Brockman v. Robinson

• Citation: 48 S.W.2d 128
• Decision Date: 01 February 1932
• Docket Number: No. 17412.,17412.
• Court: Missouri Court of Appeals
• Parties: BROCKMAN v. ROBINSON et al.

48 S.W.2d 128

BROCKMAN v. ROBINSON et al.

No. 17412.

Kansas City Court of Appeals. Missouri.

February 1, 1932.

Rehearing Denied February 29, 1932.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be officially published."

Action by Lambert T. Brockman against A. Robinson and another, doing business as A. Robinson & Son Commission Company. From the judgment for plaintiff, defendants appeal.

Affirmed.

Jerome Walsh and Walsh & Parker, all of Kansas City, for appellants.

Harris & Koontz, of Kansas City, for respondent.

ARNOLD, J.

This is an action to recover damages for personal injuries. The cause was tried to the court and jury, resulting in a judgment for plaintiff in the sum of $1,500. A motion for a new trial was overruled, and defendants have appealed.

Plaintiff's petition alleges, in substance, that defendants were engaged in business as copartners, and as such, on December 19, 1928, owned and operated a certain truck upon the streets of Kansas City, Mo.; that on said day plaintiff was driving a truck at or near the intersection of Twenty-Fourth street and Brooklyn avenue, in Kansas City, Mo., both public streets of said city; that at said time and place said truck of defendants, while being driven by one of their employees in the scope of his employment, was negligently caused to collide with the plaintiff's truck, injuring plaintiff. A charge of general negligence is made, and, in addition, a charge of negligence under the humanitarian doctrine, in that the defendants "and each of them, their agents, servants and employees, saw, or by the exercise of the highest degree of care that a very careful person would have used in like circumstances, would have seen plaintiff and the automobile truck which he was driving in a position of imminent peril, approaching, moving toward and across said streets, at said time and place, toward and over which said White automobile truck of said defendants, and each of them was being driven, in time by the exercise of the highest degree of care to have avoided said collision by stopping said White automobile truck, or by slackening the speed thereof, or by turning the same aside; but the defendants, and each of them, their agents, servants and employees negligently, carelessly and unskilfully failed and omitted so to do, with the resulting and consequential injuries to the plaintiff."

The answer, in so far as material to the points urged upon this appeal, consists of a plea that plaintiff's own negligence caused, or directly contributed to, his injuries, if any. The reply was a general denial.

The defendants introduced no testimony. At the close of plaintiff's case, they requested a demurrer to the evidence, which was overruled. The facts of record disclose but one basis of liability, and plaintiff submitted his case solely under the humanitarian rule. Plaintiff testified he was driving east on Twenty-Fourth street; when he arrived at the intersection of that street with Brooklyn avenue, he saw defendants' truck about 200 feet south of the place of collision, running at a rapid rate of speed; believing he had time to cross the intersection and proceed in the direction in which he was moving, he attempted to do so. When he reached a point in his line of travel east of the center of said Brooklyn avenue, his truck was struck at the rear, and thrown, or caused to run, into a pole at the northeast corner, where it was practically demolished.

There was evidence that defendants' truck, just prior to the collision, was running at a speed of 30 to 45 miles an hour. The driver of defendants' truck made no attempt to swerve or change its course, and its speed was not decreased from the time it was first observed by witnesses until the impact. It also appears there were no obstructions, vehicles, or traffic of any kind interfering with the vision of defendants' driver, and nothing to prevent him from swerving the truck so as to go behind the truck plaintiff was driving. The day was clear and bright, the streets dry, and the grade was practically level. Under the conditions at hand, it was shown the truck could have been stopped within 40 to 60 feet, without injury to any one. In this state of the record, defendants contend, because the evidence shows plaintiff continued his course when he saw defendants' truck approaching, under the facts attendant upon its operation of which he testified, he cannot invoke the humanitarian rule; that the court erred in overruling their request for a peremptory instruction in the nature of a demurrer to the evidence, and in submitting the case upon a last clear chance instruction.

A clear pronouncement most frequently cited, made upon a consideration of the humanitarian rule as applied in this state, is found in Banks v. Morris & Co., 302 Mo. 254, 266, 257 S. W. 482, 484, where it is said: "The doctrine from which the rule has been evolved is something more than an exception to the law of contributory negligence. It `proceeds upon the precepts of humanity and of natural justice to the end that every person shall exercise ordinary care for the preservation of another after seeing him in peril or about to become imperiled, when such injury may be averted without injury to others.' Day v. Railways, 140 Mo. App. 461, 467, 120 S. W. 134, 136. Under this doctrine `the position of peril' is one of the basic facts of liability, it might be denominated the chief one. State v. Trimble 253 S. W. 1014, 1019. It is of no consequence what brings about or continues the situation of peril. It may be through the obliviousness of the one imperiled, or through his inability to extricate himself from his environment, or through his efforts to rescue another, or through his sheer hardihood or recklessness. But regardless of what occasions his peril, the law out of its extreme regard for human life makes it the duty of another who sees him in peril to exercise ordinary care to prevent injury or death. Murphy v. Railroad, 228 Mo. 56, 128 S. W. 481; Morgan v. Railroad, 159 Mo. 262, 60 S. W. 195; Hanlon v. Railroad, 104 Mo. 388, 16 S. W. 233. The constitutive facts of a cause of action under the humanitarian rule, stated in their simplest terms, without any of the refinements, limitations or exceptions which might arise on a particular state of facts, are contained in this formula: `(1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof plaintiff was injured.' Evidence tending to prove these facts makes a prima...