Albright v. Joplin Oil Co.
| Decision Date | 25 March 1921 |
| Citation | 229 S.W. 829,206 Mo.App. 412 |
| Parties | LOTTIE ALBRIGHT, Respondent, v. JOPLIN OIL COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Court.--Hon. Grant Emerson, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
R. A Pearson and Mercer D. Smold for appellant.
(1) Under the plaintiff's petition there can be no recovery. (a) Because it shows decedent on the wrong side of the street, turning directly to the left, in the course of an approaching automobile, with knowledge or the full means thereof, and with no excusing circumstances. (b) Because it fails to state a cause of action under the humanitarian doctrine; it does not allege obliviousness on the part of the decedent, nor in its absence, any inability or limitation of his ability to avoid the injury. 29 Cyc. 694; Rubeck v Sandler, 219 S.W. 406; Starke v. Bingham, 223 S.W. 946; Knapp v. Dunham, 195 S.W. 1062; Markowitz v. Railroad, 186 Mo. 350. (2) The peremptory instruction asked by defendant should have been given. (a) Because under the testimony plaintiff's intestate was himself contributorily negligent in turning into the left side of the street and knowingly in the course of an approaching automobile. (b) Because no obliviousness of of decedent's peril or defendant's knowledge thereof is shown, nor that decendent was less able to avoid injury than defendant's driver, at any sufficient time prior to the contract that he could have avoided it, so that decedent's contributory negligence was continuing and any omission of the driver's not the proximate cause of the injury. Columbia Taxicab Co. v. Roemmich, 208 S.W 861; Topping v. Bourne, 191 S.W. 1032; Bourrett v. Railway, 121 N.W. 380; Matteson v. Railway, 92 p. 101; Kenelen v. Railroad, 216 Mo. 164; Moore v. Railway, 176 Mo. 545; Hopkins v. Auto School, 196 S.W. 775; Haffey v. Railroad, 154 Mo.App. 493; Hilmowicz v. Parker Webb Co., 131 N.W. 526; Lizzi v. Haff, 96 N.Y.S. 456; Simms v. Railroad, 116 Mo.App. 573; Robbishand v. Spence, 112 Me. 13, 90 Mo.App. 430; Holwerson v. Railroad, 157 Mo. 216. (3) Plaintiff's instructions 1 and 2 omit indispensable elements of liability. A situation of danger must predicate obliviousness or helplessness of plaintiff, as well as time to defendant to act. Plaintiff's instruction under the last chance rule must contain all the elements of a liability. Knapp v. Dunham, 195 S.W. 1062; Stark v. Bingham, 223 S.W. 496; Holwerson v. Railway, 157 Mo. 245. (4) Defendant must have had sufficient time after realizing plaintiff will not exercise ordinary care for his own safety, in which to act to avoid injuring him. Pope v. Railroad, 242 Mo. 232; Hebler v. State Railway, 132 Mo.App. 551.
Walden & Andrews and Hugh Dabbs for respondent.
(1) Plaintiff's petition states a good cause of action under the humanitarian doctrine. Mere negligence on the part of deceased in going into danger will not defeat recovery under the humanitarian rule, if after his perilous situation is apparent there is yet time for the truck driver to avoid injuring him by the exercise of ordinary care. Ingino v. Met. St. Ry. Co., 179 S.W. 773; Newton v. Harvey, 202 S.W. 249; Bybee v. Dunham, 198 S.W. 190, 193; St. L. etc. Rd. Co. v. Cambron, 131 S.W. 1130; Woods v. Railroad, 188 Mo. 229; Strother v. Dunham, 193 S.W. 882, 885; Muller v. Harvey, 204 S.W. 927; Bailey v. Railroad, 224 S.W. 837. Plaintiff's right of recovery is not dependent on deceased's obliviousness of peril. This is not a necessary element where the facts do not make it so. Newton v. Harvey, 202 S.W. 251; Woods v. Wabash, 188 Mo. 229; Ross v. Railroad, 132 Mo.App. 472; Bybee v. Dunham, 198 S.W. 193; Strother v. Dunham, 193 S.W. 885; Martin v. Kansas City Ry. Co., 204 S.W. 589; Flynn v. Railroad, 166 Mo.App. 182; Nufer v. Met. Ry. 182 S.W. 792. The case was tried on the theory that obliviousness of peril was not an element in issue and appellant will not be permitted to raise that issue in the appellate court. Newton v. Harvey, 202 S.W. 251. (2) The peremptory instruction asked by defendant was properly refused. When an automobile driver sees that a collision is about to occur, and that another person is so circumstanced that, though aware of it, he is unable to avoid or escape the danger, the driver's duty to avoid a collision, if he can reasonably do so, is complete, and if he fails to avoid it the injured party's right of recovery is not dependent upon the element of obliviousness. Newton v. Harvey, 202 S.W. 249; Ingino v. Met. St. Ry. Co., 179 S.W. 771; Woods v. Wabash, 188 Mo. 229; Ross v. Railroad, 132 Mo.App. 472; Bybee v. Dunham, 198 S.W. 193; Strother v. Dunham, 193 S.W. 885; Bailey v. Railroad, 224 S.W. 837. (3) Plaintiff's instructions 1 and 2 properly declare the law. If plaintiff's husband got into danger when plaintiff's evidence said it did, then the want of obliviousness to danger had no influence on the driver. Hence, obliviousness to peril was not a contested issue in the case and it was not proper and necessary for the instructions to affirmatively submit this issue to the jury. Bybee v. Dunham, 198 S.W. 193. Also cases cited under points one and two. (4) In the case at bar, if it be assumed that the deceased was guilty of negligence in turning toward the curb and proceeding west upon the left side of the street, and that if he did so, the driver knew that it was impossible for the deceased to get out of the course of the automobile, then it was his duty to use ordinary care to avoid injuring him. These facts make inapplicable. Pope v. Railroad, 242 Mo. 232; Hebler v. St. Ry., 132 Mo.App. 551; Knapp v. Dunham, 195 S.W. 1062.
Plaintiff, the widow of Albert I. Albright, brought this suit to recover damages under section 5426, Revised Statutes of 1909, now section 4219, Revised Statutes 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, Missouri. 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 7th 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 7th 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 7th or left hand and the wrong side of the Street. An automobile truck belonging to defendant, being driven by one of its drivers, was coming east on 7th 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 7th 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 handle-bars 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 on coming 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 ten or twelve 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 on coming truck and himself there would be no case made, which probably accounts for the non-suit entered in the original suit. On this trial, however, two witnesses place the distance where he first stepped off...
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