Baldwin v. Wells, 21067.

Citation27 S.W.2d 435
Decision Date06 May 1930
Docket NumberNo. 21067.,21067.
PartiesBALDWIN v. WELLS.
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Emmett Baldwin against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals.

Affirmed.

T. E. Francis and Vance J. Higgs, both of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on May 26, 1924, when an automobile in which he was riding was struck by one of defendant's street cars at the intersection of Laclede avenue and Kingshighway boulevard, in the city of St. Louis. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $3,500, and, from the judgment rendered, defendant has duly appealed.

The nature of the one point urged on this appeal dispenses with the necessity for any further reference to the pleadings than will be made in connection with the disposition of appellant's contention.

In the submission of the case to the jury, plaintiff relied, among other matters, upon defendant's negligence under the humanitarian doctrine, and he submitted such theory of recovery by an instruction, which was concededly correct in form, and embraced within its hypotheses all the constitutive elements of the humanitarian doctrine, as we have come to understand it. The propriety of the giving of such instruction is nevertheless vigorously attacked upon the theory that the petition did not support and warrant it, so that the sole point for our determination is whether the charge of negligence in the petition, unassailed before the trial, and criticized for the first time after verdict and judgment, was sufficient to constitute an assignment of negligence based upon defendant's violation of the humanitarian doctrine. The assignment in controversy follows:

"Defendant saw and knew, or by the exercise of ordinary care could have seen and known, that plaintiff was in said motor vehicle, and that said motor vehicle was about to be driven on and over said street railway tracks, in time to have warned the occupants of said vehicle of the impending danger, and in time to have slackened the speed of said street car, or stopped the same, so as to have avoided striking said vehicle and injuring the plaintiff, but defendant negligently and carelessly failed to do so, and negligently and carelessly ran said street car against said motor vehicle, and against plaintiff."

Briefly stated, the argument of counsel for appellant is that the petition did not charge that plaintiff was in a position of imminent peril of which the motorman had actual or constructive knowledge; that the words "impending danger," as used in a subsequent portion of the charge, did not supply the deficiency; and that, at any rate, the words "impending danger" were used only in connection with the charge that the motorman could have warned the occupants of the automobile, and not in connection with the allegation that he might have slackened the speed of or have stopped the car.

While the language of the assignment does differ measurably from the accepted statement of the humanitarian rule, and certainly does no credit to the one who drew it, yet we cannot believe that, when its sufficiency is first questioned in the appellate court, it may fairly be held subject to the charge that it states absolutely no cause of action for negligence under such doctrine. We say this for the reason that, even though an objection to the sufficiency of a petition may be made after verdict, yet such course is not viewed with favor by the courts; and, when the objection appears in such belated and untimely fashion as is here the case, the petition will be sustained, if by reasonable intendment, fair implication from the facts stated, or a most liberal construction, the essential allegation may be got at by inference. Timmermann v. St. Louis Architectural Iron Co., 318 Mo. 421, 1 S.W.(2d) 791; Tiller v. Farmers' Mutual Fire Insurance Co., 220 Mo. App. 1337, 296 S. W. 464; Munoz v. American Car & Foundry Co., 220 Mo. App. 902, 296 S. W. 228; Hardy v. Lewis Automobile Co. (Mo. App.) 297 S. W. 169.

We may concede, as counsel for appellant suggests, that under the humanitarian doctrine "the position of peril" is one of the basic facts of liability, and in fact may be denominated the chief one, and that the perilous situation of the plaintiff, and the defendant's actual or constructive knowledge of it, are the essential facts which must be pleaded in order to sustain a recovery. Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482; Bode v. Wells (Mo. Sup.) 15 S.W.(2d) 335, 336; State ex rel. v. Trimble, 300 Mo. 92, 253 S. W. 1014; State ex rel. v. Bland (Mo. Sup.) 15 S.W.(2d) 798; Thompson v. Quincy,...

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9 cases
  • Scott v. Missouri Pac. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 3 d4 Agosto d4 1933
    ...R. 894; Gage v. Railroad Co., 90 A. 855, 77 N.H. 289, L. R. A. 1915A, 363; Trask v. Railroad Co., 106 N.E. 1022, 219 Mass. 410; Baldwin v. Wells, 27 S.W.2d 435; Clark A. T. & S. F., 319 Mo. 865, 6 S.W.2d 954; Beal v. Ry., 256 S.W. 733; Maginnis v. Railroad Co., 268 Mo. 667, 187 S.W. 1165; E......
  • Ridge v. Jones
    • United States
    • United States State Supreme Court of Missouri
    • 17 d4 Maio d4 1934
    ...253 S.W. 1014, 300 Mo. 92; Stewart v. Mo. Pac. Ry. Co., 272 S.W. 696; Ziegelmeier v. E. St. Louis Sub. Ry. Co., 51 S.W.2d 1029; Baldwin v. Wells, 27 S.W.2d 435. The court erred in refusing defendant's peremptory instruction requested at the close of plaintiff's evidence and at the close of ......
  • Weatherly v. Rabe
    • United States
    • United States State Supreme Court of Missouri
    • 22 d5 Dezembro d5 1933
    ......Calcaterra,. 33 S.W.2d 911; Smith v. Ozark Water Co., 238 S.W. 573; Wilson v. Wells, 13 S.W.2d 545; Banks v. Morris, 302 Mo. 254; Baldwin v. Wells, 27. S.W.2d 435. (3) The ......
  • Birmingham Ice & Cold Storage Co. v. Alley, 6 Div. 385.
    • United States
    • Supreme Court of Alabama
    • 20 d4 Dezembro d4 1945
    ......542, 26 N.E. 178, 179;. Hall v. Town of Manson, 90 Iowa 585, 58 N.W. 881;. Baldwin v. Wells, Mo.App., 27 S.W.2d 435. . . A. charge that does not probably injuriously ......
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