing in the terms of the alleged settlement nor in the decision of the court. By excepting, appellant objected to all the terms of the judgment. By such action the appellant was making it known to the Court that he was not agreeing to its terms and that he was dissatisfied. In Cureton v. Robbins, Tex.Civ.App., 319 S.W.2d 735, (no writ history), the Court said:

“The fact that the parties announced in open court that they had reached an agreement, and discussed in open court the things they had agreed upon, was not sufficient to support the judgment entered. The appellant refused to agree to the judgment which was entered, and this fact was known to the trial court before he ordered it entered. There was no written agreement signed by the parties, as is required by Rule 11, Texas Rules of Civil Procedure, neither were the terms of the agreement stated in open court and a record made of such terms. The parties did not agree, at any time, to the judgment actually entered. Under such circumstances the judgment entered was not an agreed judgment and should have been set aside. Behrens v. Behrens, Tex.Civ.App., 186 S.W.2d 697. In Burnaman v. Heaton, Tex.Civ.App., 231 S.W.2d 1006, 1007, the Court said:
‘These cases are good authority for the proposition that even though a settlement agreement is announced in open court, if it is not reduced to writing, signed and filed among the papers of the case, or is not recorded in the minutes of the court, it can not be the basis for the rendition of a judgment at a later date where a dispute arises as to the existence of the agreement or as to its terms.’ ”

We have reached the conclusion that this was not a consent judgment. The judgment is reversed and the cause is remanded.

On Motion for Rehearing

Appellee contends in his motion for rehearing that “Since there is no statement of facts in this record, this Court must presume such facts as are necessary to support the judgment to have been found by the trial court.” “In the absence of a statement of facts, appellate review is limited to errors apparent on the face of the pleadings, the verdict, the findings, if any, the judgment, and the bills of exception.” 3 Tex. Jur.2d, paragraph 449, page 697. In First Texas Prudential Insurance Company v. Cevallos et al., Tex.Civ.App., 38 S.W.2d 875, (no writ history) the court was considering a case without a statement of facts. The judgment appeared in the record. The court considered the statements made in the judgment and concluded that the court erred in allowing attorney’s fees. Our Supreme Court in Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, said: “A valid consent judgment cannot be rendered by a court when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court.” No statement of facts has been filed. The judgment appears in the transcript which has been filed. It is apparent on the face of the judgment that appellant did not consent thereto at the time the court undertook to make the alleged agreement the judgment of the court.

Appellee’s motion for rehearing is overruled.


author: BATEMAN, Justice.

text:
    Thyra Leithold PLASS et vir, Appellants, v. Louis LEITHOLD, Intervenor, Appellee.
    No. 16405.
    Court of Civil Appeals of Texas. Dallas.
    July 24, 1964.

      Turner, Rodgers, Winn, Scurlock & Terry and John H. McElhaney, Dallas, for appellants.
    Turner, Atwood, Meer & Francis, J. Glenn Turner, Jr., Dallas, for appellee.
   BATEMAN, Justice.

This appeal is from the denial of an application for change of the name of a minor pursuant to Vernon’s Ann.Civ.St. art. 5929. The appellant Thyra N. Plass was formerly the wife of appellee Louis C. Leithold. They had adopted an infant who was given the name, Gordon Marc Leithold. They were thereafter divorced and the adoptive mother married Gilbert N. Plass, and they, as next friends of Gordon Marc Leithold, filed this application to change the minor’s surname from Leithold to Plass. At the time of the hearing Gordon was four and three-quarters years old and was in the legal custody of the mother. The adoptive father, Louis C. Leithold, intervened and contested the proposed change, denying that it would be in the best interests of the minor.

The statute directs the judge to grant authority for the change of a minor’s name “if the facts alleged and proven satisfy him that such change will he for the benefit and interest of the minor.” The appellants offered evidence to the effect that, in their opinion and in the opinion of a psychologist-witness, the change of name would benefit the minor in that it would relieve him of the embarrassment and emotional upset involved in explaining why he has a different name than that of the household in which he lives. The appellee offered no evidence. The court denied the application. No findings of fact or conclusions of law were filed.

Appellants recognize the well settled rule that in cases of this kind there can be no reversal of the trial court’s judgment in the absence of a showing of abuse of its discretion. However, they present four points of error charging abuse of discretion in that: (1) there was no evidence that the name change would not be for the minor’s benefit; (2) the decision is against the great weight and preponderance of the evidence ; ' (3) the trial court has no discretion to deny a name change if there is “satisfactory proof” that the change will be' for the benefit and interest of the minor; and (4) there is at least some evidence that benefit would result to the minor by the proposed change. We find no merit in any of these points and overrule them seriatim as follows:

(1) The absence of evidence that the name change would not be. for the, minor’s benefit profits appellants nothing; the burden was on them to prove, not by a mere preponderance of the evidence, but by evidence satisfactory to the trial court, that the change would be for the benefit and interest of the minor.

(2) We have carefully studied the entire record and cannot say that the trial court’s ruling is against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. The probative force of the testimony offered was for the trial court to determine. If he was not satisfied by the opinion evidence offered, it- was his duty and right to reject the same. Nass v. Nass, 149 Tex. 41, 228 S.W.2d 130; Thompson v. Janes, Tex.Civ.App., 245 S.W.2d 718, 724, affirmed 151 Tex. 495, 251 S.W.2d 953. As said in Ex Parte Taylor, Tex.Civ.App., 322 S.W.2d 309, 312, no wr. hist.: “In the absence of a showing that the trial court abused its discretion, the action of the trial court in granting authority to the minors to change their names and to adopt another is a matter for the trial court and is not subject to review on appeal.” In our opinion, the same rule would prevail where the application for change of name is denied.

(3) We agree with appellants that in cases such as this the trial court would have no discretion to deny an application to change the name of a minor if there was “satisfactory proof” that the change would be for the minor’s interest and benefit; but in this case the court impliedly found that the proof was not “satisfactory”.

(4) We do not agree with the proposition that in such a case, if there is “at least some evidence” of benefit to the minor by a proposed change of name the trial court must be held to have abused its discretion in not following it. As indicated above, it is exclusively the function of the trial court to determine whether the evidence offered, even though undisputed, is “satisfactory” to him.

Appellants’ proof showed that ap-pellee was still quite interested in his adopted son and desirous of preserving the parental relationship with him. The filing of his petition of intervention and his presence at the trial, in person and by attorney, would so indicate. There was no evidence to indicate that continued use by the child of his father’s name would bring shame or disgrace, or affect the physical welfare or substantial property rights of the child. Moreover, to further impair the already badly damaged parental relationship between appellee and the child might have an adverse psychological or emotional impact on the latter. It was proper for the court to consider all of these things in determining whether the proposed change would be for the benefit and interest of the minor, whose welfare is of paramount importance under our law. 65 C.J.S. Names § lib, p. 21; 53 A.L.R.2d 914; Application of Wittlin, City Ct., 61 N.Y.S.2d 726.

Appellants have not persuaded us that in making that determination the trial court abused its discretion, and the judgment is therefore

Affirmed.


author: DIXON, Chief Justice.

text:
    Pinkney Ray McLEAN, Appellant, v. EMPLOYERS CASUALTY COMPANY et al., Appellees.
    No. 16438.
    Court of Civil Appeals of Texas. Dallas.
    July 24, 1964.

      Paul W. Leech and John M. Thorne, Grand Prairie, for appellant.
    Burford, Ryburn & Ford and Robert E. Burns, Dallas, for appellees.
   DIXON, Chief Justice.

Pinkney Ray McLean has appealed from an order granting a temporary injunction to appellees Employers Casualty Company and Employers National Insurance Company, affiliated companies. McLean, a former sales agent for appellees was enjoined from selling insurance in a certain designated territory.

On May 13, 1963 appellant entered into a written contract with appellees, said contract being designated “Personal Lines Agent’s Agreement.” Nowhere in the contract is the term “Personal Lines” defined. The contract names the seven counties in which the agent might solicit insurance.

The contract contains provisions under the heading “Agreement Not to Compete.” The substance of these provisions is that in the event the agreement should be terminated for any reason appellant should not for a period of two years solicit insurance of a kind “which may or might be written” by appellees.

Appellant sold insurance for appellees until February 29, 1964. On that date he notified appellees that he was terminating his agreement with them. He at once began selling insurance for other companies in the territory named in the contract.

On April 3, 1964 after a hearing the trial court granted the temporary injunction which is the subject of this appeal.

In his first point on appeal appellant contends that appellees’ petition does not state a cause of action. Without going into detail we shall simply state that though ap-pellees’ petition is couched in rather general terms, it does state a cause of action. The first point on appeal is overruled.

In his second point appellant says that the order of the court fails to inform appellant what insurance he is restrained from selling. With this point we agree.

Rule 683, Texas Rules of Civil Procedure expressly provides that every order granting an injunction “shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained ; ¡is * i|: »

Appellees admit that it was not their intention to restrain appellant from selling any and all kinds of insurance. His original contract was limited to “Personal Lines” of insurance. In their brief appellees say that while a layman might not fully understand the meaning of “personal lines” of insurance, it is a term of common usage and comprehension in insurance circles with a very definite meaning. The testimony on this point is not as clear as might be desired.

The manager of appellees’ “Personal Lines Division” says that “personal lines would be- generally described as those individual lines of insurance that would be purchased by, let’s say, an individual home ■owner or someone like you or I who does not own a business.” It would include “fire ■and casualty insurance on a home and a boat, or car and that sort of thing,” and '“some small commercial in our sense so far as pickups and things of that nature are concerned.”

Before becoming an agent for appellees ■appellant had sold life insurance. It is ■conceded that life insurance is a “personal line,” but it was not appellees’ intention to restrain appellant from resuming his sale of life insurance in the territory, for apparently appellees do not write life insurance. The record is silent as to what other lines of personal insurance appellees do not write and which therefore are not properly covered by the injunction. As ap-pellees admit, the order “did not list or specify the individual types of policies which were involved, * *

The court’s order is broad in its terms. It restrains appellant from “soliciting, accepting or servicing * * * any insurance business of any kind or character, which insurance business may or might he written by plaintiffs” in the seven counties. (Emphasis supplied.)

Appellees’ purpose may be to restrain appellant only from competing with appellees for two years by writing the same types of personal insurance that appellees now write, but the order does not set out in reasonable detail what are such types of insurance. The order is broad enough to include commercial lines of insurance as well as personal lines. Furthermore, we are not sure what is meant by the phrase may or might be written. Does it include only insurance of the types now written by appellees, or does it include also types of insurance which might be written in the future by appellees under an expanded insurance program? Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 951-952.

In our opinion the order does not meet the requirements of Rule 683 as to “specific terms.” Coates v. Coates, Tex.Civ.App., 355 S.W.2d 260; Hice v. Cole, Tex.Civ.App., 295 S.W.2d 661. 31 Tex.Jur.2d 276-278; Lowe and Archer, “Texas Practice,” p. 373; 43 C.J.S. Injunctions § 206, p. 932. Appellant’s second point is sustained.

In his third point appellant argues that the temporary injunction destroys the status quo. We cannot agree. The status quo is not the situation as it existed at the time the trial court entered its order. It is “the last, actual, peaceable, noncontested status which preceded the pending controversy." (Emphasis supplied.) Transport Co. of Texas, et al v. Robertson Transports, Inc., et al, 152 Tex. 551, 261 S.W.2d 549, 553-554.

The above case involved an alleged invalid order of the Railroad Commission. Our Supreme Court said in effect that if it were held that an invalid order creates a status quo, a plaintiff could never obtain temporary relief from an operation under an invalid order. Similarly we say that if appellant was operating in violation of his contract, such violation did not create the status quo for purposes of temporary injunction. Appellant’s third point is overruled.

Since we have held that the order granting the temporary injunction did not meet the requirements of Rule 683, T.R.C.P. in regard to specific terms, the order will be reversed and the cause remanded to the trial court for further proceedings in regard to appellees’ application for a temporary injunction.

Reversed and remanded.


author: STONE, Judge.

text:
    William W. DILLON and Ella Mae Dillon, Plaintiffs-Respondents, v. James C. HOGUE, Defendant-Appellant.
    No. 8261.
    Springfield Court of Appeals. Missouri.
    Aug. 26, 1964.

      Ward & Reeves, Caruthersville, for defendant-appellant
    Kenneth L. Dement, Sikeston, for plaintiff s-respondents.
   STONE, Judge.

In this jury-tried case, defendant James C. Hogue appeals from the judgment for $10,000 obtained by plaintiffs, William W. Dillon and Ella Mae Dillon, on account of the alleged wrongful death of Michael Wayne Dillon (hereinafter called Mike), their five-year old son, by reason of injuries sustained when he was struck about 4:20 P.M. on Thursday, July 19, 1962, by a 1962 Ford Fairlane sedan then being driven by defendant in a southerly direction on Missouri State Highway 105 at a point one and one-half miles north of East Prairie, Mississippi County, Missouri.

In their petition, plaintiffs charged defendant with primary negligence in five particulars and with humanitarian negligence; but, by their sole verdict-directing instruction 1, plaintiffs submitted in the disjunctive only humanitarian negligence in (1) failing to stop, (2) failing to “sufficiently” slacken speed, and (3) failing to swerve to the right or to the left, thereby abandoning all other pleaded grounds of negligence. Welch v. McNeely, Mo., 269 S.W.2d 871, 875(1), and cases there cited. On this appeal, defendant, who offered no evidence but stood on his motion for a directed verdict at the close of plaintiffs’ evidence, insists that plaintiffs did not make a submissible case on humanitarian negligence and that the trial court erred in the giving of instructions and in the admission of evidence.

Our factual review is with appropriate recognition of the basic rule that, in determining whether a submissible case was made, we must consider the evidence in the light most favorable to plaintiffs and must accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence [DeLay v. Ward, 364 Mo. 431, 439, 262 S.W.2d 628, 633(3); Ornder v. Childers, Mo., 327 S.W.2d 913, 915 (1) ; Appelhans v. Goldman, Mo., 349 S.W.2d 204, 208(8)], tempered only by the sensible limitation that this rule calls for consideration of all the facts shown by plaintiffs and not merely a part of them isolated from the remainder, and that the rule does not require courts to supply missing evidence, or to disregard the dictates of common reason and accept as true that which, on the whole record, obviously is not true, or to give plaintiffs the benefit of inferences other than reasonable ones. Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80; Reames v. St. Louis-San Francisco Ry. Co., Mo.App., 359 S.W.2d 230, 235(2).

At and near the point of accident, Highway 105 runs generally north-and-south and has a paved roadway, nineteen feet in width, with an interrupted white center line. On the east side of the center line, there is a nine-foot concrete lane and, on the west side, a ten-foot blacktop lane. The west shoulder of the highway is six to seven feet in width, and the west ditch, described as a “V-type ditch, a grader-type ditch,” averages ten feet in width and is twelve to eighteen inches in depth. The grass and weeds along the shoulder and in the ditch are kept mowed. There are four houses on the west side of Highway 105 near the point of accident. A southbound motorist, such as defendant, passes in this sequence the Burchett home, the Blumenberg home, the Dillon home where plaintiffs and their family reside, and the Presson home.

On the afternoon of the fatal accident, Mike Dillon, then five, and Gene Frye, then six, were playing in the front yard of the Dillon home while Mike’s brother, Ricky Webb Dillon, then eight, at the moment was sitting on the front steps. Gene threw his toy pistol across the highway, and Mike was struck by defendant’s southbound automobile as he moved across the paved roadway, presumably to retrieve the toy. The record provides two accounts of Mike’s action immediately prior to the accident, i. e., one by Ricky, nine at the time of trial, and the •other by defendant’s testimony read in evidence from his pretrial deposition. We turn first to defendant’s testimony which, as his counsel state (and we agree), is “more favorable to the plaintiffs” than is Ricky’s testimony.

Defendant, thirty-five years of age, had been employed by the Brown Shoe Company ■at Charleston, Missouri, for thirteen years and had made the round trip between his home in East Prairie and Charleston five ■days each week during that period of employment. On the day of accident, the •weather was good and the pavement was dry. With his wife and two other passengers, defendant was en route from Charleston to East Prairie in his 1962 Ford sedan, which he had purchased new some two or three months previously. The tires were ■“new” and the hydraulic brakes were in good working condition.

Defendant’s estimate (and the only estimate) of the speed of his automobile, as he approached the scene of accident, was forty to forty-five miles per hour. When he was “pretty well in front of” or “about in front of” the Blumenberg home (the first house north of the Dillon home), defendant first saw Mike “somewhere in front of” the Dillon home, in the west ditch or “coming out of the edge of the ditch,” and running toward the highway. In his words, defendant immediately “got on my brakes and blowed [sic] my horn. * * * He [Mike] almost came to a stop, or appeared that he did, and I wouldn’t say that he did, but what I mean, the best I remember he turned towards me.” But Mike continued onto the pavement and, when he was about “three-fourths of the way across” the west or southbound lane (and thus within two or three feet of the center of the highway), he was struck by defendant’s automobile.

Trooper Montgomery of the Missouri State Highway Patrol, who investigated this accident, found parallel “tire marks” or “skidmarks” approximately 114 feet in length, which had been left by defendant’s automobile “as far as I [Montgomery] could tell.” Both parallel marks began in the west or southbound lane at a point about even with the property line between the Blumenberg and Dillon homes and ran in a southerly direction, curving gradually to the west with the right-hand mark running onto the west shoulder. Plaintiffs’ witness Lucas, a registered land surveyor, testified that the distance “from about the middle of the Blumenberg home to the middle of the Dillon home” was 170 feet, “one foot more or less,” and a large plat drawn to scale by Lucas and received in evidence shows that it is approximately 124 feet from the south end of the Blumenberg home to the north end of the Dillon home. (AH emphasis herein is ours.)

Before ruling defendant’s points, we refer briefly to the factual account offered by Ricky, Mike’s brother. His father, plaintiff William, had stated in a pretrial deposition that, although Ricky had seen the accident, “he can’t give me any picture, only but that boy [Mike] was hit and he [Ricky] run to the boy when he fell” — “you can talk to him and he will say he seen this, and then you will say, did it happen like this, and he will say yes.” But by trial time, Ricky apparently was regarded as having ripened into “a testimonial plum” to be “shaken down” before the jury. Hildreth v. Key, Mo.App., 341 S.W.2d 601, 610. Upon trial, defendant’s counsel objected to a substantial portion of Ricky’s testimony on the grounds of “estoppel” and “surprise” by reason of plaintiff William’s statements in his pretrial deposition; and, on this appeal, error is assigned in the overruling of that objection. There having been no objection to the competency of Ricky as a witness [V.A.M.S. § 491.060; Hildreth v. Key, supra, 341 S.W.2d loc.cit. 608-612], no doubt the objection to his testimony was ruled properly. But it is unnecessary for us to assume the difficult and unrewarding burden of attempting to piece out from Ricky’s childish responses a consistent, coherent, comprehensive account of Mike’s conduct and movements, since plaintiff’s attorney (although insisting that Ricky properly was permitted to testify) asserts that he “presented a prima facie case of humanitarian negligence without the aid of Ricky Dillon’s testimony, which was merely cumulative.” However, it may not be inappropriate to observe in passing that Ricky did not see defendant’s automobile until he “heard the wheels of the wreck [sic] squeaking” and “turned around,” and that it would be utterly impossible to determine from his testimony either the location or the speed of defendant’s automobile when Mike was at any given point. Cf. Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, 498(9).

Our initial concern is as to submis-sibility; and, since plaintiff’s verdict-directing instruction 1 submitted disjunctively humanitarian negligence in three particulars, we must determine whether a prima facie case was made on each submitted particular. We consider first defendant’s alleged negligence in failing to stop. Of course, the humanitarian doctrine imposed upon defendant no duty to act until a situation of imminent peril arose [Wilson v. Toliver, Mo., 305 S.W.2d 423, 429(8); Schmidt v. Allen, Mo., 303 S.W.2d 652, 657(6) ; Yeaman v. Storms, 358 Mo. 774, 778, 217 S.W.2d 495, 498(1)], and the precise place where, and time when, Mike came into a position of imminent peril were for the jury to determine. Bunch v. Mueller, 365 Mo. 494, 499, 284 S.W.2d 440, 443(6) ; Welch v. McNeely, supra, 269 S.W.2d loc.cit. 876(10); Stith v. St. Louis Public Service Co., 363 Mo. 442, 450, 251 S.W.2d 693, 698(7), 34 A.L.R.2d 972. But the jury reasonably could have found that Mike was in imminent peril, when defendant first sighted him (Mike) in the west ditch and running toward the highway. Triller v. Hellwege, Mo., 374 S.W.2d 104, 107(4). In fact, the mathematical calculations in defendant’s brief are made on that assumption. Thus, defendant’s counsel say that Mike ran “not more than seventeen to twenty-two feet from a position of safety to impact,” the longer distance of twenty-two feet including, with a show of generosity toward adversary counsel, (a) five feet as half the width of the west ditch, (b) seven feet as the width of the west shoulder, and (c) ten feet as the width of the west or southbound traffic lane.

But we need not detail the computations in defendant’s brief, for they are presented not only (1) on the assumption of counsel, which (in view of their trial theory) we do not accept, that Mike ran at a speed of ten miles per hour, but also (2) on the egregiously-erroneous premise that, in the language of counsel, “there is no evidence in this record as to the distance between them [Mike and defendant’s automobile] when the peril did arise.” As for the speed at which Mike ran, defendant’s counsel point to plaintiff William’s statement that Mike “could run like a rabbit” and here rely upon Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788, where “[t]he only testimony” was that the minor plaintiff “ran fast and did not slacken his speed until he ran into and struck the automobile” and the court’s holding was that “[t]he jury could reasonably infer that even a five year old boy could run the short distance this plaintiff ran at a speed of ten miles per hour for a man will walk at from four to five miles per hour.” But, in the judicial wonderland of the humanitarian doctrine where courts and counsel alike delight in casting liability upon precise mathematical calculations employing imprecise estimates or assumptions of speeds and distances, different running speeds for young children have been assumed or found in other cases; in the instant case there was no testimony that, immediately prior to the accident, Mike did run “like a rabbit”; and defendant’s counsel may not here change or depart from their trial theory, as evidenced by their specific request that the court “take judicial notice of the fact * * * that a child of approximately five or six years of age can run approximately five or six miles per hour.” Olsten v. Susman, Mo., 362 S.W.2d 612, 614(3); Greathouse v. Wolff, Mo.App., 360 S.W.2d 297, 301(2) ; Hill v. Seaboard Fire & Marine Ins. Co., Mo.App., 374 S.W.2d 606, 610(6).

More importantly, defendant’s counsel overlook their client’s testimony that he was “pretty well in front of” or “about in front of” the Blumenberg home when he first sighted Mike “somewhere in front of” the Dillon home, in the west ditch or “coming out of the edge of the ditch,” and running toward the highway. From this testimony, the jury reasonably could have inferred and found that defendant actually saw Mike when the intervening distance was in the range between 170 feet (the distance between the middle of the Blumenberg home and the middle of the Dillon home) and 124 feet (the distance between the south end of the Blumenberg home and the north end of the Dillon home) ; and, as we have said, the jury also could have found that Mike was then in imminent peril. If defendant, after sighting Mike in a position of imminent peril, had the then ability with the means at hand to have stopped short of the point of impact without injury to himself or others but failed to do so, he properly might have been found guilty of humanitarian negligence. Banks v. Morris & Co., 302 Mo. 254, 267, 257 S.W. 482, 484(2). So, in considering whether a submissible case was made on humanitarian negligence in failing to stop, our simplified inquiry is whether defendant could have stopped within the available intervening distance of 170 to 124 feet after he saw Mike. If he could, it becomes unnecessary for us to assume or find, and thus wholly immaterial, precisely how far or precisely how fast Mike moved after he was sighted by defendant.

Two witnesses testified with respect to stopping distances, namely, witness Simmons, Sheriff of Mississippi County, Missouri, and Trooper Montgomery. Simmons testified concerning a series of three experiments in stopping a 1962 Ford Fairlane running 45 miles per hour, which he conducted on Highway 105 in front of the Blu-menberg and Dillon homes on the afternoon before the trial. Plaintiffs’ counsel, riding in the automobile, instructed Simmons that, when he heard counsel “slap on the dash,” he (Simmons) was to apply the brakes. Simmons also had been told in advance the approximate point at which he was "going to have to put those brakes on.” According to Simmons, the results of the three experiments were as follows. In the first experiment, the total stopping distance was “approximately 80 feet” which included “skidmarks” or braking distance of 66 feet and thus left only 14 feet as the distance traveled during reaction time. In the second experiment, the total stopping distance was 72 or 73 feet; and, although the length of the “skidmarks” or braking distance was not stated, Simmons gave the distance traveled during reaction time as “about 10 or 12 — about 10 feet.” In the third experiment, the total stopping distance was 62 feet which included “skidmarks” or braking distance of “approximately 58 feet” and thus left only 4 feet as the distance traveled during reaction time, although Simmons on cross-examination thought that this distance was “approximately 9 feet.”

Defendant asserts that Simmons’ testimony as to stopping distances should be rejected as manifestly incredible. Although “it is a matter of common knowledge that the actual braking distance alone of an automobile moving at a speed of 40 miles per hour would exceed 60 feet by a substantial amount” [Stonefield v. Flynn, Mo.App., 347 S.W.2d 472, 478], we need not determine whether Simmons’ testimony concerning braking distances of 66 to 58 feet at 45 miles per hour should be rejected as manifestly incredible. His total stopping distances of 80 to 62 feet at 45 miles per hour included and were predicated upon distances of 14 to 4 feet traveled during reaction time. We know judicially that an automobile traveling 45 miles per hour moves 66 feet per second [cf. Danner v. Weinreich, Mo., 323 S.W.2d 746, 752(6)] and, during the reaction time of three-fourths second frequently used by courts and counsel in their computations [e. g., Vietmeier v. Voss, supra, 246 S.W.2d loc. cit. 788(5) ; Peterson v. Tiona, Mo., 292 S.W.2d 581, 583], moves 49i/2 feet. Of course, we also know that all individuals do not have the same reaction time, but three-fourths second appears to be a relatively fast time. The distances traveled by Simmons during his reaction time were (so he said) only 14 to 4 feet which, at 45 miles per hour, would be covered in .21 second to .06 second. Obviously application of brakes within any such infinitesimal period would reflect quicker reaction than the lightning draw of the fastest gun in the legendary West.

Although courts do not have judicial knowledge as to the exact distance within which an automobile can or cannot be stopped under given circumstances, they do take judicial notice of limits within which an. automobile traveling at a stated rate of speed can be stopped [Perry v. Dever, Mo.,. 303 S.W.2d 1, 7(14); Peterson v. Tiona, supra, 292 S.W.2d loc. cit. 583(3); Mallow v. Tucker, Mo., 281 S.W.2d 848, 851(4) ; Harrellson v. Barks, Mo.App., 326 S.W.2d 351, 358(5)] or cannot be stopped. Stonefield v. Flynn, supra, 347 S.W.2d loc. cit. 477; Danner v. Weinreich, Mo., 323 S.W.2d 746, 752. And they are not compelled to accept blindly testimony concerning stopping: distances which is contrary to commom knowledge and experience and is manifestly incredible. Stonefield v. Flynn, supra, 347 S.W.2d locv. cit. 477-478(5,8); Kelly v. Terminal R. R. Ass’n. of St. Louis, Mo., 315 S.W.2d 699, 702-703. We would not be misunderstood as holding that testimony as to stopping distances must be confined to the-distances set forth in the Missouri Drivers: Guide. But there are limits beyond which litigants and their witnesses should not be heard to impose upon the credulity of courts or juries; and it is our considered judgment that Simmons’ testimony as to stopping distances clearly falls without those limits, is manifestly incredible, and should: not be considered in determining submisi-sibility.

However, plaintiffs say that, if Simmons’ testimony be disregarded, they nevertheless made a submissible case of humanitarian negligence. This turns us to the testimony of Trooper Montgomery. Insofar as submissibility of defendant’s alleged failure to stop is concerned, the salient portion of Montgomery’s testimony, as developed on cross-examination by defendant’s counsel, is that “the overall stopping distance at 40 miles per hour” is “approximately 126 feet,” comprising (a) 44 feet as the distance traveled during an assumed reaction time of three-fourths second and (b) “approximately 82 feet” as the braking distance. Without further belaboring the facts, suffice it to express our opinion at this point that, on Montgomery’s testimony, the jury reasonably could have found that defendant, at his lower estimated speed of 40 miles per hour, could have stopped within the distance then available to him (i. e., within the range from 170 to 124 feet) when he first sighted Mike in a position of imminent peril, and that, therefore, plaintiffs made a submissible case on defendant’s alleged failure to stop.

In the circumstances of this case, it logically and necessarily follows that if, as we have held, the jury reasonably might have found that defendant in the exercise of the highest degree of care could have stopped his automobile before striking Mike, the jury likewise might have found that defendant could have slackened its speed sufficiently to have enabled Mike to have cleared its path safely. Sperry v. Tracy Dodge-Plymouth Co., Mo., 344 S.W.2d 108, 112; Peterson v. Tiona, supra, 292 S.W.2d loc. cit. 584.

With respect to submissibility for failure to swerve to the left or to the right, defendant’s argument here is that he could not have swerved to the left “because he was meeting a truck” or to the right because “that was the direction from which Mike was running, there was another child near the ditch, and * * * he would have struck Mike sooner.” But defendant himself testified that he had passed the northbound truck when he was “about in front of” the Blumenberg home (i. e, within the range of 170 to 124 feet north of the point of accident) and that there was no northbound vehicle following the truck, so approaching traffic did not prevent or interfere with his swerving to the left. It is fairly inferable from the record that Gene Frye, the boy with whom Mike had been playing, rémained on the west side of the west ditch so, if (as defendant stated) Mike was, at the moment of impact, about “three-fourths of the way across” the west or southbound traffic lane, the west seven feet of that traffic lane and the west shoulder, some six or seven feet in width, were available for swerving to the right. Alleged humanitarian negligence in failing to swerve in either direction was submissible.

Defendant contends that plaintiffs’ instruction 2 was erroneous as improperly injecting defendant’s primary negligence into the humanitarian submission. This instruction reads as follows: “[1] The court instructs the jury [a] that under the law of this state, the operator of a motor vehicle on public streets, roads, or highways of this state is required to exercise the highest degree of care, and [b] by the term ‘highest degree of care’ as used herein is meant that degree of care that a very careful and prudent person would ordinarily exercise under the same circumstances, and [c] that a failure to exercise such care would constitute negligence as that term is used in these instructions, and [2] in that regard the court further instructs the jury that defendant also must be charged with the knowledge that children do not have the foresight or exercise the care for their own safety that people of mature years exercise, and that their actions are more or less unpredictable, and that thoughtless and impulsive acts of children are to be expected and guarded against.” (We have inserted the bracketed numbers and letters to facilitate reference to the two sections of this instruction and to different clauses of section 1 thereof.)

It is firmly established that primary or antecedent negligence cannot be considered in determining whether a defendant has been guilty of humanitarian negligence, and that, therefore, primary negligence has no place in a submission solely under the humanitarian doctrine. Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930 (2), and cases cited in footnote 2. “In so far as the jury are authorized (in submitting the issues of a humanitarian case) to consider conduct antecedent to the situation invoking the humanitarian rule in determining whether the defendant thereafter exercised due care, just so far is the humanitarian rule nullified and its purpose defeated” [Teague v. Plaza Express Co., 354 Mo. 582, 591, 190 S.W.2d 254, 258(6)], for it is only when imminent peril (within the meaning of the humanitarian doctrine) arises that such doctrine, blotting out primary or antecedent negligence, seizes upon the then existing situation and imposes a duty thereafter to exercise proper care to avoid infliction of the threatened injury. Therefore, it has long been the rule that plaintiff’s instructions in a humanitarian case “must be so worded as to exclude a recovery based on primary negligence.” White v. Kansas City Public Service Co., 347 Mo. 895, 898, 149 S.W.2d 375, 377(1); McDonough v. St. Louis Public Service Co., Mo., 350 S.W.2d 739, 746.

Language, such as that in section 1 of instant instruction 2, defines in general terms the duty of a driver under the law of primary negligence as well as under the humanitarian doctrine [Thayer v. Sommer, Mo., 356 S.W.2d 72, 76; Reiling v. Russell, 348 Mo. 279, 284, 153 S.W.2d 6, 9; Wright v. Hummel, Mo.App., 164 S.W.2d 640, 644]; and, in a number of Missouri cases, instructions containing such language have been held prejudicially erroneous as injecting primary negligence into a humanitarian submission.

Section 2 of instruction 2 charged defendant “with the knowledge that children do not have the foresight or exercise the care” of adults, “that their actions are more or less unpredictable, and that thoughtless and impulsive acts of children are to be expected and guarded against.” The tender age of a pedestrian may be one of many factors considered by the jury in determining, as is their function [Welch v. McNeely, supra, 269 S.W.2d loc. cit. 876 (10)], the precise place where, and time when, such pedestrian comes into a position of imminent peril under the humanitarian doctrine. But, even if that were a proper subject of instruction (a question which we need not explore), the abstract language of section 2 was not so limited and conveyed no such message. Generally speaking, to anticipate and guard against the thoughtless and impulsive acts of children is associated with the duty to maintain a vigilant lookout [Hildreth v. Key, supra, 341 S.W.2d loc. cit. 607], the violation of which creates a cause of action for primary, not humanitarian, negligence. Cunningham v. Thompson, Mo., 277 S.W.2d 602, 609(8); Murphy v. St. Louis Public Service Co., 362 Mo. 772, 777, 244 S.W.2d 31, 34(4); Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 93, 85 S.W.2d 116, 124(17). And the abstract language of section 2 covered and included the precautionary vigilance or alertness required of a motorist prior to an emergent situation of imminent peril, for the want of which a cause of action likewise is raised by the law of primary negligence, not by the humanitarian doctrine. Anderson v. Prugh, 364 Mo. 557, 566-567, 264 S.W.2d 358, 365(12).

In undertaking to support instruction 2, plaintiffs emphasize that it did not direct a verdict and they point out certain language, to wit, (1) “as used herein” in clause (b) of section 1, (2) “as that term [negligence] is used in these instructions” in clause (c) of section 1, and (3) “in that regard” introducing section 2, as affording (so they assert) such “clear reference to” their verdict-directing instruction 1 and defendant’s instruction 6 (which conversed one essential element of plaintiffs’ humanitarian submission) “that defendant’s duty stated in instruction 2 was limited to the time after Michael Dillon was in a position of imminent peril.” But this argument is not satisfying or convincing. For, in most of the above-cited cases, the disapproved instructions were not verdict-directing but were “separate in form, as ours is” [Downing v. Dixon, Mo., 313 S.W.2d 644, 649]; and, in several instances, language such as that relied upon by instant plaintiffs did not save similar instructions from judicial condemnation.

On this point, plaintiffs cite four cases. The first, Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234, is cited in support of counsel’s statement that “the statutory duty to exercise the highest degree of care is applicable to a humanitarian negligence case involving an automobile”; but, as we have noted, no duty arise» under the humanitarian doctrine until a situation of imminent peril comes into Deing. In State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667, 669, an instruction simply defining “the highest degree of care” was given and (as pointed out in Downing v. Dixon, supra, 313 S.W.2d loc. cit. 649) on appeal was found not prejudicially erroneous as against the complaint “that it was merely an abstract statement of law.” The objection that the instruction injected primary negligence into a humanitarian submission was neither raised nor ruled. On its face, Fair v. Thompson, 240 Mo.App. 664, 212 S.W.2d 923, 930 (13, 14), would seem to afford support for instant plaintiffs’ instruction 2. However, both Fair v. Thompson, supra, and Hoelzel v. Chicago, R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126, 130 (cited in the Fair case as supporting the instruction there attacked), were among the cases listed in Anderson v. Prugh, supra, 364 Mo. loc. cit. 564-565, 264 S.W.2d loc. cit. 363, as not in accord with other cases more recently decided by the Supreme Court.

The fourth case cited by plaintiffs is Wright v. Osborn, 356 Mo. 382, 388-389, 201 S.W.2d 935, 939-940, where the instruction under attack “was only a definitive instruction” which stated the meaning of “the highest degree of care” and (as the court specifically noted) did not even include the further statement that “ ‘the failure to exercise the highest degree of care would constitute negligence.’ ” The court understandably did not believe that this instruction “opened to the jury the door to the consideration of primary negligence”; but, if it did, defendants’ limiting instruction, which told the jury “[i]n no uncertain terms * * * that regardless of any other fact or issue Osborn was under no duty whatever to the boy until peril arose and Osborn could have known of the peril,” effectively foreclosed consideration by the jury of any possible theory of primary negligence. Instant plaintiffs’ instruction 2 was by no means so innocuous for, although “highest degree of care” was defined in clause (b) of section 1, this definition was preceded and followed by declarations in clauses (a) and (c) of section 1 which stated “the duty, generally, applicable to any ground of negligence, of persons operating automobiles on public highways” [Reiling v. Russell, supra, 348 Mo. loc. cit. 284, 153 S.W.2d loc. cit. 9; Downing v. Dixon, supra, 313 S.W.2d loc. cit. 648], and section 2 then directed attention to defendant’s duty to anticipate and guard against thoughtless and impulsive acts of children. All of this was without limitation to the period after Mike came into imminent peril and without any clear reference' to or any explained connection with defendant’s duties as set forth in plaintiffs’ verdict-directing instruction 1. Furthermore, plaintiffs had pleaded defendant’s alleged primary negligence in failing to keep a proper lookout, and evidence in support of that assignment had been offered. In these circumstances, it would he unreasonable to assume that the jury could have differentiated and did differentiate between the primary duties of defendant as stated in instruction 2 and his humanitarian duties as stated in instruction 1. And plaintiffs’ erroneous instruction 2 was not corrected or cured by defendant’s instruction 6 (which referred specifically to instruction 1 and conversed one essential element of plaintiffs’ humanitarian submission) but rather conflicted therewith and was contradictory thereof. Anderson v. Prugh, supra, 364 Mo. loc. cit. 567, 264 S.W.2d loc. cit. 365(14).

In fine, the inherent vice of instruction 2 was that it was not “so worded as to exclude a recovery based on primary negligence.” White v. Kansas City Public Service Co., supra, 347 Mo. loc. cit. 898, 149 S.W.2d loc. cit. 377(1); McDonough v. St. Louis Public Service Co., supra, 350 S.W.2d loc. cit. 746. See Cunningham v. Thompson, supra, 277 S.W.2d loc. cit. 610(17); Sperry v. Tracy Dodge-Plymouth Co., supra, 344 S.W.2d loc. cit. 115. Viewed in the light most favorable to plaintiffs, instruction 2 confused and commingled duties imposed in primary negligence cases with those imposed under the humanitarian doctrine [Anderson v. Prugh, supra, 364 Mo. loc. cit. 566, 567, 264 S.W.2d loc. cit. 365] and was likely to have been understood as inj ecting primary negligence into the humanitarian submission. Sperry v. Tracy Dodge-Plymouth Co., supra, 344 S.W.2d loc. cit. 114. On the record before us, we are satisfied that instruction 2 was preju-dicially erroneous.

Defendant also assigns error in the giving of plaintiffs’ damage instruction 3, which included this language: “In determining the amount of such necessary pecuniary injury, if any, the law does not afford you an exact standard of measurement more accurate than that given above, but it does permit you to take into consideration your common knowledge and experience in life in connection with all the evidence relating to such injury, if any * * Similar language has been expressly condemned as prejudicially erroneous. Vinson v. East Texas Motor Freight Lines, Mo., 280 S.W.2d 124, 133(9); Petty v. Henroid, Mo., 313 S.W.2d 688, 690(4); Downing v. Dixon, supra, 313 S.W.2d loc. cit. 649(2). Citing Brewer v. Rowe, 363 Mo. 592, 252 S.W.2d 372, plaintiffs contend that the giving of their instruction 3 did not constitute reversible error because the court also gave defendant’s instruction 4 properly directing the jury as to the allowance of damages in an action of this character. Since the case must be reversed and remanded anyway, wé do not further prolong this opinion by discussion of this point; but, if the case is retried under our present system of instructing the jury, obviously the quoted language should not be used.

For the reasons stated, the judgment for plaintiffs is set aside and the cause is remanded for retrial.

RUARK, P. J., and HOGAN, J., concur.

      . E.g., in Bunch v. Mueller, 365 Mo. 494, 501, 284 S.W.2d 440, 445, the jury could have determined “as a matter of common knowledge” that a girl 10 ran “at around 5 or 6 miles per hour”; in Edwards v. Dixon, Mo.App., 298 S.W.2d 466, 469(4), the jury could have found “[n]ot only from the evidence, but as a matter of common knowledge” that a boy 9 ran “around 5 or 6 m.p.h.”; and, in Triller v. Hellwege, Mo., 374 S.W.2d 104, 106, plaintiffs’ “traffic engineer” testified that the “average running speed of an eight-year-old girl is approximately 6 to 8 m.p.h.”

      . The then current issue of the Missouri Drivers Guide showed at lfi mph a braking distance of 82 feet (no figure was shown for 45 mph), and the latest issue of the Guide (which accords appropriate recognition to differences in “brake gripping efficiency”) shows at 45 mph a braking distance of 90 feet with “excellent” brake gripping efficiency, of 104 feet with “good” brake gripping efficiency, and of 135 feet with “fair” brake gripping efficiency.

      . The latest issue of the Missouri Drivers Guide shows at 45 mph total stopping distances of 139% feet with “excellent” brake gripping efficiency, of 153% feet with “good” brake gripping efficiency, and of 184% feet with “fair” brake gripping efficiency.

      . In the latest issue of the Missouri Drivers Guide, the tables of “Speed and Stopping Distances” include, for each speed: shown, the distances traveled not only during a reaction time of three-fourths second but also during a reaction time of one second; and, in the footnotes to the same tables, it is said that “tests have shown the time required for the average driver to put his foot on the brake pedal, after seeing approaching danger, ranges from three-Quai-ters of a second to as much as one and one-half seconds.”

      .In Faught v. Washam, Mo., 329 S.W.2d 588, 598, the sole case cited by instant plaintiffs on this point, the only complaint (about the experimental evidence) presented or ruled was, in substance, that the experiments had not been conducted under visibility and roadway conditions substantially similar to those prevailing at the time of accident. That is not the complaint here.

      . Montgomery used and followed the tables of “Speed and Stopping Distances” in the then current issue of the Missouri Drivers Guide. The latest issue of the Guide shows at 40 mph a “total stopping dis-tanee” of 115 feet with “excellent” brake gripping efficiency, of 128 feet with “good” brake gripping efficiency, and of 151 feet with “fair” brake gripping efficiency.

      . Davis v. Quality Oil Co., Mo., 353 S.W.2d 670, 673(2, 3); Ornder v. Childers, Mo., 327 S.W.2d 913, 916(3); Yarring-ton v. Lininger, Mo., 327 S.W.2d 104, 108(2-4); Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930(3); Batson v. Ormsbee, Mo.App., 304 S.W.2d 680, 683 (4), and cases there cited.

      . Thayer v. Sommer, Mo., 356 S.W.2d 72, 76(3); Downing v. Dixon, Mo., 313 S.W.2d 644, 648-649(1); Barnes v. Jones, Mo., 306 S.W.2d 512, 515-516(2); Reiling v. Russell, 348 Mo. 279, 283, 153 S.W.2d 6, 8-9(2); Wright v. Hummel, Mo.App., 164 S.W.2d 640, 643-644(2).

      . Downing v. Dixon, supra, 313 S.W.2d loc. cit. 648-649; Barnes v. Jones, supra, 306 S.W.2d loc. cit. 515-516; Wright v. Hummel, supra, 164 S.W.2d loc. cit. 643; Sperry v. Tracy Dodge-Plymouth Co., Mo., 344 S.W.2d 108, 114. See Thayer v. Sommer, supra, 356 S.W.2d loc. cit. 76.

      . In Sperry v. Tracy Dodge-Plymouth Co., supra, 344 S.W.2d loc. cit. 114, the instruction not only included such language as “the terms ‘negligence’ or ‘negligently’ as used in these instructions and applied to defendant” and “in this connection” but also referred to “other persons upon such streets who may be imperiled” and to defendants’ duty “to discover persons so imperiled” and closed with “negligence as that term is used herein and applied to the defendants”; in Downing v. Dixon, supra, 313 S.W.2d loc. cit. 648, the instruction included “it is in that sense that the terms ‘highest degree of care’ and ‘negligence’ are used in these instructions”; and in Wright v. Hummel, supra, 164 S.W.2d loc. cit. 643, the instruction included “as you may find the same [highest degree of care] used in the instructions of the Court” and closed with “as that term [negligence] is used in these instructions.”