Baker v. Wood

• Decision Date: 03 July 1940
• Docket Number: No. 36113.,36113.
• Parties: BAKER v. WOOD et al.
• Court: Missouri Supreme Court

142 S.W.2d 83

BAKER v. WOOD et al.

No. 36113.

Supreme Court of Missouri, Division No. 2.

July 3, 1940.

Appeal from Circuit Court, Jasper County, Division No. 2; Wilbur J. Owen, Judge.

Action by Harve Baker against Earl Wood and another, for damages arising out of an automobile accident. From a judgment for defendant, plaintiff appeals.

Affirmed.

Kelsey Norman, Alfred K. Lee, and Henry Warten, all of Joplin, for appellant.

Paul E. Bradley, of Joplin, Frank R. Birkhead, of Carthage, and T. J. Stubbs, of Kansas City, for respondents.

BOHLING, Commissioner.

Harve Baker asked $25,400 damages of Earl Wood and Mid-Continent Petroleum Corporation, a corporation, as the result of an automobile accident. He appeals from a judgment for defendants, and complains of the refusal of an instruction which he contends correctly submitted the humanitarian theory of his case. The facts of record involved on that issue follow:

The accident occurred December 13, 1935, approximately seven miles northwest of Joplin, Missouri, on highway No. 57, a two lane highway, running northwest and southeast, with a center line. The Kansas City Southern Railway's tracks are adjacent to the highway on the west. The tracks and the highway are located on embankments or fills. On the day of the collision, a railroad section crew was burning the grass and weeds on the area between the tracks and the pavement, a high wind was blowing, and wisps and clouds of smoke would blow over the highway. Plaintiff was operating his truck in a southerly direction and defendant Wood was operating a gasoline truck in a northerly direction over the highway. As plaintiff approached the point of impact he noticed the fire along the railroad and highway rights of way (some of the flames were at the west edge of the concrete) and the smoke being blown across the highway. Plaintiff testified that he was passing through smoke; that he slowed down to fifteen miles an hour; that he was driving on his right hand side of the pavement; that he observed defendant Wood's truck approaching at the rate of forty-five miles an hour, apparently, on the east, its right hand, side of the highway about three-hundred feet away when a gust of smoke suddenly enveloped plaintiff; that he (plaintiff) did not change his speed; that he couldn't see anything—his windshield, the frame of his truck, the road or where he was driving; that he could have stopped in thirty or forty feet, and that the crash came and he was injured. Defendant Wood testified he did not see plaintiff's truck; that he was traveling on his, the east, half of the pavement about thirty-five to forty miles an hour but slowed down to fifteen or twenty miles when he reached the smoke being blown across the highway; that he could have stopped his automobile in ten or fifteen feet but that he made no attempt to stop before the collision. Witnesses placed the width of this particular smoke cloud at from thirty to seventy-five or more feet. There was no testimony that Wood's truck, prior to entering the cloud of smoke, was on plaintiff's side of the pavement.

We do not set out the refused instruction. Assuming it was correctly drafted in other respects, it required defendant Wood, under the humanitarian doctrine, to stop his automobile "before driving into said cloud of smoke." The court did not err for a number of reasons; for instance, because the instruction unduly extended the danger zone.

The basic factor of the humanitarian doctrine is an imminent or impending peril. State ex rel. v. Trimble, Banc, 300 Mo. 92, 106(III), 253 S.W. 1014, 1018 [3]. Frequently quoted are White, J.'s observations on "imminent peril" in Banks v. Morris & Co., Banc, 302 Mo. 254, 273 (II), 257 S.W. 482, 483, 486(II): "That does not mean remote, uncertain, contingent, nor (for the person affected) avoidable danger. It is imminent, immediately impending; it...