Brown v. Callicotte
| Decision Date | 17 May 1934 |
| Docket Number | 32189 |
| Citation | 73 S.W.2d 190 |
| Parties | BROWN v. CALLICOTTE et al |
| Court | Missouri Supreme Court |
Appellants' Motion for Rehearing Overruled June 19, 1934.
McVey Randolph, Smithson & Garrity and Battle McCardle, all of Kansas City, for appellants.
Cowgill & Popham, C. R. Leslie, and John F. Cook, all of Kansas City for respond ent.
WESTHUES and FITZSIMMONS, CC., concur.
COOLEY, Commissioner.
Action for damages for personal injuries alleged to have been caused by the negligence of defendant Callicotte, engaged at the time in the service of his codefendant, a corporation. There were two counts in plaintiff's petition -- the first charging both primary negligence and negligence under the humanitarian rule; the second seeking damages for alleged false arrest. The jury found for plaintiff against both defendants on the first count in the sum of $ 8,000 and for the defendants on the second count. Plaintiff did not appeal from the adverse judgment on the second count. The case is here on defendants' joint appeal from the judgment against them on the first count. The case was submitted to the jury on both primary negligence and negligence under the humanitarian rule. Appellants insist that the evidence did not justify submission of the case on the latter theory and also charge other errors in the instructions. Plaintiff's evidence was to the following effect:
Plaintiff was an itinerant junk peddler, going about the streets of Kansas City in a small wagon drawn by an old horse, gathering waste paper, scrap iron, and other junk which he sold. Defendant Callicotte was an employee of his codefendant, Southwestern Bell Telephone Company, and it is conceded that at the time of the accident here in question he was engaged in the performance of his duties as servant of said company. At the time of the accident, about 2 p. m., October 2, 1929, plaintiff, with his father on the seat beside him, was driving eastward on Twenty-First street toward Olive street, a north and south street which intersects Twenty-First street at right angles. Twenty-First street is paved, and it is agreed that in that block it is 26 feet 3 inches wide between curbs. At the time in question a baseball game, a game of the 'Little World Series,' was in progress or about to begin in a nearby ball park, and both sides of Twenty-First street between Olive and the street next west of it, Park avenue, were lined with automobiles parked next to the curbs. From Park avenue to Olive street Twenty-First street slopes downward at about a 15 per cent. grade. When plaintiff, driving eastward, was some 35 feet or a little more west of the intersection of Twenty-first and Olive streets, defendant Callicotte, driving a Pontiac coupe automobile, turned westward in the intersection, having come from the north on Olive street, and drove west in twenty-First street, colliding with plaintiff's wagon. Plaintiff estimated the distance of the point of collision from the west side of the intersection at about 30 feet. An eyewitness, Jahnke, testifying for plaintiff, estimated it at about 35 feet. Plaintiff saw Callicotte as the latter made the turn westward in the intersection and approached him in Twenty-First street. There was nothing to prevent Callicotte from seeing plaintiff after he made the turn. Plaintiff and Jahnke testified that at all times plaintiff's wagon was wholly on the south, that is, on plaintiff's right, side of the middle line of the street. Said middle line was not marked. Plaintiff testified that Callicotte made a 'wide turn,' carrying his automobile to the south of the middle of Twenty-First street, and that, as he approached plaintiff and up to the point of collision, the left wheels of the automobile were somewhat to the south (Callicotte's wrong side) of the middle of the street. Plaintiff testified that he was driving slowly at a walk, and that he had put on and kept on his brakes; that, as Callicotte made the turn and drove westward in Twenty-First street, he (Collicotte) was driving 20 or 25 miles an hour. Jahnke estimated Callicotte's speed at 15 to 17 miles an hour. He also said that plaintiff was driving slowly. The left front fender of Callicotte's car caught the hub of the left front wheel of plaintiff's wagon. The hub projected a few inches from the spokes of the wheel. Plaintiff's evidence tended to prove that there was sufficient space between his wagon and the line of parked cars along the north curb to have permitted Callicotte to swerve to the right, north, and to have passed the wagon without colliding with it. It was a clear day, and the street was dry. Plaintiff, when asked how far his wagon was from the cars parked along the south curb when the collision occurred, showed with his hands his estimate of the distance, about 14 inches. Jahnke estimated that at the moment of the collision the left fender of Callicotte's car was at least a foot south of the middle line of the street. The axle of plaintiff's wagon was slightly bent by the impact, and plaintiff was thrown violently against the brake handle and the back of the seat. No point is made that the verdict is excessive if plaintiff's injuries were of the nature and extent which his evidence tends to show, a jury question; hence it is needless to summarize the evidence on that subject.
Callicotte, testifying for himself and his codefendant, said the collision occurred west of the alley running north and south midway between Park and Olive streets; that, when he was about halfway from Olive street to the alley, he saw plaintiff turn into Twenty-First street from Park avenue and met him just west of the alley; that plaintiff's horse was apparently unable to hold back the wagon and was going from side to side, 'you could not tell where he was going'; that the horse was coming down the hill 'in about a half-way lope and a fall,' zigzagging in his efforts to hold back the wagon, the brakes of which were not used by plaintiff. On cross-examination he said 'the horse's hind feet were walking' and his front feet probably running, 'about the same as any other half dead horse, trying to hold a load back'; that, noticing the erratic approach of the horse, he stopped his car 'dead still' when plaintiff was yet 30 or 40 feet from him and so remained until plaintiff's wagon collided with his car; that he was at all times on his own side of the street north of the middle line thereof and as close as he could drive to the line of cars parked next to the north curb. He estimated that there was as much as a foot of space between his left fender and the middle line of the street.
The court gave for plaintiff an instruction, No. 1, submitting primary negligence, and another, No. 2, relating to the burden of proving contributory negligence, which was pleaded in defendant's answer, as a defense to the charge of primary negligence. Of those instructions no complaint is made here. Plaintiff's instruction No. 3 submitted negligence under the humanitarian rule.
I. Appellants' first contention is that the court erred in giving plaintiff's instruction No. 3 because there was no evidence to justify submission of the case on that theory. As there are other complaints of this instruction, we set it out in full, italicizing the portions of which appellants make specific complaint and which they have similarly emphasized in copying the instruction in their brief.
'The court further instructs the jury as to Count I of the petition relating to alleged personal injuries, if you believe from the evidence that as said automobile approached and reached said wagon, if so, at the time and place referred to in the evidence plaintiff was in a position of imminent danger and peril from the approach and movements of said automobile, and that Callicotte saw, or by using the highest degree of care, could have seen and observed plaintiff in said position of danger, if any, in time thereafter by the use of the means at hand and with safety to said automobile and its driver and by the use of the highest degree of care to have steered said automobile to the right or north and changed the course thereof and thereby have prevented it striking said wagon, if it did, and that Callicotte failed to use the highest degree of care so to do and was thereby guilty of negligence, if you so find, and that as a direct result thereof said automobile collided with said wagon and plaintiff was thereby injuned, if you so find, then your verdict must be for plaintiff and against defendants under this instruction as to said first count of the petition, and this would be true even though you should also believe that plaintiff did not use ordinary care for his own safety and was negligent in getting into said position of peril, if any, at said time and place.'
Appellants' contention that plaintiff's evidence does not make a case under the humanitarian rule cannot be allowed. The requisites of a case under that rule have been so often stated that they need not be here repeated. See Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482.
Appellants argue that plaintiff was not in a position of imminent peril while proceeding east on his own side of the street; that imminent peril does not arise out of vehicular traffic where there is space to guide the vehicles. They argue further that a remote or contingent danger does not invoke the humanitarian rule, citing cases so holding, and say that plaintiff was not in a position of peril unless the danger of a collision was certain, that 'the peril did not begin until it was obvious that the car would not clear the wagon and that plaintiff would not move over,' and that the evidence shows that Callicotte could have done nothing to avert the collision after the peril thus arose. It seems to us clear...
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