Batson v. Ormsbee

• Decision Date: 05 July 1957
• Docket Number: No. 7587,7587
• Parties: Alta BATSON (Bays), Plaintiff-Respondent, v. Myrton E. ORMSBEE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 680

304 S.W.2d 680

Alta BATSON (Bays), Plaintiff-Respondent, v. Myrton E. ORMSBEE, Defendant-Appellant.

No. 7587.

Springfield Court of Appeals, Missouri.

July 5, 1957.

Motion for Rehearing or to Transfer Overruled Sept. 6, 1957.

Wangelin & Friedewald, Poplar Bluff, for defendant-appellant.

Bloodworth & Bloodworth, Poplar Bluff, for plaintiff-respondent.

STONE, Judge.

As Myrton E. Ormsbee, defendant herein, south-bound in his 1948 Pontiac automobile on Highway 53 in Butler County, Missouri, was making a left turn toward the east into the private driveway to his farm home, his automobile was struck 'about the rear of the left front fender' by the right front portion of a south-bound 1953 Pontiac automobile then being driven by William C. Batson, plaintiff's husband. In this accident about 11:55 A.M. on February 28, 1955, Batson sustained 'a chest injury,' evidenced by 'severe pain in his chest' and three fractured ribs on his right side; and, on April 25, 1955, he died from 'reoccurrence of his heart failure' (originally suffered in September, 1954), to which reoccurrence his attending physician thought that the chest injury contributed. In this action for alleged wrongful death of her husband, Alta Batson (now Bays) obtained a judgment, from which defendant appeals.

The cause was submitted solely upon alleged humanitarian negligence in failure 'to turn and swerve * * * to the right,' and the only issue on appeal is whether plaintiff made a submissible case on that theory. In resolving that question, we consider the evidence in the light most favorable to plaintiff and accord to her the benefit of all favorable inferences reasonably deducible therefrom [De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 633(3)], bearing in mind, however, that she may not have the benefit of defendant's evidence contradictory of her own and at war with her fundamental theory of the case. Fisher v. Gunn, Mo., 270 S.W.2d 869, 873-874, and cases there collected.

Highway 53 has a two-lane blacktop pavement, about twenty feet in width, with a white center line. The road is practically level and perfectly straight, 'as far as you can see in either direction' from the point of collision. At the time of accident, the pavement was dry. The only witnesses upon trial, whose testimony bore upon the issue of negligence, were W. E. Kelm (a passenger in the Batson automobile), Sgt. John N. Crow (the investigating officer of the Missouri State Highway Patrol but not an eyewitness), and defendant Ormsbee. Plaintiff's theory of the case, as developed by witness Kelm, follows.

The Batson automobile had followed the Ormsbee automobile for four or five miles, with both vehicles traveling about thirty-five miles per hour and with Batson 'something like half a quarter' behind Ormsbee. After both Ormsbee and Batson had passed around two other southbound vehicles and were 'something like half a mile' ahead of them, Batson 'drove up faster and got closer and * decided to go on around' Ormsbee. When Batson 'got up pretty close' to the Ormsbee automobile, within 'something like fifty feet' (as Kelm said on direct examination) or 'something like a hundred feet' (as he thrice averred on cross-examination), Batson turned into the left-hand or east lane of Highway 53 to pass around the Ormsbee automobile, which was then in the right-hand or west lane and was two hundred to two hundred fifty feet north of the Ormsbee driveway. Batson 'was driving about thirty-five' when he turned into the left-hand or east lane, but 'he stepped on up to go around' Ormsbee, so that 'he (Batson) was driving between forty and fifty.' With the overtaking Batson automobile twenty-five to thirty feet behind the Ormsbee automobile, Batson (so Kelm said) 'tooted his horn a couple of times.' Illustrative of the confusion and inconsistency in Kelm's testimony, we observe that, when asked how far the Ormsbee automobile was from the driveway at that time, Kelm first answered 'well, he was getting right close to the driveway,' later said 'well, I don't know to be exactly,' and finally hazarded an estimate of 'about two hundred and fifty feet.' However, Kelm definitely stated that the Ormsbee automobile was still in the righthand or west lane of Highway 53.

Plaintiff's argument on appeal is anchored to, and dependent upon, the factual premise that Ormsbee started to turn to the left or east when his automobile was about one hundred fifty feet north of the driveway. One isolated, unresponsive, petulant answer in Kelm's cross-examination so suggested; but, taking his testimony as a whole, it is clear that his final and actual account, which we must accept [consult Hoffman v. Illinois Terminal R. Co., Mo.App., 274 S.W.2d 591, 593(1); Carrow v. Terminal R. Ass'n of St. Louis, Mo.App., 267 S.W.2d 373, 378-379; Partney v. Agers, 238 Mo.App. 764, 772, 187 S.W.2d 743, 747(1)], was that Ormsbee was 'about twenty-five feet' north of his driveway 'when he turned, first turned over.' And, regardless of the precise distance between the Ormsbee automobile and the driveway at the time of Ormsbee's turn, the more important and essentially determinative fact established by Kelm, beyond room for argument, was that, when Ormsbee first turned to the left or east, the Batson automobile was 'somewhere along about the side of' the Ormsbee automobile (as Kelm said on two occasions), or the front end of the Batson automobile was 'about the middle of his (Ormsbee's) car' or 'somewhere along in front of the hind wheels' of the Ormsbee automobile or 'something about the back end' of that vehicle (as Kelm, from time to time, testified). At the moment of impact, the left wheels of the Batson automobile were just off the east edge of the pavement, and the front end of the left-turning Ormsbee automobile was in the east lane but had not reached the east shoulder. Although declining to estimate Ormsbee's speed when he attempted the left turn, Kelm knew that 'he (Ormsbee) never slowed down too much to turn in.' Ormsbee's estimate of his speed as he turned was fifteen to eighteen miles per hour.

The first and basic fact of liability under the humanitarian doctrine is a position of imminent peril. Banks v. Morris 3 Co., 302 Mo. 254, 267, 257 S.W. 482, 484; Hendrick v. Kurn, 352 Mo. 848, 850, 179 S.W.2d 717, 719; Anderson v. Prugh, 364 Mo. 557, 565, 264 S.W.2d 358, 364(8). 'The peril truly must be imminent--that is, certain, immediate, and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient to create imminent peril.' Blaser v. Coleman, 358 Mo. 157, 160, 213 S.W.2d 420, 421(2); Kelley v. St. Louis Public Service Co., Mo., 248 S.W.2d 597, 602; Wilson v. Toliver, Mo., 285 S.W.2d 575, 583(13). It is only when such imminent peril arises that the humanitarian doctrine, blotting out antecedent negligence, seizes upon the then existing situation and imposes a duty thereafter to exercise proper care to avoid infliction of the threatened injury. Welch v. McNeely, Mo., 269 S.W.2d 871, 876(6); McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 507, 251 S.W.2d 704, 708; Johnson v. St. Louis Public Service Co., 363 Mo. 380, 251 S.W.2d 70, 75(6). Of course, it is essential to liability under the humanitarian doctrine that, after (either actual or, in a discoverable peril case, constructive) notice of plaintiff's position of imminent peril, defendant must have had the present ability with the means at hand to have averted the impending harm without injury to himself or others. West v. St. Louis-San Francisco R. Co., Mo., 295 S.W.2d 48, 52(5); Wapelhorst v. Lindner, Mo., 269 S.W.2d 865, 871(8); Knight v. Richey, 363 Mo. 293, 300, 250 S.W.2d 972, 976(5).

The plaintiff in a humanitarian case, as in other actions, must establish every essential element of his theory of submission by substantial evidence of probative value or by inferences reasonably deducible therefrom [Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787(1); Harmon v. Thompson, Mo.App., 226 S.W.2d 102, 104(1)], and a judgment for plaintiff on a humanitarian submission may not stand where it rests solely upon speculation, conjecture and surmise [Yeaman v. Storms, 358 Mo. 774, 779, 217 S.W.2d 495, 499; Bauer v. Wood, 236 Mo.App. 266, 270, 154 S.W.2d 356, 359(6)], either with respect to the basic element of plaintiff's position of imminent peril [Paydon v. Globus, Mo., 262 S.W.2d 601, 603; Kasten v. St. Louis Public Service Co., Mo.App., 266 S.W.2d 1, 4(3)] or with respect to defendant's ability, after notice thereof, to have averted the accident with the means at hand. Stephens v. Thompson, Mo., 293 S.W.2d 392, 395(7-9); Meese v. Thompson, 344 Mo, 777, 783, 129 S.W.2d 847, 850; Berry v. McDaniel, Mo.App., 269 S.W.2d 666, 670-671(5-8); Swain v. Anders, 235 Mo.App. 125, 133, 140 S.W.2d 730, 736(9).

Batson did not come into a position of imminent peril until the moment that Ormsbee began to turn his automobile to the left or east. Napier v. Ferris, Mo.App., 159 S.W.2d 364, 366-367; Liles v. Associated Transports, 359 Mo. 87, 96, 220 S.W.2d 36, 40. See also Phillips v. Henson, 326 Mo. 282, 289, 30 S.W.2d 1065, 1067; McCoy v. Home Oil & Gas Co Mo.App., 60 S.W.2d 715, 725; Vandenberg v. Snider, Mo.App., 83 S.W.2d 201, 202; Hagerman v. Rodgers, Mo.App., 101 S.W.2d 526, 528-529. When Ormsbee so turned, the front end of the Batson automobile, traveling at forty to fifty miles per hour, was (according to plaintiff the most favorable view of the evidence as stated in the language of her counsel) 'about even with the rear end of the Ormsbee car.' We are convinced that any determination that Ormsbee thereafter had the present ability with the means at hand to have averted the impending injury would rest on nothing more tangible or substantial than rank speculation, unbridled conjecture and sheer surmise. '(R)egardless of whether (Ormsbee) may or may not have been guilty of negligence in other conceivable...