Bona v. Luehrman

Decision Date06 June 1922
Docket NumberNo. 17213.,17213.
PartiesBONA v. LUEHRMAN.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Joseph D. Bona against Alfred D. Luehrman. Prom judgment for plaintiff, defendant appeals. Affirmed.

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

Eagleton & Habenicht, of St. Louis, for respondent.

BECKER, J.

Plaintiff recovered a judgment in the sum of $2,000 against the defendant for personal injuries, and the defendant appeals.

Plaintiff's petition alleges he was struck and injured by an automobile owned and operated by the defendant, and contains several assigments of negligence. Plaintiff, however, submitted his case to the jury upon the humanitarian doctrine alone.

The answer was a general denial, coupled with a plea of contributory negligence, which alleged that whatever injuries, if any, were sustained by plaintiff were the result of his own negligence, which directly contributed to cause the same, in that plaintiff walked into the path of the defendant's approaching automobile, although plaintiff knew, or by the exercise of ordinary care should have known, that he could not do so with safety to himself. The reply was conventional.

Plaintiff testified that on the 29th of December, 1919, shortly after 6 o'clock p. m., at a time when it was already dark, he attempted to cross from the north to the south side of Sidney street in the block immediately west of where Minnesota avenue and Sidney street intersect, in the city of St. Louis; that in about the middle of said block on Sidney street there is an alley which runs north and south, and intersects said street; that at the northwest corner thereof there is a lamp post, the gas lamp of which was burning at the time; that plaintiff's home was next to the alley on Sidney street, on the south side of said street in said block; that, when the plaintiff had walked up Sidney street to the lamp post at the corner of the alley, he started to cross the street from the north sidewalk, and before leaving the curbing he looked to the east and to the west; that he saw the defendant's automobile west bound about 140 to 150 feet east of the point where he was starting to cross the street. Plaintiff continued to cross Sidney street until he had gotten 12 or 14 feet out into the street, when he saw a wagon coming down Sidney street east bound. Not wishing to hazard the chance of crossing in front of the wagon plaintiff stopped, looked east, and saw the defendant's automobile then some 40 or 50 feet east of him, coming directly toward him, and, in the belief that there was sufficient space between himself and the automobile to permit him to get back to the north curb, he turned around and retraced his steps, but before he reached the curb he was struck by defendant's automobile.

As to light conditions existing at the point at which he was struck, the plaintiff testified that a pedestrian could be seen at that place, under the circumstances obtaining at the time, for at least half a block. Plaintiff placed the defendant on the stand, and in his direct testimony defendant said he did not see the plaintiff until he struck him; that he was driving his machine west along Sidney street three feet from the north curb, at the rate of about 12 to 15 miles per hour, at which speed he could stop his car in 14 to 17 feet; that his headlights were burning at the time, and that at the spot at which his machine struck the plaintiff, under the conditions then existing, he could see ahead of him 14 to 17 feet.

On cross-examination defendant testified that he saw the plaintiff some 2 or 3 feet in front of his machine; that plaintiff was walking to the south; that as soon as he saw plaintiff he attempted to swerve his machine in a southwest direction in his endeavor to avoid striking the plaintiff, but despite that fact he struck plaintiff on the plaintiff's left side, and knocked him down; that when he brought his machine to a stop plaintiff was lying in the street to the right of his machine, and some 2 or 3 feet behind the rear end of his machine.

A police officer testified for plaintiff that he arrived on the scene immediately after the accident and found plaintiff lying some 12 to 14 feet west of the alley.

The defendant introduced Mildred Brewe as a witness, who testified that she was in the automobile with the defendant on the occasion in question, and corroborated each of the statements of the defendant.

The defendant requested an instruction in the nature of a demurrer to the evidence at the close of plaintiff's case and again at the close of the entire case, each of which was overruled. The action of the court in this respect is here urged as constituting prejudicial error.

The appellant takes the position that, since plaintiff's petition failed to allege that plaintiff was oblivious to his peril, or had unwittingly gotten himself into a position of peril from which he could not extricate himself, there was not sufficient pleading upon which to base a recovery under the humanitarian or last clear chance doctrine.

A long and unbroken line of cases in this state has established the rule that there may be a recovery under the humanitarian doctrine based upon a petition merely charging general negligence. Frankel v. Hudson, 271 Mo. 405, 196 S. W. 1121; Fleming v. Ry. Co., 263 Mo. loc. cit. 188, 172 S. W. 355; Kellny v. Ry. Co., 101 Mo. 67, 13 S. W. 806, 8 L. R. A. 783; Hilz v. Ry. Co., 101 Mo. 36, 13 S. W. 016; Handlon v. Ry. Co., 104 Mo. loc. cit. 301, 16 S. W. 233; Albright v. Joplin Oil Co., 206 Mo. App. loc. cit. 421, 229 S. W. 820.

As has been said in Miller v. Kansas City Rys. Co. (Mo. Sup.) 233 S. W. 1066, loc. cit. 1067:

"A general allegation of negligence is sufficient to let in evidence of any particular negligence coining within the content of the general statement. Degonia v. Railroad, 224 Mo. loc. cit. 589, 123 S. W. 807; Bergfeld v. Kansas City Rys. Co., 227 S. W. loc. cit. 109, and cases cited. On authority of the Bergfeld Case an allegation that the servants of defendant negligently operated the street car so as to cause it to collide with the truck ordinarily would permit evidence of any particular negligent operation of the car. It has been held that such allegation would let in evidence under the humanitarian rule."

In addition to this, an examination of cases involving appeals from judgments rendered in cases submitted upon the humanitarian doctrine decided by our Supreme Court discloses many in which plaintiff's petition, as in the instant case, did not contain allegations as to plaintiff's obliviousness or inability to extricate himself from his position of peril, and yet in none of the opinions do we find any criticism.of the petition with respect to the sufficiency of the allegations predicating a recovery upon the humanitarian doctrine. See Ellis v. St. Ry. Co., 234 Mo. 657, 138 S. W. 23; Pope v. Ry. Co., 242 Mo. 232, 146 S. W. 790; Hill v. Kansas City Rys. Co. (Mo. Sup.) 233 S. W. 205; Murphy v. Ry. Co., 228 Mo. 56, 128 S. W. 481; Taylor v. St. Ry. Co., 256 Mo. 191, 165 S. W. 327.

In light of this situation we rule that the allegation in plaintiff's petition "that defendant, his agents, servants, and employés negligently and carelessly failed to stop or attempt to stop their said automobile when they knew, or by the exercise of due care on their part could have known, of the danger of the automobile striking and injuring plaintiff in time, by the exercise of due care on their part, to have stopped said automobile and avoided striking and injuring plaintiff," is sufficient allegation to let in evidence under the humanitarian rule.

In considering appellant's contention that plaintiff's main instruction, which covered the entire case and directed a verdict, is erroneous in that it failed to require the jury to find that plaintiff was oblivious of his danger in order to authorize a recovery under the humanitarian doctrine, it is well to remember that in the instant case plaintiff was aware of the approach of the defendant's automobile from the time he left the curb until the time he was struck. According to plaintiff's own testimony, after he had gotten out into the street some 12 or 14 feet, and came to a stop because of a wagon approaching from the west on Sidney street, he looked east and saw defendant's automobile bearing down upon him, then some 40 feet distant from him, and, realizing that he was then in a position of danger, he began to retrace his steps to the north curb to extricate himself from his position of peril. And, according to defendant's testimony, he did not see plaintiff until his machine was within two or three feet of him, and, if defendant's version of the manner in which plaintiff met with his injuries is to be believed, them whether the plaintiff was or was not oblivious of his danger or whether the defendant realized that plaintiff was or was not oblivious to his danger could not possibly have made any difference in the case. Concededly, if the defendant's theory of the case is correct then at the time he saw the plaintiff he was already so close at hand...

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    ......Hollensbe v. Pevely Dairy Co., 38 S.W. (2d) 273; Fink v. United Rys., 219 S.W. 679; Bona v. Luehrman, 243 S.W. 386. (3) No prejudicial error was committed in the admission of medical testimony, claimed by appellant to have been ......
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