Benson v. Smith
| Citation | 38 S.W.2d 749 |
| Decision Date | 04 May 1931 |
| Docket Number | No. 17198.,17198. |
| Court | Missouri Court of Appeals |
| Parties | BENSON v. SMITH et al. |
Appeal from Circuit Court, Callaway County; H. A. Collier, Judge.
"Not to be officially published."
Action by J. Lee Benson against Travis Smith and another. From the judgment, defendants appeal.
Reversed and remanded.
Clark, Boggs, Cave & Peterson, of Columbia, for appellants.
Baker & Baker, of Fulton, for respondent.
This is an action for damages for loss of services and expenses incurred by reason of injuries to plaintiff's wife, alleged to have been caused by the negligence of defendants. There was a verdict in favor of plaintiff in the sum of $1,500.00 and defendants have appealed. This is a companion case to that of case No. 17197 decided at this sitting, 38 S. W.(2d) 743.
The testimony in the two cases differ in some slight details and there were three other witnesses to the collision between defendants' car and plaintiff's wife, in the case at bar, who did not testify in the other case, two of whom, being occupants of the Baker car, were produced by plaintiff and one of whom, Rutherford, the owner of the car referred to in the other case as the Rutherford car, was produced by defendants. However, taking the evidence, and all reasonable inferences to be drawn therefrom, in the most favorable light to plaintiff, a case as strong, if not stronger, in his favor was made in the case at bar than was made for plaintiff in the other case and, as the evidence taken in said light is so nearly identical in the two cases, it will not be necessary for us to now restate the testimony in the present case, but for the facts in the present case, we refer to the statement of facts in the opinion in the other case.
The charges of negligence in this case are somewhat different from those in the other and consist of three separate charges only: (1st) That defendants' automobile was being operated at a high, dangerous and negligent rate of speed; (2nd) that defendants carelessly and negligently failed to keep their automobile under control; (3rd) the humanitarian theory, that is, that the driver of defendants' car saw or should have seen plaintiff in a position of danger upon the concrete highway in time to have stopped the car or diverted it from its course, but negligently failed to do so.
It will be noted that there is no allegation of negligence in this case, as was in the other, that the defendants knew or should have known that the highway was blocked when they undertook to pass through or over the cars upon the highway. Notwithstanding this, plaintiff's instruction No. 1, in the case at bar, is substantially in the language of plaintiff's instruction in the other case. Complaint is made of the instruction for the reason that it submits negligence of the driver of defendants' car in not stopping when he saw or should have seen the highway blocked. There is no question but that the instruction was erroneous for the reason that such negligence is not pleaded. Kessler v. West Mo. Power Co., 221 Mo. App. 644, 283 S. W. 705. The instruction was also erroneous, as claimed by defendants, in submitting the humanitarian doctrine. From what we said in the opinion in the other case there is no evidence tending to show that the driver of defendants' car could have avoided the collision with plaintiff's wife, after he saw or should have seen her in peril, that is, in an oblivious or inextricable position. It is also claimed that the instruction was erroneous in submitting that defendants' car was being driven at a high, reckless and dangerous rate of speed, not because there was no evidence to support such allegation, but for the reason that the petition does not allege it as a ground of negligence. This contention is substantially the same as that made in the companion case and, for the reason assigned therein, it is disallowed.
Defendants' point that their demurrer to the evidence should have been sustained is based upon similar...
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