Bauer v. Wood

• Decision Date: 07 October 1941
• Citation: 154 S.W.2d 356,236 Mo.App. 266
• Parties: ROSALIE BAUER, RESPONDENT, v. JAMES L. WOOD, APPELLANT
• Court: Missouri Court of Appeals

154 S.W.2d 356

236 Mo.App. 266

ROSALIE BAUER, RESPONDENT, v. JAMES L. WOOD, APPELLANT

Court of Appeals of Missouri, St. Louis

October 7, 1941

Appeal from Circuit Court of Franklin County.--Hon. Ransom A Breuer, Judge.

REVERSED AND REMANDED (with directions).

Order reversed and cause remanded.

George Gantner, James L. Anding and James Booth for appellant.

(1) Merriam v. Star-Chronicle Publishing Co., 74 S.W.2d 592; Lappin v. Prebe, 131 S.W.2d 511. (2) Defendant's demurrer to the evidence at the close of plaintiff's case and requested again at the close of all the evidence should have been sustained. Smithers v Barker, 111 S.W.2d 47. (3) Millhouser v. K. C Public Service Co., 55 S.W.2d 673. (4) Lamoreaux v Frisco R. R., 337 Mo. 1028, 87 S.W.2d 640; Wallace v. St. Joseph Ry., L. H. & P. Co., 336 Mo. 282, 77 S.W.2d 1011; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 643; McGowan v. Wells, 324 Mo. 682, 24 S.W.2d 633; Sullivan v. Atchison, T. & S. F. Ry. Co., 317 Mo. 996, 297 S.W. 945; State ex rel. Wabash R. Co. v. Bland, 313 Mo. 246, 281 S.W. 690; Smithers v. Barker, 111 S.W.2d 47. (5) The petition in this case alleged several grounds of primary negligence, as well as a violation of the humanitarian rule, and by submitting the humanitarian rule and not submitting the grounds of primary negligence plaintiff thereby abandoned all the charges of primary negligence. Fuenfgeld v. Holt, 70 S.W.2d 143; Yuronis v. Wells, 17 S.W.2d 518; Mayne v. May-Stern Furniture Co., 21 S.W.2d 211; Garvey v. Ladd, 266 S.W. 727, 731; 42 C. J., p. 860, sec. 551; 1 Blashfield's Encyclopedia of Automobile Law, sec. 24, p. 274.

Theodore P. Hukriede for plaintiff.

No Brief.

HUGHES, P. J. McCullen and Anderson, JJ., concur.

OPINION

HUGHES, P. J.

--This is an action for damages for personal injuries sustained in an automobile collision. Tried before a jury the verdict was for the defendant. A motion by plaintiff for a new trial was sustained because of an alleged error in one of defendant's instructions, and defendant has appealed from the order granting plaintiff a new trial.

In her petition plaintiff alleged primary negligence of defendant's failure to have his automobile under control, failure to swerve, slow down, check the speed or stop, failure to keep a lookout and failure to warn, and also alleged negligence under the humanitarian rule.

In stating the facts we will refer to the automobile in which plaintiff was riding as the Bauer car and defendant's automobile as the Wood car.

The occupants of the Bauer car were as follows: Loren G. Bauer, plaintiff's husband, was driving the car, and Roscoe Moore, plaintiff's father and the owner of the car, was on the front seat beside the driver, plaintiff was on the rear seat back of her father and by her side was her little daughter. The occupants of the Wood car were as follows: James L. Wood, defendant and owner of the car, was driving, Mrs. Wood was on the front seat beside her husband, Emmert Klepper was on the rear seat back of Mrs. Wood, and Miss Esther Peters was on the rear seat back of the driver.

The Bauer car was traveling west along Highway 66, a concrete highway which has four travel lanes each nine feet wide, in St. Louis County, and on the right hand or north lane of the highway. Mr. Bauer discovered that the gasoline in the car was low and decided to stop and get gasoline, and seeing a filling station up the road and on the south side of the road, he pulled over into the inside lane next to the center of the highway, and reduced the speed of the car and put the car in second gear, intending to cross the two south lanes of the highway in order to get to the filling station. He saw two cars approaching from the west, and after the first of these cars passed him he thought he had time to go across ahead of the other car, which was the Wood car. He started across the two south lanes, which are for the use of eastbound travel, at an angle of 45 degrees towards the filling station, and when he had reached a point where the front wheels of the car were on the shoulder south of the south lane and the remainder of the car was on the south lane, the car was struck by the Wood car at about the rear wheel of the car. Occupants of both cars were injured. The view was unobstructed. Mr. Bauer testified that when he turned the car to drive at an angle of 45 degrees across the two south lanes he was driving at a rate of ten miles an hour, and he could have stopped instantly, but thought he could get across, and that the Wood car was 150 to 200 yards to the west at that time.

Plaintiff's witness Clinton Kidd testified that he was at the filling station; that he did not see the cars until he heard the brakes applied to the Wood car, and at that time it was within forty-five or fifty feet of the Bauer car, and was traveling at the rate of forty or forty-five or fifty miles an hour.

Plaintiff's witness George Nelson testified that he was driving an automobile east on Highway 66, and that the Wood car passed him about 300 yards west of the place of the collision, and at that time the Wood car was traveling at a rate close to sixty miles an hour.

Roscoe Moore, plaintiff's father, testified that when the Bauer car started across the two south lanes of the highway the Wood car was 200 or 250 yards to the west. That the Bauer car was a chevrolet and was about twelve feet long.

Defendant's evidence was to the effect that the Wood car was traveling east on the south lane of the highway at a rate of forty or forty-five miles an hour, and that the Bauer car turned directly in front of the Wood car within a distance, varying with the different witnesses, of from thirty to seventy-five feet of the Wood car, and that Mr. Wood immediately applied the brakes and tried to swerve his automobile but could not stop or avoid the collision.

At the close of all of the evidence plaintiff abandoned all charges of antecedent negligence and elected to submit her case solely on the charge of negligence under the humanitarian rule.

Defendant's (appellant's) contention is that there was no error in his instructions which would warrant the court in sustaining plaintiff's motion for a new trial, but that regardless of whether there was error in the instructions, plaintiff did not present a submissible case under the humanitarian rule, and defendant's demurrer at the close of the evidence should have been sustained. We are not favored with brief or argument on respondent's part.

We can see no escape from the conclusion that plaintiff failed to present a submissible case under the humanitarian rule. The mere fact of the Wood automobile colliding with the Bauer automobile is not of itself any proof whatever of omission of duty on defendant's part to prevent the collision after discovering plaintiff in a position of peril. The question of whether or not defendant was negligent does not depend upon a consideration after the accident has occurred of what might have been done to avoid the accident, but it depends upon what, under the then present circumstances before the accident, could reasonably have been anticipated by the defendant and provided against. [Mann v. Pulliam, 344 Mo. 543, 127 S.W.2d 426.] It was incumbent upon plaintiff to place before the jury facts from which the jury could reasonably and intelligently conclude that defendant was...