McCarthy v. Sheridan

• Decision Date: 05 June 1935
• Citation: 83 S.W.2d 907,336 Mo. 1201
• Parties: Anna McCarthy v. John Sheridan, Appellant
• Court: Missouri Supreme Court

83 S.W.2d 907

336 Mo. 1201

Anna McCarthy v. John Sheridan, Appellant

Supreme Court of Missouri

June 5, 1935

Motion for Rehearing Overruled June 5, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Chas W Rutledge, Judge; Opinion filed at September Term, 1934 April 16, 1935; motion for rehearing filed; motion overruled at May Term, June 5, 1935.

Affirmed.

Green Henry & Remmers for appellant.

(1) Where plaintiff fails to show by credible evidence that the driver of an automobile had sufficient time to stop his automobile after plaintiff came into a position of peril, no case is made under the lastchance doctrine, and defendant is entitled to a peremptory instruction in his favor. Phillip v. Henson, 30 S.W.2d 1067; Murray v. St. Louis Wire Co., 238 S.W. 838; Rollison v. Railroad Co., 252 Mo. 541; Spoeneman v. Uhri, 60 S.W.2d 9; Kalinowski v. Vierman, 211 S.W. 723; Goodson v. Schwandt, 300 S.W. 795. (2) Under the last-chance doctrine the driver of an automobile is not negligent in failing to swerve if by doing so he might inflict injuries on others, or if there was no room in which to swerve, and an instruction charging defendant with negligence if he failed to swerve, omitting this element, is erroneous. Spoeneman v. Uhri, supra; Banks v. Morris, 302 Mo. 267; Ritz v. Cousins Lbr. Co., 59 S.W.2d 1078. (3) Defendant is entitled to have his theory of the case presented to the jury by his own instruction, and where defendant's evidence showed that his car was standing still, waiting for pedestrian traffic to pass, when plaintiff ran into the side of his car, he could not be chargeable with negligence and was entitled to have this theory of the case presented to the jury. Zimmer v. Daugherty, 32 S.W.2d 765; Northam v. United Rys. Co., 176 S.W. 229; DeWitt v. Ry. Co., 50 Mo. 302; Salzman v. Athletic Tea Co., 236 S.W. 907; Leonard v. United Rys. Co., 239 S.W. 894; Blech v. Berzon, 61 S.W.2d 201.

Frank L. Ramacciotti and Eagleton, Henwood & Waechter for respondent.

(1) The plaintiff, while attempting to cross from the south to the north in front of the defendant's westbound automobile, was in a position of peril when she reached a point of five feet from the path of defendant's automobile, and prior thereto, after alighting from the street car, at which time the automobile was at least twenty-five feet away, and the defendant thereafter not only failed to stop, although he could readily have done so, but he failed to slacken the speed of his automobile, and then increased the peril by swerving his automobile into the path of the plaintiff. The evidence therefore clearly established a case under the humanitarian doctrine. Banks v. Morris & Co., 302 Mo. 270; Ellis v. Met. St. Ry. Co., 234 Mo. 685; Beier v. Transit Co., 197 Mo. 231; Hucksold v. United Rys. Co., 234 S.W. 1072. (2) Defendant had at least twelve feet to his left and room for two cars abreast to pass to his right. Plaintiff's instruction required the jury to find that defendant could have swerved under the circumstances aforementioned "with reasonable safety to the defendant and his automobile." The instruction was proper and correctly stated defendant's duty. Banks v. Morris & Co., 302 Mo. 254; Spoeneman v. Uhri, 60 S.W.2d 9.

OPINION

Frank, C. J.

Action to recover damages for alleged personal injuries. Plaintiff recovered judgment for $ 8500 and defendant appealed. The cause was argued and submitted in Division One where an opinion by Commissioner Sturgis reversing and remanding the cause was adopted as the opinion of the court. Because of a dissent of one of the judges in division, the cause was transferred to court en banc where it was again argued and submitted.

Appellant contends (1) that the evidence was not sufficient to warrant the submission of the case to the jury under the humanitarian rule, and (2) that the instruction submitting the case under that rule was erroneous. The opinion in division rules both contentions against appellant. We agree with and adopt that part of the opinion so holding. It reads as follows:

"Plaintiff received personal injuries by reason of a collision with defendant's automobile on September 7, 1929, while she was endeavoring to reach the sidewalk after alighting from a street car going west on Olive Street in St. Louis. The street car on which she was riding, going west on Olive Street, stopped for passengers to get off or on when it came to the intersection with Jefferson Avenue, a north and south street, and plaintiff alighted from the exit at the center of the car and was crossing the line of vehicle travel between the street car track and the north curb of Olive Street when the collision occurred. The plaintiff alleges several specifications of negligence on defendant's part causing her injury, such as driving his automobile at an excessive and dangerous rate of speed, failing to give any signal or warning of his approach or the movement of his automobile, failure to stop or slacken the speed of his car after discovering plaintiff in the line of his travel, and negligence under the humanitarian rule in that defendant driving his automobile westward on Olive Street saw, or by the exercise of due care could have seen, the plaintiff upon such highway in or approaching the line of his travel and in a position of imminent peril of being struck by such automobile in time for the defendant thereafter to have stopped the automobile, slackened the speed, or swerved the same to one side or warned plaintiff of his approach, and thus and thereby could have avoided said collision and injury to plaintiff, but that defendant negligently failed to do so."

The case was tried to a jury and after all the evidence was in plaintiff chose to submit her case solely on defendant's violation of the humanitarian rule of negligence as above stated, thus eliminating the question of plaintiff's contributory negligence. The court overruled defendant's demurrer to the evidence and submitted the case for plaintiff on an instruction covering the humanitarian rule and one on the measure of damages. The jury found for plaintiff in the sum of $ 8500, the court overruled defendant's motion for new trial and entered judgment for plaintiff, and defendant has appealed.

The defendant's first insistence is that plaintiff's evidence does not make a case for the jury under the humanitarian rule in that the evidence fails to show that the defendant saw or should have seen the plaintiff in imminent peril of being struck by his automobile while he yet had time with the means at hand to have stopped the car or so slackened the speed thereof or swerved it to one side and thereby have avoided striking and injuring plaintiff. Plaintiff's given instruction required the jury to so find and if the evidence warranted such finding, then the court properly overruled the demurrer and submitted the case on such instruction. This contention requires an examination of the evidence most favorable to the plaintiff. Olive Street, on which the street car on which plaintiff was a passenger was going west, is a rather wide street leaving a space of some thirty feet between the street car track and the north curb, ample space for westbound automobiles to pass between the safety zone where street car passengers were accustomed to alight from or enter such cars and the north curb. According to plaintiff's evidence, when the street car stopped at the intersection of Jefferson Street, plaintiff and other passengers alighted from the street car at the exit door in the center of the street car and plaintiff walked northwesterly, carrying a large bundle of merchandise under her arm, a distance of about fifteen feet, when she was about five feet from the usual line of westbound automobiles. Here she paused to allow automobiles to pass to her north, one of which stopped with the hind wheels right in front of her. She says she then looked east and saw defendant's car coming west in the line of traffic some twenty-five feet distant from her. Defendant's car was not then traveling very fast, about ten miles per hour, and when it was about ten feet from her it suddenly swerved to the left or south out of the regular line of traffic, apparently with intent to pass the stopped car on the south, and then increased its speed. This movement placed defendant's car in line with plaintiff's position in the street and, as plaintiff says, "ran right into her." Plaintiff attempted to step back out of the way of defendant's automobile but it struck her, knocking her to the pavement.

Another witness for plaintiff testified that he was standing on the northeast corner of Jefferson and Olive at the time of this accident. He saw the lady (plaintiff) before she was struck and saw the automobile also. She was standing about five feet from the rail that the street car runs on and about five feet from the westbound automobiles. There was a line of cars. One car had stopped and there was room for this lady to get through there but she was five feet away from the distance to get through. This fellow (defendant) was behind the rest of them and he came out and struck her and knocked her down about two or three feet. He came up from the back of the cars and swerved to the left and the front fender of the car knocked her west. He did not hear any horn sounded. And on cross-examination he said: The lady (plaintiff) was not standing either east or west of the car that was stopped. She was south of it. She was standing about at the front part of where the street car stopped and that is where the automobile was that was standing, which would mean that the front of the automobile was even with the east building line of Jefferson and plaintiff was just south of this automobile. Defendant's car swerved out and...