ON MOTION FOR A REHEARING. Defendant, on motion for a rehearing, urges that the instruction which we have held reversibly erroneous was harmless because under the evidence the verdict was clearly for the right party. In this connection defendant suggests that though plaintiff testified she and her friend, Miss Walsh, drank only one bottle of beer at the restaurant and plaintiff's physician testified that he discerned no odor of liquor on her breath, a witness for defendant testified that they drank two bottles of beer. The implication in this suggestion is that Miss Walsh and plaintiff were intoxicated at the time of the accident, and that plaintiff in an intoxicated condition went to sleep with her head in the lap of an intoxicated driver, and in so doing was guilty of contributory negligence. Just such contributory negligence is pleaded by defendant in its answer. It is not the province of this court to weigh the evidence, but defendant's suggestion brings to mind a matter which, strange to say, we have hitherto overlooked, that is, that the nature and character of plaintiff's injuries was competent for consideration by the jury upon the question of plaintiff's negligence as well as upon the question of defendant's negligence, but the instruction only permits the jury to consider the nature and character of plaintiff's injuries as an aid in determining the question of defendant's negligence. *Page 453
Defendant also urges that a number of its witnesses testified that the glass and debris resulting from the wreck were on the south side of the pavement, and that plaintiff is wholly uncorroborated in her testimony that the Chevrolet in which she was riding was kept on the north side of the pavement. In this connection, it should be observed that the plaintiff was at a great disadvantage in making proof as to how the accident happened. After the accident her friend, the driver of the Chevrolet, was dead, and plaintiff was unconscious. The one was taken to the undertaker and the other to the hospital. The driver of the truck and trailer and his friend were at the scene of the accident for a long time after the accident occurred. Furthermore, it may readily be inferred that if the collision did occur on the south side of the pavement, this resulted from the confusion engendered in the mind of the driver of the Chevrolet from the sudden appearance of the truck and trailer coming over a hill and around a curve on the wrong side of the road.
Defendant further urges that we are inconsistent in holding that the remarks of counsel have not been preserved for review here, and in also holding that such remarks may be considered in passing upon the prejudicial effect or not of the instructions. Defendant misapprehends our holding. We have not held that the remarks have not been preserved in the record. We have held that the rulings of the court respecting the remarks have not been preserved for review. The fact that the rulings have not been preserved for review does not eliminate the remarks from the record or alter the fact that the remarks got to the jury. We are not reversing the judgment on the ground of any erroneous rulings of the court respecting the remarks. We merely hold that such remarks may be considered in determing the prejudicial effect or not of the instructions.
Defendant further suggests, for what purpose we do not understand, that the remark of counsel for defendant during the argument to the jury that plaintiff would inherit Miss Walsh's property was provoked by the argument of plaintiff's counsel. We do not think this is so, but the record discloses that counsel for defendant during the direct examination of the plaintiff as a witness injected the same remark without the semblance of a provocation therefor.
Defendant urges that an instruction just like the instruction under review here was held not reversibly erroneous in Koebel v. Tieman Coal Material Co. (Mo.), 85 S.W.2d 519. The facts in that case were very different from the facts in the present case. The crucial issue in that case related to whether or not the bicycle on which plaintiff was riding was struck by defendant's truck, and it did not appear that the evidence concerning the nature and character of plaintiff's injuries in any way tended to throw any light upon that issue. Moreover, there was no issue respecting contributory negligence. *Page 454
The instruction under review in Waeckerley v. Colonial Baking Co. (Mo. App.), 67 S.W.2d 779, relied on by defendant, is not like the instruction under review here in any respect.
The Commissioner recommends that defendant's motion for a rehearing be overruled.