Bowman v. Standard Oil Co. of Indiana

• Decision Date: 25 March 1943
• Docket Number: 38266
• Parties: Lula Bowman, Respondent, v. Standard Oil Company of Indiana, a Corporation, and William Stumpf, Appellants
• Court: Missouri Supreme Court

169 S.W.2d 384

350 Mo. 958

Lula Bowman, Respondent, v. Standard Oil Company of Indiana, a Corporation, and William Stumpf, Appellants

No. 38266

Supreme Court of Missouri

March 25, 1943

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed (subject to remittitur).

Moser Marsalek & Dearing for appellants.

(1) The court erred in overruling the defendant's demurrer to the evidence. (a) Upon demurrer to the evidence the court will not draw forced or violent inferences in favor of plaintiff but only such inferences as are reasonable. Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 68. (b) To warrant the submission of the case under the humanitarian rule the burden was upon plaintiff to show by substantial evidence that the Nash car in which he was riding was in a position of imminent peril, that defendant Stumpf knew or could have discovered that the car was in such position of peril, and that he thereafter had a reasonably sufficient time in which it was reasonably possible for him to act to prevent the collision. The evidence fails to show these facts. The showing of a mere possibility that the accident might have been avoided is not sufficient to authorize a recovery. Markowitz v. Metropolitan St. Ry. Co., 186 Mo. 350, 85 S.W. 351; Lackey v. United Rys. Co., 288 Mo. 120, 231 S.W. 956; Goodson v. Schwandt, 318 Mo. 667, 300 S.W. 795; Gardner v. Turk, 123 S.W.2d 158; Ziglemeyer v. East St. Louis & Suburban R. Co., 51 S.W.2d 1027; Lotta v. K. C. Public Serv. Co., 117 S.W.2d 296; Rafferty v. Levy, 153 S.W.2d 765; Burton v. Joyce, 22 S.W.2d 890; Sapp v. Carman Co., 95 S.W.2d 658; Bauer v. Wood, 154 S.W.2d 356; Freid v. Mason, 137 S.W.2d 673. (c) The defendant Stumpf had the right to presume, until the contrary appeared, that the plaintiff's husband would stop his automobile before reaching a position of peril. Stumpf was not required to act until the other car reached that point. Elkin v. St. Louis Pub. Serv. Co., 355 Mo. 951, 74 S.W.2d 951; Roberts v. Consolidated Paving Material Co., 335 Mo. 6, 70 S.W.2d 543; Hanks v. Anderson-Parks, Inc., 143 S.W.2d 314; Dean v. Morceri, 87 S.W.2d 218. (d) Plaintiff's husband testified that he could have stopped his car within two or three feet after applying the brake. According to this testimony his car did not reach a position of peril until it was within a few feet of the path of the defendant's truck. Shepherd v. Mo. Pac. Ry. Co., 335 Mo. 606, 72 S.W.2d 985; Elkin v. St. Louis Pub. Serv. Co., supra. (2) The court erred in giving plaintiff's Instruction 1. (a) This instruction is erroneous in submitting the case on the theory that defendant Stumpf could have avoided the accident by stopping the truck and sounding a warning after the Bowman car reached a position of imminent peril. There was no substantial evidence upon which to submit the case on this theory. The instruction is based upon surmise, speculation and conjecture. Authorities under Point (1), supra. (b) Plaintiff's Instruction 1 was further erroneous in submitting a failure to warn on defendant's part as negligence, without requiring any finding by the jury that the plaintiff's husband was oblivious to the approach of the truck. Pentecost v. St. L., M. B. T. R. Co., 334 Mo. 572, 66 S.W.2d 533; Lotta v. K. C. Public Serv. Co., supra; Phillips v. St. L.-S. F. R. Co., 337 Mo. 1068, 87 S.W.2d 1035; State ex rel. v. Trimble, 331 Mo. 1, 52 S.W.2d 864. It is a well-settled principle of the law of instructions that an instruction authorizing a finding for either party is erroneous unless it requires the jury to find all facts necessary to warrant such finding. This the aforementioned instruction fails to do. Stanich v. Western Union Tel. Co., 153 S.W.2d 54; State ex rel. v. Allen, 344 Mo. 66, 124 S.W.2d 1080. (c) The instruction gives the jury a roving commission in authorizing them to find that the Nash car was in a position of imminent peril at any time prior to the collision. The instruction in this respect erroneously ignores the issue with respect to the traffic signal. Roberts v. Consolidated Paving Material Co., supra; Hanks v. Anderson-Parks, Inc., supra; Dean v. Morceri, supra. (d) The concluding clause of the instruction is misleading and erroneous in authorizing the jury to ignore completely the negligent conduct of plaintiff's husband in getting his car into a position of peril. If the collision was solely caused by Bowman's negligence in this regard, as there was ample evidence to prove, plaintiff was not entitled to recover under the humanitarian rule. Furthermore, the jury had the right to consider and should have considered Bowman's negligent conduct in determining the point at which defendant Stumpf could have discovered that the Bowman car was in a position of imminent peril. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. (3) The verdict is excessive, even after the remittitur required by the trial court. Morris v. E. I. Du Pont de Nemours & Co., 139 S.W.2d 984; Christiansen v. St. L. Public Serv. Co., 333 Mo. 408, 62 S.W.2d 828; Dorman v. E. St. L. & S. R. Co., 335 Mo. 1082, 75 S.W.2d 854; Lepchenski v. M. & O. R. Co., 332 Mo. 194, 59 S.W.2d 610; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463.

Mark D. Eagleton, James A. Waechter and Donald Gunn for respondent.

(1) Plaintiff made a submissible case under the humanitarian doctrine, upon which doctrine the case was submitted to the jury. Hinds v. Chicago, B. & Q. R. Co., 85 S.W.2d 165; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Perkins v. Terminal Railroad Assn., 340 Mo. 868, 102 S.W.2d 915; Kloeckener v. St. Louis Public Serv. Co., 331 Mo. 396, 53 S.W.2d 1043; Smith v. Kansas City Public Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Schneider v. Terminal Railroad Assn., 341 Mo. 430, 107 S.W.2d 787; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. (2) Plaintiff's Instruction 1 was proper in all respects. (a) The court was warranted in giving this instruction submitting the case to the jury under the humanitarian doctrine. See authorities cited under point (1). (b) The failure to warn under the humanitarian doctrine was submitted in the conjunctive and required the jury to find not only that the defendants failed to warn plaintiff when she became and was in a position of imminent peril of being struck by defendants' automobile truck, but also that the defendants failed to stop said truck after the aforesaid perilous position arose. Oesterle v. Kroger Gro. & Baking Co., 346 Mo. 321, 141 S.W.2d 780; Westenhaver v. St. Louis-S. F. Ry. Co., 340 Mo. 511, 102 S.W.2d 661; Wilday v. M.-K.-T. R. Co., 347 Mo. 275, 147 S.W.2d 431. Obliviousness to peril is an evidentiary fact that need not be pleaded or submitted in the instructions. Perkins v. Terminal Railroad Assn., 340 Mo. 868, 102 S.W.2d 915; Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Kloeckener v. St. Louis Pub. Serv. Co., 331 Mo. 396, 53 S.W.2d 1043; Schneider v. Terminal Railroad Assn., 341 Mo. 430, 107 S.W.2d 787. (c) This instruction which authorized a finding in favor of the plaintiff under the humanitarian doctrine, even though the plaintiff's husband, the driver of the Nash automobile, was guilty of an antecedent act of negligence in creating said perilous position, correctly declared the law. Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233. (3) The amount of plaintiff's damages is not excessive. The evidence showed that plaintiff suffered a severe fracture through the neck of her left femur and an injury to the right shoulder, which causes limitation of the use of said shoulder. The fracture at the time of the trial, almost two years after the injury, was ununited and, according to the evidence, will remain that way, thus requiring the plaintiff to use crutches the rest of her life. Jackman v. St. Louis & H. Ry. Co., 231 S.W. 978; Margulis v. Natl. Enameling & Stamping Co., 324 Mo. 420, 23 S.W.2d 1049; Hillis v. Home Owners Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Christiansen v. St. Louis Pub. Serv. Co., 333 Mo. 408, 62 S.W.2d 828.

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

OPINION

BOHLING

Lula Bowman recovered a judgment for $ 12,500 against the Standard Oil Company of Indiana, a corporation, and William Stumpf for injuries sustained in a highway intersection collision between automobiles. She submitted her action on defendants' negligent failure to avoid the collision by stopping and by warning under the humanitarian doctrine. Defendants appeal and question the submissibility of plaintiff's cause, said humanitarian instruction and the amount of the judgment.

Carter avenue and Prairie avenue are intersecting streets, 35 or 36 feet from curb to curb, in the city of St. Louis, Carter avenue being an east and west street and Prairie avenue being a north and south street. In the center of said intersection is an automatic traffic light signal supported on a standard. The accident occurred about 3:30 p. m. on December 21, 1939, a dry, clear day. Plaintiff was on the front seat of her husband's 1930 Nash sedan, which was being operated east by Mr. Bowman along the center of the south half of Carter avenue. One of the Standard Oil Company's trucks, operated by defendant Stumpf, an employee, in the furtherance of the corporate business, was proceeding north along the east side of Prairie avenue. According to testimony on behalf of plaintiff, the Nash sedan approached said intersection "right around ten miles an hour." When it was 25 or 30 feet west of Prairie, Mr. Bowman saw the Standard oil truck approaching between 25 and 30 miles an hour and 150 to 175 feet south of the intersection. He...