Blunk v. Snider

• Decision Date: 17 December 1937
• Docket Number: 34981
• Citation: 111 S.W.2d 163,342 Mo. 26
• Parties: Laura J. Blunk, Appellant, v. Sam H. Snider
• Court: Missouri Supreme Court

111 S.W.2d 163

342 Mo. 26

Laura J. Blunk, Appellant, v. Sam H. Snider

No. 34981

Supreme Court of Missouri

December 17, 1937

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed and remanded.

Cooper Neel, Kemp & Sutherland for appellant.

(1) The court erred in giving, at the request of defendant Instruction G for the following reasons: Said instruction hypothesized facts not supported by, based upon or confined to the evidence in the case, and contrary to the positive, undisputed evidence in the case and contrary to the admissions of defendant himself; misstated the converse of the humanitarian rule (as applied to the facts in the case at bar) which it undertook to declare; constituted a roving commission to the jury and was misleading and confusing. Instruction G hypothesized two separate and distinct facts connected in the instruction only by the conjunction "and," neither of which hypothesized facts is based or supported by any evidence in the case, and for this reason said instruction is erroneous. Start v. Natl. Newspaper Assn., 222 S.W. 872; Shaw v. Fulkerson, 96 S.W.2d 498; Althage v. People's Motorbus Co., 8 S.W.2d 926; Bury v. St. Louis-S. F. Ry. Co., 17 S.W.2d 552; Lackey v. United Rys. Co., 231 S.W. 963. This instruction is further erroneous for the reason that it is a misstatement of the converse of the humanitarian rule (as applied to the facts in the case at bar), which the said instruction undertook to declare, and constitutes a roving commission to the jury and is confusing and misleading. Banks v. Morris & Co., 302 Mo. 267; Taylor v. Superior Oxy-Acetylene Co., 73 S.W.2d 186; State ex rel. Fleming v. Bland, 15 S.W.2d 800; Smith v. Wells, 31 S.W.2d 1023. Instruction G, as it stands, gives the jury a roving commission and is confusing and misleading. Raybourn v. Phillips, 160 Mo.App. 541; Kuhlman v. Water, Light & Transit Co., 271 S.W. 800, 307 Mo. 643. (2) The court erred in giving, at the request of defendant, Instruction D, in that said Instruction D, in order to permit plaintiff to recover, casts upon plaintiff a greater burden than is required by law. Bauer Grocery Co. v. Sanders, 74 Mo.App. 660; Mitchell v. Dyer, 57 S.W.2d 1083; Rouchene v. Gamble Const. Co., 89 S.W.2d 63; Nelson v. Evans, 93 S.W.2d 695. (3) The court erred in excluding testimony offered on behalf of plaintiff to the effect that defendant had not paid or assumed the obligation to pay for the services and care rendered plaintiff at St. Mary's Hospital for the ten weeks, and by so ruling erroneously prevented plaintiff from combating the false and highly prejudicial inference which might reasonably flow from evidence previously admitted, that defendant had borne this burden on plaintiff's behalf, and from this logical inference permitted defendant's counsel to make the highly prejudicial argument that plaintiff's act in bringing suit against defendant, after leaving the hospital, was an act of ingratitude. Hutson v. Mo. Pac. Ry. Co., 50 Mo.App. 304; St. Louis v. Worthington, 52 S.W.2d 1009; Larkin v. Wells, 12 S.W.2d 511; Brendel v. Union E. L. & P. Co., 252 S.W. 641.

Paul C. Sprinkle and Sprinkle & Knowles for respondent.

(1) The court did not err in giving Instruction G for any of the reasons assigned by appellant. Banks v. Morris, 257 S.W. 484; Liese v. Meyer, 45 S.W. 285; Smith v. Bridge Co., 30 S.W.2d 1085; Jones v. Ry. Co., 63 S.W.2d 99; Larey v. Railroad Co., 64 S.W.2d 684; Jenkins v. Life Ins. Co., 69 S.W.2d 669; Null v. Stewart, 78 S.W.2d 79; Borgstede v. Waldbauer, 88 S.W.2d 377; Oliver v. Morgan, 73 S.W.2d 995; Collins v. Beckmann, 79 S.W.2d 1055; Wilson v. Chattin, 72 S.W.2d 1002. (2) The court did not err in giving Instruction D because no greater burden was imposed upon the plaintiff. Nelson v. Evans, 93 S.W.2d 691; Denkman v. Prudential Fixture Co., 289 S.W. 591; Hicks v. Vieths, 46 S.W.2d 604; Payne v. Reed, 59 S.W.2d 43; Aly v. Terminal Railroad Assn., 78 S.W.2d 851; Dempsey v. Horton, 84 S.W.2d 623; Stolovey v. Fleming, 8 S.W.2d 834; Collins v. Beckmann, 79 S.W.2d 1054; Oliver v. Morgan, 73 S.W.2d 993. (3) The court did not err in excluding testimony offered on behalf of the plaintiff with respect to payment of the hospital bill. Riner v. Reik, 57 S.W.2d 725.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

Laura J. Blunk, the appellant, filed suit in the Circuit Court of Jackson County, against the respondent, to recover $ 20,000 in damages for personal injuries sustained by her on April 8, 1933, when she was struck by respondent's car. A trial resulted in a verdict for the defendant and plaintiff appealed.

The collision occurred near the south line of the intersection of Thirty-first and Main streets in Kansas City, Missouri. The defendant was driving his car north on Main Street, and plaintiff was walking across this street from east to west. When plaintiff reached the northbound car tracks she was struck by the car and sustained, among other injuries, a broken leg and wrist.

Te case was submitted to the jury on primary negligence and also the humanitarian doctrine. Plaintiff introduced evidence that the stop, or red lights, at the time of the collision, were against north and southbound traffic. The defendant introduced substantial evidence to the contrary, that is, that the red lights were against east and westbound traffic. This made a submissible case on primary negligence. On the humanitarian theory of the case plaintiff introduced evidence that she was hurrying across the street looking west; that when she reached a point near the center of the northbound car tracks she was struck by the defendant's car; that defendant could have seen her in time to have averted the injury. The evidence showed, beyond doubt, that the defendant was driving his car at a speed of not more than twelve or fifteen miles per hour, and that it could have been stopped within a distance of about ten or fifteen feet. The defendant did stop his car within ten feet or less after the collision. Defendant testified that as he approached the intersection he noticed a number of people in and about the safety zone; that he sounded his horn and some of the people, who were attempting to cross the street, stopped. Defendant further stated he did not see plaintiff until he was within a few feet of her; that she was north of the safety zone and north of the other people. Defendant was driving north with the right wheels of his car between the rails of the northbound street car track. It was defendant's theory that plaintiff suddenly stepped into the path of his car and that it was impossible for him to have discovered plaintiff in a position of peril in time to have averted striking her. The above is a sufficient statement of the facts, since the only questions briefed pertain to the correctness of two instructions given at defendant's request -- the admissibility of certain evidence and the qualification of one of the jurors.

Appellant asserts in her brief that the court erred in giving, at defendant's request, Instruction (G). This instruction in substance informed the jury that if defendant did not see and by the exercise of the highest degree of care could not have seen the plaintiff, and could not, with safety to himself and others, have stopped or swerved his car, or given warning and thereby avoided the collision, then the defendant could not be charged with negligence under the humanitarian doctrine. Appellant in her brief asserts that the instruction hypothesized two separate and distinct facts, connected only by the conjunction "and," neither of which facts was supported by the evidence. Appellant also asserts that the instruction was a misstatement of the converse of the humanitarian rule, was a roving commission to the jury and was confusing and misleading. Plaintiff's instruction authorized a verdict for plaintiff if defendant saw, or, by the exercise of the highest degree of care, could have seen plaintiff in a position of peril, or coming into a position of peril, in time thereafter, by the exercise of the highest degree of care, with safety to himself, to have avoided striking plaintiff by stopping or swerving his car, or sounding the horn. It is evident that Instruction (G) was the converse of plaintiff's instruction, except that the instruction did not use the phrase "in time thereafter." While that exact phrase need not be used, an instruction of this nature should not be so worded as to exclude that element. It was very material in this case as to when the peril arose and when the defendant, under the humanitarian doctrine, should have discovered the peril. If the defendant could have discovered plaintiff in peril in time thereafter to have averted the injury, with safety to himself and others, then the defendant was bound to do so. Appellant further asserts that the defendant admitted he saw plaintiff when she was about five feet from his car; that there was no evidence that he could not have seen her long before that time. Defendant did say he saw plaintiff when she was a few feet from his car, but it could be reasonably inferred that it was too late then to stop the car in time to avert the collision. Defendant stated that a street car was upon the southbound track so that he could not swerve to the west. It was, therefore, a question for the jury to decide. Defendant testified that there was "quite a crowd of people" in the safety zone and that plaintiff was struck north of the zone. We need not decide whether this was sufficient evidence to justify an inference that defendant could not have seen plaintiff in time to have avoided the injury. The burden of proof was upon plaintiff to affirmatively show that the defendant saw, or could have seen plaintiff. A jury could have found this issue...