Albright v. Joplin Oil Co.

• Decision Date: 25 March 1921
• Docket Number: No. 2802.,2802.
• Parties: ALBRIGHT v. JOPLIN OIL CO.
• Court: Missouri Court of Appeals

229 S.W. 829

206 Mo. App. 412

ALBRIGHT v. JOPLIN OIL CO.

No. 2802.

Springfield Court of Appeals. Missouri.

March 25, 1921.

Rehearing Denied April 23, 1921.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by Lottie Albright against Joplin Oil Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

R. A. Pearson and Mercer Arnold, both of Joplin, for appellant.

Walden & Andrews and Hugh Dabbs, all of Joplin, for respondent.

FARRINGTON, J.

Plaintiff, the widow of Albert I. Albright, brought this suit to recover damages under section 5427, R. S. of of 1909, now section 4219, R. S. of 1919, and recovered a judgment for $3,000 in the trial court. It is from this judgment that defendant brings its appeal to this court, charging, first, that the petition does not contain a charge sufficient to permit a recovery under the humanitarian rule; second, that the evidence does not justify a verdict and judgment based on the humanitarian rule; third that the instructions asked by the plaintiff and given by the court were faulty, in that they failed to contain the necessary elements required on which to base a finding for plaintiff under the humanitarian rule. There is also some question raised about an amendment made to the petition upon which the case was tried.

We will dispose of this last objection first by stating that the record clearly shows that this suit was brought within time as provided by the statute, and that the amendment allowed by the trial court was proper.

Before proceeding to dispose of the assignments concerning the humanitarian doctrine, we will state the facts. Plaintiff's husband was a man 42 years of age, in good health, and possessed of all of his faculties, the father of three children, and was employed in the postal service at Joplin, Mo. On the afternoon of August 27, 1917, he rode a bicycle north on Wall street, on the left-hand side, or west side, of same, being on the wrong side of the street. He proceeded north until he came within three, four, or `five feet of the center of Seventh street, which runs east and west and intersects Wall street. Having reached this point at the intersection of the streets, which made him on the left side of the intersection of Wall street and a few feet from the center of Seventh street, he suddenly changed his course, which was to the north, and started his bicycle to the west and southwest. He was operating his bicycle slowly. At the time he made this sudden turn to the west in the intersection of these two streets, he went to the south side of Seventh, or lefthand and the wrong side of the street. An automobile truck belonging to defendant, being driven by one of its drivers, was coming east on Seventh street, and was at a point about 135 feet west of the intersection. The driver of the truck saw plaintiff's husband make this turn and start west on Seventh street, on the wrong side of the street. They both proceeded on their way, approaching each other. There is nothing in the evidence which would in any way indicate that the deceased was oblivious to any danger, or that he did not see the automobile truck coming toward him from the west, nor was there any obstruction between them. Taking the evidence as most favorable to plaintiff, the facts disclose that at some point before he was struck by the truck he got off of his bicycle, one hand on the handlebars and the other on the saddle. The truck came on him, and apparently the front end of it passed the deceased, but he was struck in the head by some projection of the truck and knocked down on his wheel, he falling in the street near the curb, and was immediately rendered unconscious, and died within a few hours, in a hospital.

It appears from the record that a suit was brought by this plaintiff, and that after the evidence was in a voluntary nonsuit was entered. From the record before us it is apparent that in that case plaintiff's witnesses placed the distance between the oncoming truck and the deceased when he got off of his bicycle at something like six or eight feet. The speed of the automobile truck, as given by the witnesses, was something like 10 or 12 miles an hour, and it is perfectly apparent that, if he did enter the danger zone at a distance where there would be only six to eight feet between the oncoming truck and himself, there would be no case made, which probably accounts for the nonsuit entered in the original suit.

On this trial, however, two witnesses place the distance between where he first stepped off of his bicycle and the oncoming truck at 20 to 25 feet, and they further place him in line of the oncoming truck; and it appears from the evidence that a Ford truck, which defendant was using, running 10 or 12 miles an hour, can be stopped within 10 or 12 feet, which would have given the driver a sufficient length of time to stop the automobile before striking the plaintiff's husband after he saw him in front of him off of his bicycle, with 25 feet distance between them. At least, it would be a question for the jury to say whether the driver of the automobile acted as a reasonably prudent person would act in not discovering that the deceased could not extricate himself from this perilous position before the front end or some part of the truck would strike him.

Defendant's evidence tends to show that when the truck driver first noticed plaintiff's husband make this sudden turn to the west and southwest toward the south curb of Seventh street, he was 135 feet from him' and somewhere near the center of the street, and that when he saw him coming on his bicycle toward him, on the wrong side of the street, he veered his automobile to the south or south curb, which would, of course, be the natural and lawful thing for him to do, and which he had a right to do, and he would have a right to continue along that space of the street until he reached a point where it would become apparent to an ordinarily careful person either that the deceased had negligently gotten himself into a perilous position, and was oblivious to the danger arising therefrom, or that he, having negligently gotten himself into that position, was unable, although conscious of the danger, to extricate himself; that is, that he would not have time to move with his bicycle from the dangerous position to one of safety before he would be struck, or probably be struck, by the oncoming truck. We are of the opinion that the driver of the truck had a perfect right to continue down the street, the deceased showing no evidence of being oblivious to the danger of remaining on the wrong side, and that he had every reason to believe that, as they were both approaching each other, they could see each other, and that he would further have a right to rely on the fact that the deceased, being on the wrong side of the street, and seeing the truck approach, would use reasonable exertions to turn out of the way, and exercise that degree of care for himself which any ordinarily prudent person is expected to use. The fact, therefore, of itself that the deceased was in the street, on the wrong side thereof, when there was no appearance of his being oblivious to the oncoming truck, would not place a duty on the driver of the truck to slacken his speed or change his course, so long as he was on the right side of the street, where he belonged, and within...