Anderson v. Northrop

• Citation: 96 S.W.2d 521,230 Mo.App. 1225
• Parties: MARY ANDERSON, BY ROY ANDERSON, HER NEXT FRIEND, RESPONDENT, v. W. F. NORTHROP, RAY NORTHROP AND PEARL NORTHROP, APPELLANTS
• Decision Date: 08 September 1936
• Court: Court of Appeal of Missouri (US)

96 S.W.2d 521

230 Mo.App. 1225

MARY ANDERSON, BY ROY ANDERSON, HER NEXT FRIEND, RESPONDENT, v. W. F. NORTHROP, RAY NORTHROP AND PEARL NORTHROP, APPELLANTS

Court of Appeals of Missouri, Springfield

September 8, 1936

Appeal from the Circuit Court of Newton County.--Hon. E. E. Smith Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Ruark & Ruark and O. R. Puckett for appellants.

In order to make a case upon the humanitarian or last chance doctrine, it is necessary for the proof to show that the driver of the car could, after he saw or should have seen the plaintiff in a position of peril, with the means at hand have avoided the injury. And this cannot be shown by surmise or conjecture. Burton v. Joyce, 22 S.W.2d 890, l. c 891; Wilson v. Flour Mill Co., 245 S.W. 205; Miller v. Wilson, 288 S.W. 997; Markowitz v. R. R. Co., 186 Mo. 350, l. c. 359; Fleming v. R. R. Co., 269 Mo. 180; Milling Co. v. Massman, 83 S.W.2d 128, l. c. 130. Courts cannot take judicial notice of the distance in which an automobile can be stopped. Cluck v. Abe, 328 Mo. 811, 40 S.W.2d 558. A left turn is peculiarly dangerous and one not to be expected. Thompson v. Smith, 253 S.W. 1023, l. c. 1028. "To predicate negligence on two seconds to time is in and of itself a monumental refinement. We cannot adjudicate negligence on such pulse beats and hair splitting, such airy nothings of surmise." Rollison v. Railroad, 252 Mo. 525, l. c. 541. Under the evidence, W. F. Northrop and Ray Northrop were not joint adventurers, and neither was responsible for the negligence of the other, if any, in the driving of the car. Corn v. Railroad, 228 S.W. 78; Petitt v. Kansas City, 267 S.W. 954; Gregory v. Jenkins, 43 S.W.2d 877, l. c. 878; Allen v. Railroad, 313 Mo. 42; 42 C. J. 1179, secs. 957 and 958. The plaintiff and Miss Eleanor North, who was the driver of the car upon the running board of which plaintiff was riding at the time, were out on a joint adventure, that is, a sunrise breakfast party. This was a joint adventure which placed responsibility for North's negligence on the plaintiff. Counts v. Thomas, 63 S.W.2d 416, and cases there cited. Plaintiff was guilty of contributory negligence as a matter of law in riding upon the running board of a car of which an infant was driving. The driver being declared by law incompetent to run and operate the car. R. S. Mo. 1929, sec. 7783 (1); Roark v. Stone, 30 S.W.2d 647. The doing of an act prohibited by law is negligence per se. Weller v. C. M. & S. P. Railroad Company, 120 Mo. 635, l. c. 654; 45 C. J. 969, sec. 523. So one is guilty of contributory negligence by riding with an intoxicated driver. 42 C. J. 1176, sec. 953; French v. Tebben, 27 P.2d 474; Archer v. Borne, 300 S.W. 604. Also it is negligence to ride with a careless and reckless driver. White v. McVicker, 246 N.W. 385; Biersach v. Wechlberg, 238 N.W. 905; McClosky v. Renne, 37 S.W.2d 950, l. c. 954. The duty of having a car equipped with adequate brakes is placed upon the owner by statute and such duty is not devolved upon a bailee or one temporarily in charge of the car. Sec. 7779, R. S. 1929 (c); Plannett v. McFall, 284 S.W. l. c. 853. Ray Northrop, the temporary owner and bailee, much less W. F. Northrop, was under no duty to search for hidden defects. Guile v. Snyder, 263 S.W. 403; 20 R. C. L., p. 13, sec. 9; 42 C. J., p. 893, sec. 596. It was error for the court to submit to the jury a finding upon issues not supported by any evidence in the case, and issues submitted by the instructions to the jury must be within the scope of both the pleadings and of the evidence. Benson v. Smith, 38 S.W.2d 743; Goehring v. Beltz, 14 S.W.2d 502.

Leo H. Johnson, James M. Tatum and Ray Bond for respondent.

The court properly submitted the humanitarian doctrine by instructions in approved form. It is not necessary that a plaintiff plead the "means at hand" or include these particular words in an instruction. Hart v. Weber (Mo.), 53 S.W.2d 915; Anderson v. Davis, 284 S.W. 439, 444, 452, 314 Mo. 515. Courts take judicial notice of all matters of common knowledge including limits in which an automobile traveling at a given rate of speed may be stopped. Spoeneman v. Uhri, 60 S.W.2d 9, 12, 332 Mo. 821. It is not even necessary to submit the question of plaintiff's "obliviousness" to the danger, the jury being entitled to conclude such fact from the evidence. Rogers v. Coach Co., 68 S.W.2d 729, 731; Todd v. Ry. Co. (Mo.), 237 S.W. 868, 871; Willhauk v. Ry. Co., 61 S.W.2d 336, 332 Mo. 1165; Hart v. Weber, supra. Instructions on primary negligence are not necessarily inconsistent with the humanitarian doctrine and in many cases the courts declare both may be given without error. Todd v. Ry. Co., supra; Robinson v. Rd. Co., 66 S.W.2d 180. Respondents were engaged in a "mutual enterprise and were on a common mission. They both knew where they were going," and were "jointly interested in the purpose of the trip." Roland v. Anderson (Mo.), 282 S.W. 752, 754; Counts v. Thomas (Mo.), 63 S.W.2d 416, 418.

SMITH, J. Allen, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

--This suit was filed in McDonald County, Missouri, August 10, 1932, from whence it went on a change of venue to the Circuit Court of Barry County, where it lodged September 22, 1933; thence it was changed to the Circuit Court of Jasper County, at Joplin, where on January 24, 1934, by written stipulation it was transferred to the Circuit Court of Newton County, for trial at the February term, 1934.

The plaintiff sought damages for personal injuries. The jury returned a verdict in her favor for $ 700 against the defendants, W. F. Northrop and Ray Northrop, who have appealed to this court. The suit was also filed against Pearl Northrop, but under the court's direction at the close of the testimony a verdict was returned in her favor.

The case is before us under several assignments of error. We shall consider such of them as we deem necessary, in the order presented.

Both parties have given us a reasonably fair statement of the facts in the case, and we use the respondent's statement of the facts practically as set out in her brief.

On Easter morning, March 27, 1932, plaintiff, Mary Anderson, then thirteen years of age, and some of her young friends, attended an Easter sunrise breakfast along the banks of Hickory Creek a short distance east from Neosho. Around eight o'clock that morning this group of children left for their homes in two automobiles, i. e., a Ford coupe driven by Eleanor North, and a sedan driven by Burney Harbert. There were eight children in and upon the Ford coupe including the driver, Eleanor North and the plaintiff, Mary Anderson.

Eleanor North, the driver of the coupe was fourteen years old; two other youngsters were riding on the seat with her, two were standing on the running board on the right hand side; a boy was sitting on the back end of the coupe; and the plaintiff and another girl were standing on the running board on the left hand side of the coupe.

The Ford coupe left the place of the breakfast first and as it drove through and out from the United States Fish Hatchery grounds on the highway, which highway is an extension of East McKinney Street in Neosho, the Harbert car approached from the east along such street extended, caught up with the Ford coupe and followed a short distance back of it.

Both cars traveled west to the Kansas City Southern Railway tracks at which point the pavement begins on East McKinney Street and continues west 870 feet to Hamilton Street. In this stretch of 870 feet one street known as St. John Street extends north from East McKinney Street at a point 327 feet west from the tracks; and another much used but unnamed street, referred to in the evidence as an alleyway, extends south at a point 500 feet west from the tracks. There were no other streets leading out from or intersecting with East McKinney Street between Hamilton Street and the tracks of the Kansas City Southern Railway Company. St. John Street was a paved street twenty-four feet in width, the alleyway was a gravel road fifteen to twenty feet wide with a paved crossing entrance sixteen feet in width, and East McKinney Street was a paved street thirty feet in width.

Defendants, W. F. Northrop and Pearl Northrop, husband and wife, and their son, Ray Northrop, were at the time in question making their home on a farm near Rocky Comfort in McDonald County, Missouri, although the young man had been for some months in attendance at the Missouri University. Following a short vacation, the son was returning to school that morning. The Northrops had borrowed a Chevrolet sedan of Leona Flaxbeard, sister of Mrs. Northrop, in which car the defendants were riding at the time the injuries complained of by plaintiff were sustained. Mr. and Mrs. Northrop were riding with their son to the depot at Neosho intending to drive home in the Chevrolet car after seeing their son on the train.

The defendants drove into Neosho on what is known as East McKinney Street (extended) running east and west along the north side of the United States Fish Hatchery which lays east from the Kansas City Southern Railway tracks and south of East McKinney Street (extended). The Ford coupe left the United States Fish Hatchery by the north entrance, emerging a short distance in front of the Harbert car then approaching from the east in front of the Northrop or Chevrolet car. These cars traveled west across the tracks. The Ford coupe continued on west, but the Harbert car turned north on St. John Street.

When the Northrop car had shortly crossed the tracks, and, when the Harbert car was turning north into St John Street, the defendants observed the Ford coupe ahead. At that time the Ford coupe was approximately two car lengths...