author: LEEDY, Judge.

text:
    L. R. GRAY, L. L. Jolliff and Jack Andrews, Appellants, v. REORGANIZED SCHOOL DISTRICT R-4 OF OREGON COUNTY, Missouri, Haskell Holman, State Auditor, et al., Respondents.
    No. 49014.
    Supreme Court of Missouri, En Banc.
    March 26, 1962.

      Wm. C. Scott, West Plains, for appellants.
    Thomas F. Eagleton, Atty. Gen., Wayne W. Waldo, Asst. Atty. Gen., Jefferson City, for respondent Holman.
    A. W. Landis, Hogan & Hogan, Robert E. Hogan, West Plains, Patrick O. Freeman, Jr., Thayer, for respondent School District
   LEEDY, Judge.

At a special election held Saturday, March 25, 1961, there was submitted to the voters of Reorganized School District R-4 of Oregon County a proposition that the district incur indebtedness in the sum of $330,000 and issue bonds for the payment thereof for the purpose of purchasing a site, erecting thereon a new high school building, and furnishing the same. The proposition carried by the requisite two-thirds majority (Art. VI, § 26(b), Const, of Mo.1945, and § 165.040), 1477 ballots having been cast fo.r the loan and 636 against it. Plaintiffs, as resident taxpayers of the district, then brought this action in two counts challenging the legality of the election, and, in consequence, the validity of the bonds. One count sought an injunction against the State Auditor enjoining registration of the bonds under § 108.240, and the other count was for a declaratory judgment determining- the district to be without authority to issue the bonds. The trial court found the issues in favor of defendants and against plaintiffs, and entered judgment declaring the validity of the bonds and denying the injunction, from which judgment plaintiffs have appealed.

All grounds of attack upon the election and the bonds have been abandoned, except one, so that the single question for determination on this appeal is that of the sufficiency of the notice of election.

§ 165.040, under the authority of which the election in question was held, provides with respect to notice as follows: “Notice of such election shall be given at least fifteen days before the same shall be held, by at least five written or printed notices, posted in five public places in the school district where such election is to be held, stating the amount of the loan required, and for what purposes. It shall be the duty of the clerk to sign and post such notices. ⅝ ⅜ ⅜»

The notice in question was appropriately headed “Notice of Bond Election, Oregon County School District R-4 of Oregon County, Missouri.” Its pertinent recitals were that notice “is hereby given to the qualified voters * * * that a special election will be held in said School District on Saturday, March 25, commencing at six o’clock A.M., and closing at seven o’clock P.M., * * * .” After specifying the purpose of the election (as hereinabove set out), designating the four polling places, and stating that the “voters at said election will vote by ballot in the form provided by law,” it concluded thus:

“Done by order of the Board of Education this 2nd day of March, 1961.

“(Signed) D. H. Gohn
“Secretary of the Board of Education of Oregon County School District R-4 of Oregon County, Missouri.”

The defect in this notice of which plaintiffs complain is that it gave “Saturday, March 25” as the date of the election, but omitted to state or include the year in such date-designating phrase. In furtherance of their position, the first proposition advanced by plaintiffs is (as has been frequently held) that time and place are of the substance of every election, and failure to comply with the law in these particulars is not generally to be treated as a mere irregularity. State ex inf. Stipp, etc. v. Colliver, (Mo.) 243 S.W.2d 344, 349; Cooley on Const’l Limitations, 8th Ed., Vol. II, 1399; State ex rel. Fahrman v. Ross, 160 Mo.App. 682, 693, 143 S.W. 502. From this premise it is argued that the omission to specify the year in the designation of the time for holding the election amounted to a failure to state when the election would be held, and hence violative., and within the condemnation, of this rule. Alternatively, it is contended that the doctrine of substantial'compliance is not here applicable because of the rule that legislative requirements as to time and quantity of notice of such a special election as the one. in question must be strictly complied with, so that as to those matters the only substantial compliance is actual compliance in full. State ex rel. City of Berkeley v. Holmes, 358 Mo. 1237, 219 S.W.2d 650; American Legion Phillips Post v. City of Malden, (Mo.App.) 330 S.W.2d 189.

One of the prime objects of the notice required by § 165.040 is to apprise the electorate when the election is to occur. “The date in its ordinary meaning imports the day, month, and year, and this is also the legal significance of the word, and unquestionably is the popular as well as the technical meaning, the day of the month being quite as much a part of the date as the month or the year. When day, month, and year are thus stated, the term is definite, certain, and complete.” 25 C.J.S. 1003. See, also, Interior Linseed Co. v. Becker-Moore Paint Co., 273 Mo. 433, 202 S.W. 566. It is to be noted that § 165.040 does not provide that the “date” of the election shall be embodied in the notice, at least not in the precise sense that the term “date” is defined above; but undoubtedly the notice must contain a sufficient designation of the time at which the election is to be held as will fairly and distinctly inform the voters thereof. It may be conceded that the requirements of careful and exact draftsmanship would not be satisfied by the statement in such a notice of anything less than day, month and year, but here we are dealing with a statutory provision the execution of which will usually be carried out by laymen or those unskilled in the niceties of legal phraseology, and therefore its interpretation should not be so narrow and unyielding as to render it unworkable in the hands of those who are to administer it. In this connection, it may be added that there had been eight previous special bond elections held in the district within less than two years next before March 25, 1961, at each of which this proposition (identical except for a reduction of $20,000 in the amount sought to be authorized) had been submitted — and defeated. The last of such preceding elections next before the one in question had been held on February 25, 1961, a matter of a few days before the posting of the present notices. The total number of votes cast in the challenged March 25, 1961 election exceeded by 25% the highest vote in any of the preceding bond elections.

Plaintiffs urge upon us as persuasive authority a case decided by the Supreme Court of Wisconsin, State ex rel. Baxter v. Beckley, 192 Wis. 367, 212 N.W. 792, where the year was held to be an essential part of the required date to be appended to the signature of each of the voters joining in the recall petition there involved, and for the omission of which as to a number of signatures thereon, such petition was held insufficient to require the holding of the recall election. We do not pause to further notice that case, not so much because it did not involve the sufficiency of a notice of election, but, more importantly, we think that, on the merits, the dissenting opinion (which rejected the interpretation just mentioned) represented the better and more logical view. Opposed in principle to this Wisconsin holding is our own case of Adams v. Boyd, 332 Mo. 484, 490, 58 S.W.2d 704, 706, where, with respect to the time of a foreclosure sale under a deed of trust, the notice merely stated that such sale would be held “on December 10, between the hours of Nine o’clock A.M. and Five o’clock P.M.,” and omitted to state the year; held, that the current year was meant, and the sale valid. A like holding is found in Parmly v. Walker, 102 Ill. 617. And see 86 C.J.S. Time § 10, p. 838, where it is stated, “When a month is referred to without any designation of the year, it will be understood to be of the current year unless, from the connection in which it is used, it is apparent that another year was intended * *

The notice did fail to give the date of the election as fully and completely as it might have been stated, but even so the case is not governed by such cases as State ex rel. City of Berkeley v. Holmes, supra, and American Legion Phillips Post v. City of Malden, supra, as plaintiffs contend. In the former case, the statute required that notice of the special bond election be published once a week for three consecutive weeks in a newspaper, and that the first publication be at least twenty-one days before, and that the last be within two weeks of, the date of the election. There the first publication was only nineteen days (not twenty-one) before the date of the election, and this was held to invalidate the election, the statutory provisions as to time of notice being mandatory. The latter case applied the same principle, the holding being that inasmuch as the special election ordinance required four weeks’ publication before the special annexation election, three weeks’ publication was not a substantial compliance, thus rendering the election invalid. After reviewing the authorities, the opinion properly concluded “that, while there may be a ‘substantial compliance’ in something less than exactness when the form, content or regularity of issuance of the notice of a special election is concerned, the legislative requirements as to time and quantity of notice must be strictly complied with and that the only substantial compliance is actual,. compliance in full. A holding that a lesser notice will do would amount to judicial' legislation on our part.” It is apparent that unless omission of the year amounted to a failure to state when the election would be held, these cases are not in point for the .reason that no question arises as to the fact that the notices in question were posted at least fifteen days before the election was held. Only in the event the notices had been posted less than fifteen days before the election would our case be brought within the doctrine of the Holmes and City of Malden cases.

It may be noted that in the years following 1961, March 25 would not again fall on Saturday until 1967. The notice was dated “March 2nd, 1961,” and informed the voters that the election would be held “Saturday, March 25.” Surely no reasonable person .reading this notice as a whole would conclude that the election would be held in 1962, or some subsequent year. On the contrary, it seems obvious that it was sufficient to advise any such person that the election was imminent and would occur in the then current year, and we so hold. It therefore met the requirements of the statute and was sufficient.

Judgment affirmed.

All of the Judges concur.

      . All statutory references are to RSMo 1959 and to the corresponding section numbers of V.A.M.S., unless otherwise noted.


source: Caselaw Access Project

author: HOLMAN, Commissioner.

license: Public Domain

text:
    Bruce E. MYERS, Respondent, v. William L. SEARCY, Appellant.
    No. 48720.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied April 9, 1962.

      Hilary A. Bush, Paul E. Vardeman, Jr., Johnson, Lucas, Bush & Vardeman, Kansas City, for appellant.
    Robert I. Adelman, Kansas City, for respondent.
   HOLMAN, Commissioner.

Plaintiff instituted this action in an effort to recover damages for personal injuries in the sum of $50,000. The trial resulted in a verdict for the defendant. Thereafter, the trial court entered an order sustaining plaintiff’s motion for new trial on the sole ground that the court erred in giving Instruction No. 4 at the request of the defendant. Defendant has appealed from that order.

The collision in question occurred at about 6:30 a. m. on January 21, 1959 in the northeast quadrant of the intersection of 63rd and Benton Streets in Kansas City, Missouri. It was snowing at that time and the streets were snow-packed and rather slick. It was dark enough that all of the cars herein mentioned were using their lights. The cars involved were going eastwardly on 63rd which was 40 feet wide and slightly upgrade at that point. Plaintiff intended to make a left turn in order to go north on South Benton. His car was followed closely by a Chevrolet car driven by Robert Clay. Defendant’s car was behind the cars of plaintiff and Clay. As the cars neared South Benton defendant pulled his car to the left and started to pass the other two cars. At that time plaintiff began his left turn into South Benton and defendant was unable to stop his car until after it had collided with the left door of plaintiffs automobile.

Plaintiff testified that his car was in excellent condition and was equipped with snow tires and traction drive; that his left-turn directional light had been operating for approximately a half block before he arrived at South Benton; that the left side of his car was approximately on the center line of 63rd Street and his car was being followed by a Chevrolet; that when his car arrived at the intersection he came almost to a dead stop in order to permit a bus and a car going westwardly to clear the intersection; that he then gave a left-turn hand signal and started his left turn; that when he had made about a third of his turn he saw approaching headlights in his outside rear-view mirror; that he then jammed on his brake and stopped but the approaching car collided with the center of the door of his car; that before starting his turn he had looked to the rear or glanced in the rear-view mirrors and had seen only the Chevrolet car behind him; that his automobile had proceeded from 2½ to 4 feet north of the center line by the time he saw defendant’s headlights and he then stopped in one foot; that the point of impact was on the center line of the street.

Robert Clay testified that he was driving behind plaintiff’s car and had the chains on his car; that he was following at a slow pace and as the cars neared South Benton plaintiff’s left-turn signal light was operating but he didn’t see plaintiff give an arm signal; that he had not noticed defendant’s car until it started around his car; that he didn’t recall hearing a signal from defendant’s car; that when the front end of defendant’s car was even with his (Clay’s) rear fender plaintiff started his left turn; that when defendant applied his brakes his car slid a little to the left; that defendant tried to stop but it was so slippery there wasn’t much that could be done and he struck plaintiff’s car in the northeast quadrant of the intersection; that although it was snowing a person could see at that time for a block .or a block and a half; that he didn’t believe plaintiff’s car stopped at the intersection before starting its left turn; that defendant’s car was going about 25 m. p. h. at the time he first noticed it.

Defendant testified that on the morning in question his car was equipped with snow tires and he also had on chains; that as he approached South Benton he saw the Clay and Myers cars ahead of him and thought they were stalled; that he didn’t want to stop on the hill so he pulled to the left, sounded his horn, and started around them; that when the front of his car was even with the rear fender of the Clay car he saw plaintiff start his left turn and he (defendant) sounded his horn, put on his brake, and pulled to the left hoping to pass to the left of plaintiff’s car, but plaintiff failed to slacken his speed at all and the cars collided; ■ that at the time he started to pass, the cars of Clay and plaintiff were about six feet to the right of the center line and there wasn’t sufficient room to safely pass them on the right; that plaintiff did not give an arm signal and the glass was up in his left door; that he was about 50 feet from plaintiff’s car at the time it started the left turn and a person could see for a block at that time; that his car was going about 20 m. p. h. when he turned out to pass; that he saw the taillights on plaintiff’s car but did not see any turn indicator flashing.

Plaintiff’s case was submitted to the jury upon the hypothesized acts of defendant in turning his car to the left side of 63rd Street and attempting to pass plaintiff’s car within 100 feet of the intersection. See Section 304.016, subd. 4(2) RSMo 1959, V. A.M.S. As we have indicated, the trial court granted a new trial because of error in giving Instruction No. 4 which reads as follows: “The court instructs the jury that it was the duty of plaintiff to exercise the highest degree of care to keep a lookout to avoid turning into the path of other vehicles being operated on 63rd Street. Therefore, if you find and believe from the evidence that the plaintiff saw or by the exercise of the highest degree of care could have seen defendant’s automobile approaching and passing, if so, in time to have stopped his automobile and thereby have avoided the collision, if so, but that plaintiff negligently failed so to do and if such negligence directly caused or directly contributed to cause the collision, if so, then your verdict must be for the defendant.”

Plaintiff did not make any specific objections to Instruction No. 4 at the trial. Defendant has briefed the contention that the objections to this instruction contained in plaintiff’s motion for new trial are not sufficiently specific to preserve anything for review. See S.C. Rules 70.02 and 79.03, V.A.M.R. Plaintiff, in his brief, has specified three respects in which he says the instruction was erroneous. We have examined the motion and have decided that it contains specifications of error in regard to said instruction which are sufficient to warrant a review of the three contentions briefed by plaintiff.

The instruction in question is somewhat unusual. No case has been cited, and we have found none, in which a similar instruction has been given. Its underlying theory would appear to be the failure of plaintiff to keep a proper lookout, but it will be noted that the instruction does not expressly submit failure to keep a lookout. Also, it did not submit plaintiff’s failure to give a reasonably adequate and timely warning of his intention to make a left turn, a submission often given in cases of this nature. However, it is not necessary to its validity that an instruction he so worded that it will fall into a particular classification. In determining the validity of this instruction we will bear in mind that “Instructions on contributory negligence should require findings that plaintiff was guilty of the act of commission or omission attributed to plaintiff; that such conduct constituted negligence on plaintiff’s part, and that this negligence of plaintiff, if any, directly contributed to plaintiff’s injury; that is, plaintiff’s negligence entered into and formed a part of the direct, producing or efficient cause of the injury, without which the casualty would not have happened.” Danner v. Weinreich, Mo.Sup., 323 S.W.2d 746, 750.

The first contention of plaintiff is that the instruction is erroneous because it placed a duty upon him which, under the law, he was not required to perform. It is said that defendant was violating the statute in passing at that place and that plaintiff had a right to assume that the law would not be violated and hence was under no duty to keep a lookout for such a vehicle.

We think plaintiff was under a duty to keep a lookout under the circumstances here shown. “The driver of a motor vehicle has the duty to keep a proper lookout and to watch where he is driving, * * * and his failure to do so is negligence, which will prevent his recovery for injuries sustained as a result thereof, even though the other person is also at fault. * * * [A] motorist intending to make a left turn at an intersection must see to it that the movement can be made in safety, that there is sufficient space for the turn to be so made, and that the turn can be made without danger to normal overtaking or oncoming traffic; and he must accordingly proceed with caution and take care to avoid collisions with other vehicles. * * * The driver contemplating a left turn must keep a vigilant lookout for approaching vehicles, and also for vehicles which may be following him.” 60 C.J.S. Motor Vehicles § 284(a), pp. 661, 662, and § 367(c), (1), pp. 908, 909. See also Auckley v. Robbins, La.App., 45 So.2d 380. In this connection we have also recently said that “An operator of an automobile on a public highway cannot assume that another automobile would not be present on the highway under circumstances that would be in violation of the rules of the road and for that reason not maintain the continuous lookout required of drivers.” Pitts v. Garner, Mo.Sup., 321 S.W.2d 509, 518. We accordingly rule plaintiff’s first contention adversely to him.

Plaintiff’s second contention of error in regard to said instruction is that it is contrary to all the evidence in the case. Perhaps that should be considered as a contention that there was no evidence to support the submission. We think there was ample evidence to support this instruction. There was evidence that when plaintiff started his left turn defendant’s car was already on the left side of the street and about 50 feet to the rear. If plaintiff had looked at that time he could have seen defendant’s car passing the car driven by Clay and plaintiff could then have stopped his automobile and thus have avoided the collision. His own testimony was to the effect that he did stop his car in a distance of one foot when he actually did see defendant’s headlights. This point is accordingly overruled.

The third contention of plaintiff is that the instruction was reversibly erroneous because it failed to hypothesize any facts which would entitle defendant to a verdict. He cites the case of Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54, wherein we held a sole cause instruction to be reversibly erroneous because it did not hypothesize the facts showing a sole cause situation. Many similar cases could be cited. However, in the case before us we think the instruction did hypothesize the facts essential to a defendant’s verdict. It required a finding that plaintiff saw or could have seen defendant’s car approaching in time to have stopped his automobile and thereby have avoided the collision. These facts, together with a finding of negligence and causation, were all that needed to be found in order to entitle defendant to a verdict. It is true that other evidentiary facts concerning the physical surroundings and the location and movement of the cars could have been hypothesized. However, the factual situation involved was simple and there was very little conflict in the evidence concerning the physical surroundings and the location and movement of the cars shortly before the collision. In that situation, it was sufficient to hypothesize only the essential ultimate facts as was done in the instruction under review. Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972; Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496.

For the reasons heretofore stated, we rule that Instruction No. 4 was not prej-udicially erroneous in any of the respects specified in plaintiff’s motion for new trial and thereafter developed in his brief. It follows that the trial court erred in granting plaintiff a new trial on the basis of error committed in the giving of that instruction.

Plaintiff also contends that a new trial was properly granted in this case for reasons not specified by the trial court. He points to alleged erroneous rulings in connection with his examination and cross-examination of two witnesses who testified concerning plaintiff’s injuries. We need not determine the merits of those contentions. The rulings complained of would only affect the amount of plaintiff’s verdict in the event he prevailed on the issue of defendant’s liability. Since the verdict was for the defendant as to liability the jury did not reach the question concerning the amount of plaintiff’s damages. It follows that plaintiff could not have been prejudiced by these alleged errors. Russell v. Kotsch, Mo.Sup., 336 S.W.2d 405.

The order granting a new trial is reversed and the cause is remanded with directions to the trial court to reinstate the verdict of the jury and enter judgment thereon in favor of the defendant.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court.

All concur.


author: BARRETT, Commissioner.

text:
    Robert W. CHAMBERS, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
    No. 48682.
    Supreme Court of Missouri, Division No. 2.
    April 9, 1962.

      George W. Holmes, Mark M. Hennelly, Allen D. Churchill, St. Louis, for appellant.
    Edward W. Fredrickson, St. Louis, for respondent; William L. Mason, Jr., St. Louis, of counsel.
   BARRETT, Commissioner.

Robert W. Chambers was a heavy equipment operator employed by the Missouri Pacific Railroad Company. Beginning in January 1959, his job was to operate a “dozer and buggy,” earth moving machinery consisting of a bulldozer attached to a large scoop or “bucket.” He claims that he was not familiar with the clutches or other mechanism by which the buggy was controlled and that, except to grease, casually inspect and operate, he had not been instructed in the repair of the machinery. In this action under the Federal Employers’ Liability Act (45 U.S.C.A. § 51), Chambers claims that his employer furnished him an unsafe tool and machine with which to work and that on April 15, 1959, he was injured as he attempted to dump and spread a load of dirt from the buggy. In his petition the charge of unsafe machine was that “when plaintiff moved and actuated a lever on said dozer which controlled the operation of the cables on said buggy in the usual and ordinary manner, the said lever did not move and function in the usual and ordinary manner, but instead moved suddenly and violently in a sudden, unanticipated, unusual and violent manner." In so far as material here the hypothesis of his instruction 5 was that certain operations of the machine were controlled by a lever which normally operated without any unusual movement, but on this particular occasion “the plaintiff pushed said lever in the said usual and customary manner; and that the said lever then and there moved suddenly, violently, and in an unusual manner; and that such movement directly caused injury to plaintiff; then you are instructed that such facts, if you believe them to be true, are sufficient evidence to warrant a finding by you that the said machine was not reasonably safe and that defendant failed to exercise ordinary care and was thereby negligent in providing it for plaintiff to work with, and you may so find, unless you find and believe from other facts and circumstances in evidence that the defendant was not negligent; * *

In support of his claim Chambers testified that between 2 and 2:30 o’clock on tbi afternoon of April 15, 1959, he reached back with his right hand to “get this left lever and bring it over to your right” to dump and spread the load of dirt. It was while engaged in this operation, “While dumping this dirt out, that’s whenever I got the jerk.” He said, “1 had my hand back on the lever pulling the dirt forward and something gave me that jerk to my shoulder and jerked me back." He described the jerk as “hard,” pulling his shoulder and neck, and “I automatically turned everything loose * * * knocked loose from this lever here.” Chambers said that two weeks previously he had experienced some difficulty with the levers, the trouble was “operating awfully hard.” He told fellow employees about the difficulty, particularly Mr. Johnson, the motorcar repairman. Mr. Johnson said something about the clutches being in bad shape “and he told me I hadn’t been running the damn thing enough to get the rust off of the clutches.” He was alone, three or four hundred yards from the dragline, when he experienced this mishap and “was knocked loose” from the lever. He did not know what caused the lever to jerk. And, he said, “I didn’t realize I was hurt at that time,” he “stretched around” while sitting on the dozer and hauled three or four more loads of dirt “before quitting time because we have to quit early in order to get in in time or schedule.”

In these circumstances the railroad urges that the court erred in overruling its motions for a directed verdict for the reason that Chambers “failed to make a sub-missible res ipsa loquitur case” in that he (1) demonstrated or could have demonstrated by his evidence the cause of his alleged injury, (2) failed to produce evidence easily within his reach, and (3) demonstrated by his evidence that the offending instrumentality was under his control and within his superior knowledge. In substantiation of its position the railroad reviews several cases dealing with res ipsa loquitur as the doctrine has been expounded and applied to particular circumstances by this court, for example the leading cases of McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641, and Gordon v. Muehling Packing Company, 328 Mo. 123, 40 S.W.2d 693. But it is not necessary in this opinion to attempt a further exposition of the doctrine, to consider its rationale, or even to indicate what this court thinks the constituent elements of the doctrine may be. “The views of the Federal courts, not the state courts, constitute the supreme law on questions arising under the Federal Employers’ Liability Act.” Allen v. St. Louis-San Francisco Railroad, (Mo.) 297 S.W.2d 483, 488, a case relied on by the appellant. And, it has become established almost beyond question that in appropriate circumstances the doctrine of res ipsa loqui-tur is applicable in cases under the act. Jesionowski v. Boston & Maine R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416; Warner v. Terminal Railroad Ass’n of St. Louis, 363 Mo. 1082, 1091, 257 S.W.2d 75, 79. When the doctrine is applicable, a verdict may be directed for a defendant in a case arising under the act, “However, such judicial action is justified only in the rare case where the circumstances are such that no jury would be justified in rejecting the evidence of the defendant which, if true, would be sufficient to rebut the inference created by the application of the res ipsa loquitur doctrine.” Annotation (Res ipsa loquitur in Federal Employers’ Liability Act cases) 35 A.L.R.2d 475, 562; Terminal R. Ass’n of St. Louis v. Staengel, 8 Cir., 122 F.2d 271.

If there was an “extraordinary happening” it is immaterial that there was divided control of the offending instrumentality (Jesionowski v. Boston & Maine R. Co., supra), and “proof that plaintiff was operating or was working with the instrumentality (a motorcar) involved in the accident did not bar the right of plaintiff to proceed under the res ipsa loquitur doctrine when there was evidence that his operation did not cause the accident and there was evidence from which the jury could infer negligence, which was the proximate cause of the accident, in the operation, maintenance or repair of an instrumentality when that operation, maintenance or repair was under the exclusive control of the defendant.” Allen v. St. Louis-San Francisco Railroad, 297 S.W.2d, 1. c. 488; Cantley v. Missouri-Kansas-Texas R. Co., 353 Mo. 605, 183 S.W.2d 123. The sudden stop or jerk of a train, in the absence of positive evidence of specific conduct or defect, is an unusual occurrence or an “extraordinary happening.” Annotation 60 A.L.R.2d 637; Heppner v. Atchison, T. & S. F. Ry. Co., (Mo.) 297 S.W.2d 497. Chambers was there, he had experienced some previous difficulty with the lever, but the railroad does not indicate just what evidence he failed to produce or how he did or could "have demonstrated * * * the cause of his alleged injury.” In Wiles v. New York, Chicago & St. L. R. Co., 3 Cir., 283 F.2d 328, the stem or ratchet on a large jack gave way and it was held that the plaintiff was “entitled to the inference of negligence afforded by the res ipsa loquitur doctrine since the jack and its internal mechanism were under the Railroad’s exclusive control and the accident was not one which would ordinarily occur in the absence of negligence.” If the circumstances in that case justified the jury’s conclusion “that employer negligence played a part in producing the petitioner’s injury” (Moore v. Terminal Railroad Ass’n of St. Louis, 358 U.S. 31, 79 S.Ct. 2, 3 L.Ed. 2d 24), by the same token the circumstances as testified to by Chambers support the inference and conclusion.

The railroad, of course, denied that it was negligent in any manner, but its principal defense was that Chambers was not at work between the hours of 2 and 2:30 on the afternoon of April 15, 1959, or, if he was, that his present disability was due to an accident and injury in 1954. He did not immediately report the occurrence of April 15, in fact the next day, when he went with his friends, the Halls, to a doctor in Falls City, Nebraska, he told the doctor that his back trouble was caused by his backing a bulldozer into a cement embankment in 1954. He told several friends and acquaintances that his present physical disabilities were due to the 1954 accident. It was not until his last discharge from the Missouri Pacific Hospital in St. Louis in August 1959 that he told a claim agent that he had been involved in an accident on April 15, 1959. The railroad’s witnesses, three of the plaintiff’s friends and fellow employees, testified that on April 15, 1959, the dragline boom had broken down and they repaired it in the morning and did not work in the afternoon. They said, after stopping at the home of Chambers’ grandmother and planting some potatoes for her, that they returned to their bunk cars at Hiawatha where from two to four o’clock Chambers and Mrs. Hall watched television, particularly “The Verdict Is Yours” which started at 2 o’clock.

Because of this and other similar evidence the railroad, with considerable force, argues that the jury’s verdict “was so manifestly unsupported by the believable evidence and so palpably against overwhelming evidence to the contrary that to allow the verdict to stand would be a travesty on justice.” Nevertheless, Chambers testified positively that he was injured between the hours of 2 and 2:30 on the afternoon of April 15, 1959, and that his present injury was due to the accident on that day and not to an injury sustained in 1954. And, there are some circumstances that weaken the railroad’s position. To prove that Chambers did not work in the afternoon the railroad relies wholly on the memory and oral testimony of the Halls and Stensrud, no work records were offered in evidence. Then too, the plaintiff’s neurosurgeon testified that Chambers’ present injury is a “herniated cervical disc at the level of C-5 —C-6 on the right.” It was the opinion of the surgeon that Chambers could not have worked as a heavy equipment operator from 1954 to 1959 if he had sustained such an injury in 1954.

In any event, this is but to illustrate the railroad’s claim and defense, in support of which, incidentally, it does not even purport to cite an authority. The admitted fact that Chambers did not timely and properly report the accident of April 15, 1959, does not create an estoppel or conclusively bar his recovery in this action. Wiles v. New York, Chicago & St. Louis R. Co., 3 Cir., 283 F.2d, 1. c. 331. So also his prior inconsistent claims and statements do not as a matter of law defeat the action. “True, his testimony was contradictory of former statements, but his credibility would be a matter for a jury.” Schnee v. Southern Pac. Co., 9 Cir., 186 F.2d 745, 746. There was evidence in favor of and against the existence of these factual issues and this court may not award a new trial on the ground that the verdict is against the weight of the evidence; “the Circuit Court is the proper tribunal to determine whether the verdict of the jury should stand or not.” Nearns v. Harbert, 25 Mo. 352, 355; Wilcox v. Coons, 362 Mo. 381, 397, 241 S.W.2d 907, 917.

It is in connection with these disputed issues that the railroad contends that the court erred in giving instruction 5, as previously indicated the principal instruction, and instruction 7 on the measure of damages. Following an introductory paragraph and preceding the hypothesis of negligence instruction 5 says, “Therefore, if you find and believe from the evidence that on or about the 15th day of -April, 1959, at or near Willis, Kansas * * Instruction 7, in its introductory paragraph and before listing the items for which damages could be awarded, told the jury, if they found for the plaintiff, that he was to be compensated for injuries and damages “sustained by him on the occasion in question.” It is now urged that the quoted language was broader than the pleadings, “not within the scope of the evidence, failed to require the jury’s determination of the disputed factual controversies, and gave the jury a roving commission.” It is not necessary to further detail the railroad’s argument, specifically its objection is that the jury was not limited to a finding that the accident occurred on April 15,1959, but was permitted to find that it happened “on or about April 15, 1959.”

There are of course circumstances in which the precise time and date of an occurrence and its specific hypothesis is the essence of a case (Crawford v. Arends, 351 Mo. 1100, 176 S.W.2d 1; State v. Armstead, (Mo.) 283 S.W.2d 577), but the problem here is whether these instructions were manifestly prejudicial and require the granting of a new trial by this court. It is in part for this reason that the evidence concerning the weight of the evidence has been set forth. Chambers did not claim and there was no evidence to support a claim that he was injured “on or about” some date, he testified that he was injured between the hours of 2 to 2:30 on April 15, 1959. The jury could not possibly have found or understood that he was injured “on or about” some other time or date or that they could have awarded him damages for injuries sustained on some other occasion. In addition to its evidence on these issues (to say nothing of the arguments to the jury), the railroad offered and the court gave an instruction which told the jury that if they found “that on April 15, 1959, at the time mentioned in evidence that plaintiff was not operating a bulldozer and buggy at Willis, Kansas,” but was in a bunlc car in Hiawatha watching television, he could not recover. Then there was another instruction: “The Court instructs the jury that in this case the plaintiff is seeking to recover for injuries alleged to have been sustained on April 15, 1959, and in no event are you to award him any damages for any condition of injury or ill health, if any, which he may have had or may have sustained before said date of April 15, 1959.” In these circumstances the words “on or about” did not “put the time at large” or unfairly submit an issue about which there could have been the slightest question. Summers v. Tavern Rock Sand Company, (Mo.) 315 S.W.2d 201.

And finally, the railroad urges that “Under the peculiar circumstances of this case, where appellee had sustained numerous prior injuries, the verdict was grossly excessive.” Respondent’s counsel, attacking this assignment in several particulars, has refused to brief the point, and the consequence is that the court is left to its own devices. In the only case cited by the respondent, Knight v. Swift & Company, (Mo.) 338 S.W.2d 795, the assignment was “(t)he verdict is so excessive as to require a new trial” and the court limited its review to that specific problem, whether “the verdict is so excessive as to require a new trial.” While the assignment here is lacking in specificity, it has been held that “the verdict was excessive” and that “the verdict was grossly excessive” assigned errors “arising out of the amount of the verdict and the conditional remittitur order.” Osburn v. Kansas City Southern Ry. Co., 360 Mo. 813, 815, 230 S.W.2d 856, 858. On the other hand, the cases relied on by the appellant are helpful only in so far as they state the general rules applicable to remit-titur procedure in this jurisdiction, for example, Breland v. Gulf, Mobile & Ohio R. Co., (Mo.) 325 S.W.2d 9. Since 1950 there have been at least six cases in this court dealing with various types of disc injuries and the problem here is whether, the trial court having required a remittitur of $5,000 from a $43,000 verdict, the judgment of $38,000 is excessive and requires a further remittitur. Hayes v. Wabash Railroad Co., 360 Mo. 1223, 233 S.W.2d 12.

When Chambers was in the Falls City Hospital Dr. Wilkinson’s diagnosis was a “possibility of a cervical disc injury” and he recommended that Chambers go to the Missouri Pacific Hospital in St. Louis “for further evaluation.” On his first admission to Missouri Pacific Hospital the final diagnosis was “Old sprain, right shoulder and neck.” On his readmission, July 13, 1959, the diagnosis was “Old cervical and lumbar sprain, cervical spondylitis,” and on August 1 the diagnosis was “old sprain in cervical and lumbar regions.” He was discharged from the Missouri Pacific Hospital on August 20, 1959, presumably to return to work. It was on that date that he reported the accident to the claim agent and went to Dr. Jacques P. Schaerer, a neurosurgeon in St. Louis. Dr. Schaerer performed a myelo-gram and, as indicated, his diagnosis was “a herniated cervical disc at the level of C-5 — C-6 on the right.” He could not say from the film that it was “a complete rupture” or whether it “just bulged, * * * it’s either one of those two.” There were no ill effects from the myelogram, but it was the doctor’s opinion that Chambers’ injury was painful, that it was permanent, that he could not continue as a heavy equipment operator and “the only measure from which he can expect relief would be surgical treatment,” the removal of the “protruding portion of the disc and take the pressure off of the nerve root.” The doctor said that surgical results could not be guaranteed but “good results” were had in 80% of the cases and in about 20% of the cases there was no improvement. Chambers has not had surgery. The railroad offered no medical evidence other than the deposition of Dr. Wilkinson and its hospital records and so, in effect, Chambers’ medical evidence stands unchallenged as to the nature and extent of his injuries. As a heavy equipment operator he was paid about $450 a month, he was 42 when the case was tried and has a life expectancy of 31.29 years.

In Kelly v. Kansas City Public Service Co., (Mo.) 335 S.W.2d 159, the plaintiff was 43, there was an established monetary loss of $12,592.92, and a laminectomy to remove a disc, and it was held that a verdict of $36,000 was not excessive. In Van Norman v. Illinois Central R. Co., (Mo.) 320 S.W.2d 512, a man 28 earning about $300 a month had three ruptured discs and an operation and this court reduced a $62,400 verdict $15,000. In Pinter v. Gulf, Mobile & Ohio R. Co., 362 Mo. 887, 245 S.W.2d 88, there was an unsuccessful disc operation, the trial court reduced a $45,000 verdict $5,000 and this court refused to enforce a further remittitur. In Greco v. Hendricks, (Mo.) 327 S.W.2d 241, there was at most a diagnosed disc injury, the plaintiff refused to remit $12,000 from a $32,000 verdict and the trial court granted a new trial. The plaintiff appealed but upon that record it was held that the trial court did not abuse its discretion in granting a new trial on the ground that the $32,000 verdict was excessive. In Hayes v. Wabash R. Co., supra, the first disc case, there was a diagnosed herniated nucleus pulposis and additional injury from a myelogram. The trial court required a remittitur of $5,000 from a $45,000 verdict and this court reduced the judgment to $37,500. In Rogers v. Thompson, (Mo.) 308 S.W.2d 688, the plaintiff was 24 and there was a diagnosis of a ruptured and prolapsed intervertebral disc between the first lumbar and the first sacral vertebrae, and this court declined to require a remittitur from a $40,000 verdict. Whatever one may think of the size of these verdicts and regardless of what the truth may be as to the seriousness and disabling effect of the injury involved in this case, it is not possible in view of these precedents to substantially reduce this judgment of $38,000.

Since, for the reasons indicated, the appellant is not entitled to any of the relief requested, the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C„ is adopted as the opinion of the Court.

All of the Judges concur.


author: PER CURIAM.

text:
    Charles DOMYAN and Rose Domyan, Appellants, v. Thomas DORNIN and Mabel Dornin, Respondents.
    No. 49065.
    Supreme Court of Missouri, Division No. 2.
    April 9, 1962.
    Ted M. Henson, Ted M. Henson, Jr., Poplar Bluff, for appellants.
    George B. Scott, Jr., Poplar Bluff, for respondents.
   PER CURIAM.

Plaintiffs Charles Domyan and his wife Rose filed this suit for possession of certain real estate in Butler County, Missouri. The defendants were Thomas Dor-nin and his wife Mabel who held possession under a contract of sale. Plaintiffs claimed that defendants had breached the contract and therefore under the terms of the contract plaintiffs had the right of possession. Defendants claimed they had not breached the contract. The trial court entered a judgment for the defendants as to possession; the court further decreed specific performance of the contract. An appeal was taken to the Springfield Court of Appeals. That court transferred the case to this court holding that title to real estate was involved. The trial court having decreed specific performance, title to real estate is involved and this court is vested with appellate jurisdiction. Domyan v. Dornin, Mo.App., 348 S.W.2d 360.

In the first two points of their brief, plaintiffs say that the trial court erred in awarding specific performance of the contract because neither the pleadings nor the evidence justified such a decree. In the third point, plaintiffs say that the trial court erred in entering a judgment in favor of the defendants on the issue of possession because the evidence showed defendants were in “default in the payment of the purchase price.”

The evidence showed the following: On October 29, 19S6, the parties entered into a contract wherein plaintiffs, as sellers, agreed to sell to the defendants, as buyers, certain real estate located in Butler County, Missouri. The terms of the contract, in substance, were that plaintiffs agreed to sell a farm to defendants for a consideration of $14,574. Defendants paid $3,000 and were given possession of the land. Defendants were to pay the balance in yearly installments of $1,000 plus interest on the amount then due. The first payment was to be made on January 1, 1958, and a payment of $1,000 plus interest on January 1 of each year thereafter until the entire balance was paid. When this occurred, a deed was to be made. In case of a default in the payments, possession was to be given plaintiffs and the amounts paid up to the time of default were to be considered as a rental for the farm.

On June 23, 1959, plaintiffs filed a petition in ejectment, alleging that defendants were then and had been since January 2, 1958, unlawfully withholding possession.

Plaintiffs’ evidence as to default was that defendants had not paid the installment of $1,000 due on January 1, 1958, nor the payment due on January 1, 1959. Plaintiff Charles Domyan admitted that he had been paid the interest due on January 1, 1958, and had given defendants a receipt therefor.

Defendant Thomas Dornin testified that in December, 1957, he informed Charles Domyan that he could not pay the $1,000 due on January 1, 1958, unless he borrowed the money but that he was able to pay the interest; that Charles Domyan told him not to borrow the money but to pay the interest and to pay the $1,000 later; that nothing further was said until December, 1958, when he, Thomas Dornin, offered to give Charles Domyan three checks, two for $1,000 each and one for the interest due, but that plaintiff refused to accept the offer. Thomas Dornin further testified that he then asked Charles Hardin and Steve Wilson to go with him to see Charles Domyan; that Hardin and Wilson went with him and in their presence, he again offered to pay Mr. Domyan $2,000 and interest then due. The evidence was that Mr. Domyan again refused the tender of payment. Hardin and Wilson corroborated the evidence as given by Dornin. Note what plaintiff Charles Domyan had to say on cross-examination:

“Q Mr. Domyan, isn’t it a fact when he came a year later he tendered $2000.00 and $462.96 interest? Is that right ?
“A I don’t remember.
“Q You say he didn’t tender it to you?
“A He come up with several propositions, I don’t remember whether that is one or not.
“Q You are not saying he didn’t tender it to you ?
“A No, sir, I am not saying he didn’t.”

Charles Domyan testified further that he did not talk to defendants from the time the interest was paid in December, 1957, to December, 1958, the time the alleged tender was made. It is our opinion that the trial court was justified in holding that the defendants had not breached their contract on the theory that plaintiffs accepted the interest due January 1, 1958, and agreed to give defendants further time to pay the installment of $1,000 then due. Plaintiffs’ conduct amounted to a waiver. 17 C.J.S. Contracts § 409, p. 897; Diehr v. Thompson Chemicals Corp., Mo.App., 281 S.W.2d 572, l.c. 578(5, 6).

The fact that defendants tendered checks and not cash was not objected to by plaintiffs and therefore tender in cash was waived. Diehr v. Thompson Chemicals Corp., supra, 281 S.W.2d l.c. 578(5, 6). We find nothing contrary to this rule in Atkinson v. Smothers, Mo.App., 291 S.W. 2d 645, cited by plaintiffs. The point that the trial court was in error in entering a judgment against plaintiffs for possession of the land is without merit.

Plaintiffs’ points one and two, that the trial court was not justified in decreeing specific performance, must be sustained. Specific performance should not be decreed on behalf of a purchaser of real estate unless such purchaser is able and willing to' perform his part of the contract. It was provided in the contract that plaintiffs were to execute a deed to defendants on the full payment of the purchase price. Defendant Thomas Dornin testified as follows on the question of whether he was prepared “to pay the balance due on the contract”:

“A Do you mean the total balance ?
“Q Yes, sir.
“A No, sir.”

It is evident that specific performance should not have been ordered.

The judgment of the trial court reads as follows:

“WHEREFORE, it is ordered, considered, adjudged and decreed by the Court that the defendants herein have judgment against the plaintiffs on plaintiffs petition.

“Costs incurred herein are taxed against the defendants.

It is further ordered by the Court that the plaintiffs execute deed to lands in suit and to deliver deed and abstracts of title to defendants.”

The portion of the judgment pertaining to possession should be sustained. The portion relating to specific performance should be set aside.

It is ordered that the judgment of the trial court be affirmed in part and reversed in part as above indicated, and the trial court is hereby directed to enter a new judgment in conformity with the views expressed hereinabove.

It is so ordered.


author: DALTON, Presiding Judge.

text:
    Zelma THAYER and Elza Thayer, Plaintiffs-Appellants, v. Ralph C. SOMMER, Defendant-Respondent.
    No. 48961.
    Supreme Court of Missouri, Division No. 1.
    April 9, 1962.

      Thomas R. Dowd, St. Louis, for appellants.
    Dearing, Richeson & Weier, by H. L. C. Weier, Hillsboro, for respondent.
   DALTON, Presiding Judge.

Action for $15,000 damages for personal injuries alleged to have been sustained by plaintiff Zelma Thayer when the automobile, which she was operating, stalled in the northbound lane of U. S. Highway No. 61, as she was crossing to enter the southbound lane, and it was struck by defendant’s northbound automobile. Zelma’s husband Elza, who owned the car, joined in the action, in a second count, seeking to recover $3,000 for damage to his automobile, medical expenses incurred by reason of his wife’s injuries and for loss of consortium.

The cause was submitted under the humanitarian doctrine on defendant’s negligent failure to slacken speed, stop or swerve and thereby avoid striking the stalled automobile after imminent peril arose. Verdict and judgment were for defendant. Plaintiffs have appealed and here complain of the giving of the defendant’s Instructions No. 2 and 4 and the exclusion of certain evidence.

' Plaintiffs’ evidence tended to show that the collision in question occurred in front of the Florian Zoellner residence, near where Zoellner’s driveway enters the east side 'of U. S. Highway 61 in Perry County, Missouri. The driveway enters about 1500 feet north of what is referred to as Sunset Inn, north of Perryville, Missouri. The highway is straight and level and paved with concrete twenty feet in width, with the shoulders eight to ten feet in width on either side. There is no obstruction to view for one-half mile to the north or for some 2400 feet to the south, to the top of a hill beyond Sunset Inn. About 450 to 500 feet south of the place of collision there is a slight rise with a dip beyond so that only the upper portion of an approaching automobile beyond the rise would be in full view.

Plaintiffs resided in Jennings, Missouri, and on July 29, 1955, plaintiff Zelma, accompanied by her first cousin, Mrs. Brink-meier, was proceeding from Jennings to Perryville to see Zelma’s mother, who was hospitalized there. Before they reached Perryville they stopped at the mentioned Zoellner home on the east side of Highway 61 for a brief conference with Mr. Zoellner before proceeding further. It was then 8:30 to 8:45 p. m. (C.S.T.). The weather was clear, the pavement dry and there was no fog or other impediment to visibility.

When plaintiff left Zoellner’s it was dusk or dark. Plaintiff had turned on the headlights of her car at Ste. Genevieve, before reaching the Zoellner home. The automobile she was driving was a 1948 manual-shift Chevrolet. As she left the Zoellner drive and reached the highway pavement, she stopped the car and looked both ways, but saw no automobile lights in either direction. She then shifted to low and entered on the pavement. She was in the act of turning south and across to the west side of the highway when her motor “died” and the car stopped. At that time the right front wheel was across the center line of the highway and the left rear portion of the automobile was still on the east shoulder. The car stood at a 45-degree angle, apparently facing southwest. It fully occupied the northbound traffic lane; however, there was nothing in front of it and nothing behind and no southbound traffic was approaching.

Zelma testified: “After I had pulled out there and my car died I saw these headlights from the south.” They were on the other side of Sunset Inn. “I tried to start my motor and it wouldn’t start and I kept watching the car, the lights, and I was out there in the highway trying to start the car and this car kept coming my way.” She tried to start it a second time and saw that the approaching car was getting closer, so she started to blow the horn. She was never able to get the car started although she made two or three efforts, with some interval or moments of time between each effort. To attract attention, she had started blowing the horn when the approaching automobile was “down by that white gate, which I imagine is about 500 feet or a little closer to the Zoellner driveway. * * ⅜ I was sitting there and trying to start the car and all the time watching these lights and they were getting closer each time I looked and I was helpless. I couldn’t get the car started.” Even then no cars were approaching from the north. The horn continued to blow from the time the approaching car reached the rise in the highway until the collision occurred and the headlights of the car remained on. Plaintiff Zelma was sure that her car was stalled on the highway for more than a minute, a minute or two, and the mentioned rise had not obstructed her view of the headlights of the approaching car.

Mrs. Brinkmeier heard the squealing of the brakes of the approaching car when it was some 75 feet away and it skidded down directly into the automobile in which the ladies were seated. The collision swung the front of the plaintiffs’ car around at a 45-degree angle, so that it faced northwest, with its headlights still burning after the collision. Defendant’s automobile stopped in its own traffic lane against the stalled automobile.

Mrs. Brinkmeier thought defendant’s car approached at 55 to 60 miles per hour, and so fast that defendant couldn’t stop. The front portion of the defendant’s car struck into the left front fender and door of the stalled automobile.

Patrolman John H. Little arrived about twenty minutes after the collision and observed 69 feet of skid marks on the pavement, extending that distance south from the damaged vehicles. These skid marks were parallel to the east side of the pavement and the nearest skid mark was about three and a half feet from the east edge of the pavement. The skid marks did not swerve either way, but extended in a straight line. He asked plaintiff Zelma what happened and her answer was: “All I can say is I pulled out there and I was making a left to go to Perryville. I’m not going to say how fast he was going, but he was going a pretty good clip. I blowed my horn when I saw him coming but he didn’t stop.” She further indicated that she was not hurt in the collision. He asked defendant Sommer what had happened and he answered: “I was just riding along and all of a sudden Babs said ‘look out’ and that’s the first time that I saw them. I couldn’t go either way and that’s just about it. They just pulled out in front of me and I couldn’t stop.” (“Babs” was Barbara Hereforth, now Mrs. Walter.)

On cross-examination plaintiff Zelma said she remembered making a statement that, “All I can say is I pulled out there and I was making a left to go to Perryville * * She didn’t tell the patrolman that her “motor had died,” because her brother-in-law had said to her: “Don’t say your car was stalled, not on the highway,” and she thought he was trying to help her and she felt he knew more about the law than she did. She further admitted having made and signed a written statement, as follows: “I drove to the highway and stopped. I was in low gear when I started up. I saw Ralph Sommers to my left but I thought sure I had plenty of time and I went on out onto the highway.” She also said: “I didn’t put in that (statement) my motor was stalled.” She didn’t read the statement before signing it, although above her signature the document read: “I have read the above and find it true to the best of my knowledge and belief.” The written document contained a further statement: “When I saw he was coming faster than I expected I moved my arm.” She further admitted that she had said, in answer to a question as to how long she sat on the highway with her engine “dead” before the collision occurred, “Well, I guess a couple of seconds.” She then testified that she was wrong when she made that answer because she “meant a couple of minutes. A minute or so.” In view of the issues presented on appeal we omit the testimony concerning the extent of plaintiff’s injuries.

Plaintiff Elza testified that he owned the Chevrolet in question which he had given his wife permission to drive. He said the car had a value of $450 before the collision and its value after the collision was $65. We need not review his further testimony. The wreck occurred on July 29, 1955. The wife’s suit was instituted on June 28, 1960, and her husband joined in her suit, as an additional plaintiff on October 13, 1960, when (in count two) he sought recovery for damage to the car and other damages, as mentioned. Defendant, by answer, pleaded as a defense to count two of the amended petition the statute of limitation, to wit: Sections 516.100 and 516.120 RSMo 1959, V.A.M.S., and, as respondent here, insists that plaintiff Elza made no case for the jury.

Defendant’s evidence tended to show that, on the date in question, he was unmarried and was driving north on U. S. Highway 61 from Perryville, with one Barbara Here-forth, to attend a drive-in theater located north of the Zoellner farm; that he was driving at 40 to 45 miles per hour; that he .saw two headlights coming toward him from the north; that he could not say whether there was one or two lights but that he did see headlights ahead; that he was driving in his right-hand, northbound lane when he first saw the Thayer car ahead across his traffic lane; that he could not then judge its distance from him; that he immediately applied his brakes and slowed his car, but, nevertheless, collided with the side of the Thayer automobile. He further testified that his automobile was in good working order, as far as he knew, with good brakes, tires and headlights; that there was no obstruction to vision through his windshield; that he had only seen lights, apparently approaching, before seeing the Thayer car; that he didn’t know how long it had been in his traffic lane; that the headlights of the car prevented him from pulling or swerving to the shoulder; that there were shoulders on the highway, but he didn’t know how wide; that the front end of his car was smashed; and that “he was just riding along and all of a sudden Babs said, ‘‘look out’ and that’s the first time I saw them.” He saw the car at the time she said “look out.”

Barbara, now Mrs. Walters, testified that: “Defendant wasn’t going too fast. It was around, oh, 45 to 50, somewhere around there. * * * I know when I seen it I hollered, I said, ‘look out, Ralph, there’s a car.’ And he heard — he seen it at the same time.” She couldn’t give the distance away but defendant slammed on his brakes. She didn’t hear the brakes since she was more interested in the car ahead. Her head hit the windshield and her left eye was cut and her hand and knees damaged. When she first saw the Thayer car “it looked like it was stalled across the highway.” She didn’t think there were any headlights on the car, although she admitted having said: “I do not know whether the lights on the other car were on or off. I did not see any lights before we hit.” The car was straight out from the Zoellner driveway “the way it looked to me.”

Respondent contends that, insofar as appellant Elza Thayer is concerned, the errors, if any, in the trial are immaterial because the cause of action pleaded by Elza was barred by limitations and Elza made no case for the jury. O’Dell v. Dean, 356 Mo. 861, 204 S.W.2d 248, 249(1, 2). The contention must be sustained. Sections 516.-100 and 516.120 RSMo 1959, V.A.M.S., Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; Coleman v. Ziegler, Mo.Sup., 248 S.W.2d 610, 615 ('6, 7).

Before setting out the questioned instructions perhaps we should say that, while the plaintiffs submitted their cause solely under the humanitarian doctrine apparently to avoid the defense of contributory negligence, the plaintiffs by Instruction No. 5 caused the jury to be instructed with reference to defendant’s duty in a primary negligence case, as follows: “The Court instructs the jury that under the law of this State it is the duty of the driver of every automobile upon the public streets and thoroughfares of this State to exercise the highest degree of care * * Of course this instruction was erroneous in a humanitarian negligence case, since no such duty existed prior to the time the defendant saw or by the highest degree of care could have seen the stalled automobile in a perilous position on the highway. Reiling v. Russell, 348 Mo. 279, 153 S.W.2d 6, 8(1-2); Downing v. Dixon, Mo.Sup., 313 S.W.2d 644, 648(1); Barnes v. Jones, Mo.Sup., 306 S.W.2d 512, 515(2); Cunningham v. Thompson, Mo.Sup., 277 S.W.2d 602, 610(13-18); Anderson v. Prugh, 364 Mo. 557, 264 S.W.2d 358, 364(7-9).

The questioned instructions, which appellants first say are unsupported by evidence, are as follows:

INSTRUCTION NO. 2.

“The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in evidence, the automobile driven by Zelma Thayer came into a position of imminent peril, if you so find, and if you further find that at that time the automobile driven by Ralph C. Sommer was so close to the Thayer automobile that Sommer was not able to avoid colliding with the Thayer automobile with the means and appliances at hand and with reasonable safety to himself and his automobile, then you are instructed that you must return your verdict in this case in favor of defendant Sommer and against the plaintiff, Zelma Thayer.”

INSTRUCTION NO. 4.

“The Court instructs thte jury that if you find and believe from the evidence that on the occasion mentioned therein, at a point on Highway 61, approximately 2.3 miles north of the junction of Highway 61 and 51 the plaintiff Zelma Thayer drove an automobile from a private driveway on the east side of Highway 61 onto the traveled portion of said highway at a time when the au,-iomobile operated by defendant Ralph C. Sommer was so close that it constituted an immediate hazard, and if you further find that in driving the automobile onto Highway 61 from said private driveway at said time constituted a failure to exercise the highest degree of care in the operation of said automobile on the part of the plaintiff Zelma Thayer, then Zelma Thayer was negligent, and if you further find that such negligence, if any, on her part, was the sole cause of the collision in question, and that it was not due to the negligence of defendant Ralph C. Sommer as set out in other instructions given you herein, then your verdict shall be in favor of the defendant Ralph C. Sommer.” (Italics ours.)

Appellants first insist that there was no substantial evidence “to support a finding by the jury that defendant’s automobile was so close to plaintiff’s car when said car came into a position of imminent peril that that defendant was not able to avoid colliding (Instruction No. 2), or that the plaintiff’s car entered the traveled portion of the highway when defendant’s automobile was so close that it constituted an immediate hazard (Instruction No. 4).” Appellants further say that defendant offered no evidence “as to exactly when plaintiff’s car did enter the highway, or of the distance or time separating the two vehicles at that time.”

Apparently, it is appellants’ theory that it was necessary for defendant’s evidence to present “a specific new factual situation” in order to be entitled to submit a converse instruction; however, defendant was entitled to submit an instruction based upon a view of plaintiffs’ evidence favorable to defendant if not in conflict with defendant’s own testimony or his own theory of the case.

In determining whether a defendant’s instruction is supported by substantial evidence, the court must consider the evidence in a light most favorable to defendant and disregard all unfavorable evidence. Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7, 8(1-3) ; Bunch v. Mueller, 365 Mo. 494, 284 S.W.2d 440, 445; Dawley v. Hoy, Mo.Sup., 341 S.W.2d 111, 116(5).

On the issue now presented we do not consider the correctness of the instructions, but only the sufficiency of the evidence to support any affirmative finding submitted. The jury was the sole judge of the credibility of the witnesses and the weight and value of their testimony and could believe or disbelieve any portion of such testimony. Considered favorable to defendant, the jury could believe and find from plaintiffs’ own evidence that on the occasion in question plaintiff Zelma pulled out on the highway and was making a left turn to go to Perryville; that she thought she had plenty of time to cross in front of defendant’s approaching car, but was mistaken; that the automobile was approaching faster than she expected; that perhaps her car did not stall on the pavement, since she didn’t mention any such fact to the patrolman; or that if her car did stall on the highway it was stopped only two seconds before the collision; and that when plaintiffs’ automobile was first observed, or observable in imminent peril in defendant’s traffic lane, defendant applied the brakes and tried to stop but was unable to do so. Plaintiffs also offered defendant’s own statement to the patrolman that “they just pulled out in front of me and I couldn’t stop.”

In this connection it will be noted that plaintiffs offered no evidence tending to show when plaintiffs’ automobile should have been observable to an approaching motorist, or that, after the Thayer car was first observable as being in imminent peril in the northbound traffic lane, any slackening of speed alone by defendant would have avoided the collision, nor was there substantial evidence that defendant’s automobile could have been swerved or stopped with reasonable safety after plaintiffs’ car was first visible and observable by the highest degree of care in a stalled position, if any, in the northbound lane by an approaching motorist, nor that plaintiff Zelma’s imminent peril could have been or should have been apparent to one in defendant’s position in the exercise of the highest degree of care any earlier than it was seen by defendant. When considered favorably to defendant, there was no inadequacy of evidence to support the giving of the mentioned instructions.

Appellants make no specific objection to Instruction 2, which apparently follows the form of Instruction 4 in Rosenfeld v. Peters, Mo.Sup., 327 S.W.2d 264, 267, 268(3), where certain defects in the instruction were held to be favorable to plaintiff-appellant. Appellants do say that Instructions 2 and 4 submit the same theory and appellants then insist that there was no need for two instructions; that two instructions on the same issue were prejudicial to plaintiffs and gave defendant an unfair advantage. It is well settled that mere repetition in instructions is ordinarily within the discretion of the trial court and, except in unusual cases or where so considered by the trial court, such repetitions do not constitute prejudicial error. Wells v. City of Jefferson, 345 Mo. 239, 132 S.W.2d 1006, 1009; Reidinger v. Adams, Mo.Sup., 266 S.W.2d 610, 613(4); Greenwood v. Wiseman, Mo.Sup., 305 S.W.2d 474, 477(2). We need not rule the particular matter in this case since, as later appears, we find Instruction 4 to be prejudicially erroneous.

With reference to Instruction 4, set out supra, appellants insist that it purports to be a sole cause instruction but fails to hypothesize facts to exclude the negligence of defendant as a positive concurring cause of the collision; that it both directly and by reasonable inference (by the italicized portion) injects an issue of contributory negligence for the consideration of the jury; and that the instruction would lead a jury to believe that such negligence would bar-recovery by plaintiffs.

Respondent insists that the phrasing of Instruction 4 has the sense and meaning of imminence so as to exclude humanitarian negligence; that other provisions of the instruction require the acts of Zelma to be the “sole cause” of the collision and require a finding that it was “not due” to the negligence of defendant Sommer. Respondent says that it restricted the jury to the converse of a humanitarian situation, as hypothesized in plaintiffs’ Instruction 1, and therefore it could not have misled or confused the jury. Respondent further insists, that the words “so close that it constituted an immediate hazard” hypothesized a factual situation similar to that shown by the-words “closely” and “suddenly” as used in approved converse instructions, citing Jans-sens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, 747. Respondent also cites Rosenfeld v. Peters, supra, 327 S.W.2d 264, 267; Montgomery v. Sobel, Mo.Sup., 334 S.W.2d 112, 114 and Siegel v. Peters, Mo.Sup., 347 S.W.2d 881, 882.

In the Rosenfeld case this court, in holding a particular instruction erroneous, said: “If defendant had left out the clauses concerning right of way * * * and had drawn this instruction to submit that as defendant approached close to the crossover, Siegel suddenly drove his car from a stopped position on the crossover onto the highway closely in front of defendant’s car; and then required a finding that this was negligence of Siegel which was the sole cause of the collision and that defendant was not guilty of any negligence submitted in any other instructions, it would have been a good sole cause instruction.” However, in that case Siegel was not the plaintiff, nor was he a party to the action. He was the operator of the automobile in which plaintiff was riding. Siegel was, therefore, a third party and the court subsequently said: “In the Happy case [Happy v. Blanton, Mo.], 303 S.W.2d 633, 637, we held the sole cause instruction therein failed to hypothesize fact showing a sole cause situation saying: '[A]n instruction submitting the issue of nonliability on the part of a defendant because the negligence of a third party was the sole proximate cause of plaintiff’s injuries must do more than direct a verdict for that defendant only upon a finding that the third party was in some manner negligent.’” (327 S.W.2d 264, 267.) (Italics ours.)

The above statement in the Rosen-feld case now relied upon by respondent does not apply to a plaintiff in a humanitarian negligence case, because plaintiff’s negligence, antecedent or contributory, constitutes no defense. Any acts of plaintiffs submitted to show a sole cause situation should not be characterized as negligent acts, nor should a submission be made to a jury whereby the said acts may be found to be negligent acts. To do so is likely to mislead the jury into believing or allowing contributory negligence as a defense. In such case, the issue is not whether plaintiff’s acts are negligent acts or whether they constitute negligence, but whether, if found, as submitted, they constitute the sole cause of the collision in which defendant’s negligence was not a concurring cause.

The case of Montgomery v. Sobel, supra, 334 S.W.2d 112, 114, does not support respondent’s position because in that case, where a defendant’s verdict-directing instruction (No. 4) was approved in a humanitarian case, the instruction submitted specific acts and conduct of plaintiff as a defense and a finding, thereafter, that defendant could not have avoided the collision. The instruction did not characterize plaintiff’s said acts as having been negligently done, nor did it submit a finding that the performance of the acts constituted negligence on plaintiff’s part. The instruction did not interpose antecedent or contributory negligence of plaintiff as a defense. Nor does Siegel v. Peters, supra, 347 S.W.2d 881, 882 support respondent’s position. The instruction there considered is not subject to the defects of Instruction No. 4 and it falls within the rule applied in the Montgomery v. Sobel case.

We find the italicized portion of Instruction No. 4 clearly erroneous. The fact that “the plaintiff Zelma Thayer drove an automobile from a private driveway on the east side of Highway 61 onto the traveled portion of said highway at a time when the automobile operated by defendant Ralph C. Sommer was so close that it constituted an immediate hazard,” constituted no defense in this humanitarian case, since a finding of the submitted facts only tended to show that a position of immediate peril came into existence, imposing a duty upon the defendant to act. The issue for decision necessarily was whether or not defendant performed that humanitarian duty as submitted by plaintiffs’ Instruction No. 1. The instruction required no finding that the automobile’s entrance upon the highway was so suddenly and closely in front of defendant’s automobile that said automobile could not, in the exercise of the highest degree of care, be slackened, stopped or swerved to avoid the collision. Instead, the instruction proceeds to submit plaintiff Zelma’s contributory negligence, as if it were a defense to plaintiffs’ right of recovery, and not only characterizes the submitted acts of plaintiff Zelma as negligent, but further submits a finding by the jury that the submitted acts of plaintiff Zelma constituted negligent conduct.

It is apparent that the instruction does not hypothesize a finding of facts which would exclude defendant’s negligence as a possible concurring cause of the collision. Nor does it present a complete state of facts and circumstances which would exonerate defendant of negligence and demonstrate that plaintiff Zelma alone was at fault and the responsible cause of the collision. The form of the instruction tended to divert attention from the humanitarian issue as to whether defendant should have seen plaintiff Zelma in a position of imminent peril in time to have avoided the collision by slackening speed, stopping or swerving, and it could be understood as authorizing the jury to find her antecedent negligence a bar to plaintiffs’ recovery. Johnson v. Cox, Mo.Sup., 262 S.W .2d 13, 15; Carney v. Stuart, Mo.Sup., 331 S.W.2d 558, 562(4— 6); Hickerson v. Portner, Mo.Sup., 325 S.W.2d 783, 787(4).

Further, the instruction was so drafted that it tended to make the contributory negligence of plaintiff Zelma the dominant issue in the case and its effect was to distract the attention of the jury from the true issue of defendant’s negligence and to direct it to the false issue of plaintiff Zelma’s contributory negligence. Sheerin v. St. Louis Public Service Co., Mo.Sup., 300 S.W.2d 483, 487; Klecka v. Gropp, Mo.Sup., 278 S.W.2d 790, 795; Catanzaro v. McKay, Mo.Sup., 277 S.W.2d 566, 570(3); Hangge v. Umbright, Mo.Sup., 119 S.W.2d 382, 384(5, 6).

Appellants further contend that the court erred in excluding “the testimony of Florian Zoellner that on the night of the collision, immediately subsequent thereto, Zoellner had personally advised appellant-driver, Zelma Thayer, not to tell anyone that her car had been stalled on the highway for a minute or two prior to the collision.” It is contended that this testimony was admissible and bore directly on the plaintiff-driver’s action and state of mind in not voluntarily informing the State Highway Trooper that her automobile had been so stalled, even though the question was not specifically asked of her.

The mentioned issue is not before this court because the transcript wholly fails to show what testimony, if any, the witness would have given had he been permitted to answer the questions asked, nor does the assignment of error give the page in the record where the excluded evidence appears. Peters v. Dodd, Mo.Sup., 328 S.W. 2d 603, 609(6); Supreme Court Rule 83.05, V.A.M.R. This for the reason that plaintiffs made no offer to show what the witness would have testified to. An examination of the record merely shows that, on objection, the witness was not permitted to tell what private discussion he had with Zelma at the scene of the collision. An objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing of what the testimony would have been and that it was relevant and material. Kraxberger v. Roiter, 91 Mo. 404, 3 S.W. 872; Bringhurst v. Bringhurst, Mo.App., 222 S.W. 874, 876. The mere refusal to allow a witness to testify is not reversible error in the absence of a showing of what the answer would have been. Lake Superior Loader Co. v. Huttig Lead & Zinc Co., 305 Mo. 130, 264 S.W. 396, 400(6). It is also the rule that reversible error cannot be predicated on the exclusion of a proper question where there is no offer of proof that the answer would have been in favor of the complaining party. Powell v. Union Pac. R. Co., 255 Mo. 420, 164 S.W. 628, 635(4).

While appellants argue as if they offered to show certain testimony by witness Zoell-ner, they finally concede in argument that they had expected to prove by Zoellner’s testimony what “was finally brought into the record on cross-examination of the plaintiff-driver herself/’ to wit: that Zoell-ner advised her not to tell anyone her car had stalled on the highway. The record does not show that Zoellner would have so testified, as plaintiffs made no offer of proof. The issue is therefore not before us.

For the reasons hereinbefore stated, the judgment is affirmed as to appellant Elza Thayer and reversed as to Zelma Thayer, and the cause remanded.

All concur.