Ayres v. Key

• Decision Date: 13 June 1949
• Docket Number: 41223
• Citation: 221 S.W.2d 719,359 Mo. 341
• Parties: Joseph T. Ayres, Respondent, v. Edgar Allen Key, Appellant
• Court: Missouri Supreme Court

221 S.W.2d 719

359 Mo. 341

Joseph T. Ayres, Respondent, v. Edgar Allen Key, Appellant

No. 41223

Supreme Court of Missouri

June 13, 1949

Rehearing Denied July 11, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

SYLLABUS

Plaintiff pedestrian was struck by defendant's automobile at a street intersection and recovered a judgment. There was a submissible humanitarian case on each of the issues of failure to warn, swerve or stop. Plaintiff's estimate of defendant's speed was not conclusive. The verdict was not excessive.

Moser, Marsalek, Carpenter, Cleary & Carter, F. X. Cleary and William H. Allen for appellant.

(1) Plaintiff was not in a position of imminent peril until he took the last step, and since there is nothing in the evidence to support a finding that thereafter there was time or opportunity for defendant to do anything to avoid the injury, no recovery may be had under the humanitarian rule. Johnson v. Kansas City Pub. Service Co., 214 S.W.2d 5; Blaser v. Coleman, 213 S.W.2d 420; Lotta v. Kansas City Pub. Service Co., 342 Mo. 743, 117 S.W.2d 296; Steuernagel v. St. Louis Pub. Service Co., 211 S.W.2d 696; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Kirkpatrick v. Wabash R. Co. 213 S.W.2d 765; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Shepherd v. Chicago, R.I. & P. Ry. Co., 335 Mo. 606, 72 S.W.2d 985. (2) A situation of imminent peril is the basic fact of the humanitarian doctrine. No duty whatever arises under that doctrine unless and until a situation of imminent peril comes into existence; and when such peril rises, the doctrine seizes upon the situation as it then exists and for the first time places a duty on the party operating the instrumentality to thereafter avoid injury to the person in such peril if this may be done by the exercise of due care with the means and appliances at hand. Steuernagel v. St. Louis Pub. Service Co., 211 S.W.2d 696; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Blaser v. Coleman, 213 S.W.2d 420; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798. (3) A situation of "imminent peril," in which the plaintiff must be placed to impose a duty upon the defendant under the humanitarian doctrine, must be a certain, imminent, immediately impending peril. A bare possibilty or even likelihood of injury to the plaintiff is not sufficient. Blaser v. Coleman, 213 S.W.2d 420; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 713; Wallace v. St. Joseph Ry., Light, Heat & Power Co., 336 Mo. 282, 77 S.W.2d 1011; Ziegelmeier v. East St. Louis & Sub. R. Co., 330 Mo. 1013, 51 S.W.2d 1027. (4) As defendant's automobile approached Grand Boulevard from the west plaintiff was in a place of perfect safety, away from the path of the line of eastbound automobiles at the rear of which defendant was traveling. Defendant had the right to assume that plaintiff would remain in such place of safety, and was under no duty under the humanitarian rule to take any steps to avoid injuring plaintiff prior to the time when the latter stepped to the north as the automobile was passing him and turning to the right, and thus came in contact with the right side thereof. Johnson v. Kansas City Pub. Serv. Co., 214 S.W.2d 5; Blaser v. Coleman, 213 S.W.2d 420; Shepherd v. Chicago, R.I. & P. Ry. Co., 335 Mo. 606, 72 S.W.2d 985; State ex rel. St. Louis-S.F. Ry. Co. v. Reynolds, 289 Mo. 479, 223 S.W. 219; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. (5) Since plaintiff alleged that defendant's automobile was operated at a high, excessive and dangerous rate of speed, and testified that from the time he first saw it until the impact it was proceeding at the rate of 25 or 30 miles an hour, he is bound thereby and cannot avail himself of conflicting testimony by defendant as to the speed of the vehicle. Johnson v. Kansas City Pub. Serv. Co., 214 S.W.2d 5; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Steuernagel v. St. Louis Pub. Serv. Co., 211 S.W.2d 696; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847. (6) No recovery may be had on the theory that defendant was negligent in failing to stop his automobile after the peril arose, not only for the reason that there was no testimony as to the distance in which the automobile could have been stopped going 25 or 30 miles an hour, but because plaintiff's own testimony shows that his injury followed forthwith upon his stepping into a position of peril. (7) Nor may a recovery be had on the theory that defendant was negligent in failing to swerve his automobile away from plaintiff after the peril arose. According to plaintiff's testimony the automobile was in the very act of passing him, and turning to the right, when he stepped forward and came in contact therewith. It is inconceivable that after the peril thus arose defendant could have avoided the injury by swerving his automobile to the left. Such a finding could rest only on speculation and conjecture. Steuernagel v. St. Louis Pub. Serv. Co., 211 S.W.2d 696; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Wolverton v. Kurn, 348 Mo. 908, 156 S.W.2d 638. (8) And since it is conceded that plaintiff saw the automobile when it was 40 or 50 feet away and watched it until the impact causing his injury, and hence needed no warning of its approach, no recovery may be had on the theory that defendant was negligent in failing to sound a warning of the approach of the automobile. Obliviousness is a necessary element in making a humanitarian case of failure to warn. Pentecost v. St. Louis Merchants Bridge Term. R. Co., 334 Mo. 572, 66 S.W.2d 533; Latta v. Kansas City Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296; Clark v. Atchison, T. & S.F.R. Co., 319 Mo. 865, 6 S.W.2d 954. (9) The settled rule is that where an instruction covering the case and directing a verdict submits two or more charges of negligence in the alternative, authorizing a verdict on any thereof, then all such charges must be supported by the evidence or the instruction will be held erroneous. Carlisle v. Tilghmon, 159 S.W.2d 663; Setser v. St. Louis Pub. Serv. Co., 209 S.W.2d 746; Miller v. Kansas City Pub. Serv. Co., 238 Mo.App. 247, 148 S.W.2d 219; Monsour v. Excelsior Tobacco Co., 15 S.W.2d 219. (10) The verdict in the sum of $ 10,000 is excessive. Arno v. St. Louis Pub. Serv. Co., 356 Mo. 584, 202 S.W.2d 987; Clark v. Mississippi River & Bonne Terre Ry. Co., 324 Mo. 406, 23 S.W.2d 174; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865; Asby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27; Ruppel v. Clayes, 230 Mo.App. 699, 72 S.W.2d 883; Johnston v. St. Louis, 138 S.W.2d 666.

J. C. Guise, Jr., and Everett Hullverson for respondent; Douglas MacLeod of counsel.

(1) Respondent is entitled to the benefit of all evidence adduced by the appellant which is not directly at war with his own theory, and is not absolutely bound by his own testimony as to time, speed, or distance, when such testimony was based on estimates or approximations. Elkin v. St. Louis Pub Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Dennis v. Wood, 211 S.W.2d 470; State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406; Pearson v. K.C. Pub. Serv. Co., 217 S.W.2d 276. (2) Respondent is entitled, in a case such as this, to the benefit of calculations of a very minute character respecting speed and distance. Zickefoose v. Thompson, 347 Mo. 479, 148 S.W.2d 784; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633; Gerran v. Minor, 192 S.W.2d 57. (3) The evidence viewed in the light most favorable to the respondent was sufficient to sustain the verdict (cases cited below are a few pertinent pedestrian-automobile cases, where the reviewing court found a submissible humanitarian case). Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761; Chastain v. Winton, 347 Mo. 1211, 152 S.W.2d 165; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Brown v. Callicotte, 73 S.W.2d 190; Allen v. Kessler, 64 S.W.2d 630; Steger v. Meehan, 63 S.W.2d 109; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Gray v. Columbia Terminals, 331 Mo. 73, 52 S.W.2d 809; Silliman v. Munger, 329 Mo. 235, 44 S.W.2d 159; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327; Breitschaft v. Wyatt, 167 S.W.2d 931; Hodgins v. Jones, 64 S.W.2d 309; Riechers v. Meyer, 28 S.W.2d 405; Erxleben v. Kaster, 21 S.W.2d 195; Nabe v. Schnellman, 254 S.W. 731; Leahy v. Winkel, 251 S.W. 483; Schinogle v. Baughman, 228 S.W. 897. (4) The question of the existence of imminent peril is ordinarily a question of fact for the jury. Johnson v. Hurck Delivery Service, 353 Mo. 1207, 187 S.W.2d 200; Pennington v. Weis, 184 S.W.2d 416. (5) It is, of course, not necessary to the existence of a "position of peril" that the pedestrian be oblivious to the peril. Obliviousness is a subsidiary, evidentiary matter. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482. (6) Obliviousness of the peril, or its absence, on the part of the pedestrian may determine the zone of peril in a proper case. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935; Chastain v. Winton, 347 Mo. 1211, 152 S.W.2d 165; Gray v. Columbia Terminals, 331 Mo. 73, 52 S.W.2d 809; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Breitschaft v. Wyatt, 167 S.W.2d 931. (7) "Obliviousness of peril" does not require obliviousness of the existence or approach of the oncoming automobile. A pedestrian may be...