14.01 [1978 Revision] Definitions-Yield the Right-of-Way-General Comment

Instruction No 1 14.01 [1978 Revision] Definitions--Yield the Right­of­Way--General Comment In its report to the Supreme Court, the Committee recommended that instructions submit only "ultimate issues" without evidentiary detail. Failure to yield the right-of-way is such an issue, but submitting this issue without explanation might be inadequate. When such issues as following too closely or failing to signal are submitted, the jurors know what is meant and a further explanation would be superfluous. But jurors are not apt to understand which party has the duty to yield in every situation. In addition to the common law duty to yield the right-of-way, the statutes dictate which party must yield in a variety of situations. For this reason a number of definitions have been prepared which explain to the jury the circumstances under which the duty to yield exists. These definitions are to be used when and only when there is evidence to show that the defined duty to yield existed and the failure to yield caused damage. Failure to yield the statutory right-of-way may be negligence per se if there is no evidence of valid excuse for the violations. Lay v. McGrane, 331 S.W.2d 592 (Mo.1960); MacArthur v. Gendron, 312 S.W.2d 146 (Mo.App.1958). These instructions define the phrase "failure to yield the right-of-way." As such, the instruction which submits "failure to yield the right-of-way" (verdict director or contributory negligence instruction) and the definition instruction, which supplements that instruction, speak of the same party, i.e., the party who is in the less favored position at the intersection. Any negligence of the party asserting the right-of-way should be submitted in the instruction directed to the conduct of that party. This would usually be submitted as failure to keep a careful lookout (MAI 17.05), failure to act after danger of collision apparent (MAI 17.04) or the like. The failure of the favored party to exercise the highest degree of care in asserting the right-of-way does not relieve the less favored party from his duty to yield the right-of-way. In Haymes v. Swan, 413 S.W.2d 319, 325 (Mo.App.1967) the court said: Whether or not plaintiff [the favored party] was contributorily negligent in entering the intersection at a time when it appeared or should have appeared to a reasonably prudent person that to do so would probably result in an accident would not obviate the primary duty of defendant to permit plaintiff, first into the intersection, to pass in safety.