Buehler v. Festus Mercantile Co.

• Decision Date: 28 September 1938
• Docket Number: 34617
• Citation: 119 S.W.2d 961,343 Mo. 139
• Parties: Mildred Buehler v. Festus Mercantile Company, a Corporation, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 961

343 Mo. 139

Mildred Buehler v. Festus Mercantile Company, a Corporation, Appellant

No. 34617

Supreme Court of Missouri

September 28, 1938

Appeal from Circuit Court of City of St. Louis; Hon. John A Witthaus, Judge.

Reversed and remanded.

Wm H. Allen for appellant.

(1) The trial court erred in refusing to give and read to the jury the peremptory instruction, in the nature of a demurrer to the evidence, requested by appellant, defendant below, at the close of all the evidence in the case. (a) Testimony that is plainly contrary to established physical facts or physical laws or to facts of common knowledge, and on that account inherently impossible, will not be accorded any probative force or effect, but will be rejected in determining whether a prima facie case was made. State ex rel. K. C. Ry. Co v. Shain, 105 S.W.2d 919; Dunn v. Alton Ry. Co., 104 S.W.2d 311; Carner v. St. L.-S. F. Ry. Co., 338 Mo. 257; Alexander v. St. L.-S. F. Ry. Co., 327 Mo. 1020; Roseman v. United Rys. Co., 251 S.W. 106; Ziegelmeier v. E. St. L. & Sub. Ry. Co., 330 Mo. 1019; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721; Sexton v. Met. St. Ry. Co., 245 Mo. 273; Hook v. Mo. Pac. Ry. Co., 162 Mo. 581. (b) Having specifically alleged that her injuries were proximately caused by the striking of the coupe by the truck, and the specific negligence whereby it is asserted that this was brought about, plaintiff is bound thereby and cannot recover upon any other theory. Beave v. Transit Co., 212 Mo. 331; Bonnares v. Lead Belt Ry. Co., 309 Mo. 65; Roscoe v. Met. St. Ry. Co., 202 Mo. 578. (c) And since, in view of the undisputed physical facts in evidence, the testimony in behalf of plaintiff as to how the casualty occurred cannot be true, plaintiff is left without any basis or theory of recovery supported by any substantial evidence, and her case must consequently fail. Roseman v. United Rys. Co., 251 S.W. 106. (2) Plaintiff was not entitled to go to the jury upon the charge that defendant's truck was operated at a high and excessive rate of speed, or upon any other charge of primary negligence, both for the reason shown above and for the further reason that the evidence was such as to convict plaintiff of negligence as a matter of law. Though an occupant of the coupe and not the driver thereof, plaintiff was required to exercise such care for her own safety as an ordinarily prudent person would exercise under the circumstances. Her own testimony shows that she failed to exercise the slightest care; that she negligently abandoned the exercise of her own faculties altogether. Though she sat beside Mrs. Colin, on the side of the coupe from which defendant's truck was approaching, with her view unobstructed, and though Mill Street was a main thoroughfare, she did not look when entering that street, for she did not see the truck at all. She supinely permitted herself to be negligently driven in front of the oncoming truck when both the danger and Mrs. Colin's negligence were or should have been obvious in time for warning or protest by her. This was negligence proximately contributing to produce her injury. Boland v. St. L.-S. F. Ry. Co., 284 S.W. 144; Chawkley v. Wabash Ry. Co., 317 Mo. 804; Sullivan v. A., T. & S. F. Railroad Co., 317 Mo. 1009; Friedman v. United Rys. Co., 293 Mo. 243; Leapard v. Kansas City Rys. Co., 214 S.W. 268; Ferguson v. Lang, 268 P. 117; Burton v. Pryor, 198 S.W. 1117; Fechley v. Springfield Traction Co., 119 Mo.App. 371; Schaff v. Nelson, 285 S.W. 1036; Smith v. Wells, 326 Mo. 548; Bradley v. Mo. Pac. Ry. Co., 288 F. 484; Oppenheim v. Barkin, 262 Mass. 281, 159 N.E. 628, 61 A. L. R. 1228; Shultz v. Old Colony St. Ry. Co., 193 Mass. 309, 79 N.E. 873, 8 L. R. A. (N. S.) 597; Smith v. Ozark Water Mill Co., 215 Mo.App. 129; Berrafato v. Exner, 216 N.W. 165; 2 Berry, Law of Automobiles (6 Ed.), pp. 523-534, secs. 650-656; 5 Huddy, Cyclopedia of Automobile Law (9 Ed.), pp. 235-251, secs. 135-138. (3) Plaintiff did not make a case for the jury under the humanitarian rule. (a) Under the testimony adduced by plaintiff and her theory of the case, she did not come into a position of imminent, discoverable peril, within the contemplation of the humanitarian rule, until the coupe, of which she was an occupant, after having been brought nearly to a stop at or about the east line of Mill Street, had been started forward by Mrs. Colin at an accelerated speed and was being driven across the street as rapidly as possible. And the evidence, considered in the light of the undisputed physical facts and physical laws, was not such as to warrant a finding that after the peril so arose the driver of defendant's truck was negligent in failing to avert the casualty by stopping the truck, slackening its speed, swerving it or otherwise. Ridge v. Jones, 335 Mo. 219; Phillips v. Henson, 326 Mo. 282; Lamoreux v. Ry. Co., 337 Mo. 1028; State ex rel. Fleming v. Bland, 322 Mo. 565; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 957; Beale v. St. Louis Ry. Co., 256 S.W. 733; State ex rel. Frisco Ry. Co. v. Reynolds, 289 Mo. 491. (b) Defendant's driver could not have discovered plaintiff in a position of imminent peril before the coupe was being driven across the street at such accelerated speed, for until that time she was not in such peril. Lackey v. United Rys. Co., 288 Mo. 144. (c) No duty arises under the humanitarian doctrine until a situation of imminent peril has come into existence; and no recovery may be had thereunder unless there is substantial evidence tending to show that, after such peril arose, the defendant or his agent knew, or ought to have known, of the existence of such peril and could thereafter have averted the threatened injury, by the exercise of due care, with the means at his command. Banks v. Morris & Co., 302 Mo. 267; Ziegelmeier v. East St. L. & Sub. Ry. Co., 330 Mo. 1018; Ridge v. Jones, 335 Mo. 219; Phillips v. Henson, 326 Mo. 282; Lamoreux v. Ry. Co., 337 Mo. 1028; State ex rel. Vugamott v. Trimble, 300 Mo. 109; State ex rel. Fleming v. Bland, 322 Mo. 572; Perkins v. Terminal Ry. Assn., 102 S.W.2d 915. (d) And the term "imminent peril," within the contemplation of the humanitarian rule, does not mean remote, uncertain or contingent peril, but peril "immediately impending." Ridge v. Jones, 335 Mo. 219; Ziegelmeier v. E. St. L. & Sub. Ry. Co., 330 Mo. 1018; State ex rel. Vulgamott v. Trimble, 300 Mo. 109; Banks v. Morris & Co., 302 Mo. 267. (4) Plaintiff could not possibly have been approaching a position of imminent peril and in a position of imminent peril, at one and the same time. And the use of the vague expression, "approaching and in the aforesaid position of imminent peril," rendered the instruction highly duplicitous, misleading and confusing, and operated to give the jury a roving commission to speculate and guess as to what the duty of defendant's driver was under the humanitarian rule. Perkins v. Terminal Ry. Assn., 102 S.W.2d 935; Lakin v. Chicago, R. I. & P. Ry. Co., 229 Mo.App. 461. (5) Plaintiff's counsel having been permitted at the opening of the trial to question the jurors on their voir dire as to whether any of them did business with or had a policy of insurance with "the Aetna Casualty Insurance Company, which writes liability on automobiles and trucks," the trial court erred in refusing to discharge the jury and declare a mistrial, as requested by appellant, because of the prejudicial remarks of plaintiff's counsel in argument to the jury as follows: "We don't want a small verdict in this case; we want a large verdict, gentlemen. This suit is for $ 50,000, and that is the sum of money that this woman is entitled to recover, if she is entitled to recover a dime. Don't worry about who we will collect it from. You give this woman a substantial verdict for the injuries she has sustained and leave it to the lawyers in this case to collect it for her." Whitman v. Carver, 337 Mo. 1247; Olian v. Olian, 332 Mo. 699; O'Hara v. Lamb Const. Co., 197 S.W. 164; Rytersky v. O'Brine, 70 S.W.2d 541; Robinson v. McVay, 44 S.W.2d 240; Crapson v. United Chautauqua Co., 27 S.W.2d 722; Hannah v. Butts, 330 Mo. 876; Trent v. Lechtman Ptg. Co., 141 Mo.App. 437; Gore v. Brockman, 138 Mo.App. 231.

Eagleton, Waechter, Yost, Elam & Clark, Frank E. Atwood, Walter Wehrle and Ennis & Ennis for respondent.

(1) Plaintiff was entitled to submit to the jury the issue of primary negligence based upon excessive and dangerous speed of the truck, she not being guilty of any contributory negligence, and the negligence, if any, of the driver of the Ford coupe not being imputed to her. It was for the jury to say whether plaintiff did, or did not, do those things which an ordinarily prudent person would have done under the same or similar circumstances while riding as a passenger in an automobile. Boland v. St. L.-S. F. Ry. Co., 284 S.W 141; Smith v. St. L.-S. F. Ry. Co., 321 Mo. 105, 9 S.W.2d 939; Peppers v. St. L.-S. F. Ry. Co., 316 Mo. 1104, 295 S.W. 757; Thompson v. St. L.-S. F. Ry. Co., 334 Mo. 958, 69 S.W.2d 936; Rosenstein v. Lewis Automobile Co., 34 S.W.2d 1023; Schweig v. Wells, 16 S.W.2d 684; Setzer v. Ulrich, 90 S.W.2d 154; 45 C. J., p. 1031, sec. 588; Corn v. Kansas City, C. C. & St. J. Ry. Co., 228 S.W. 78; Titword v. Kuehn, 18 S.W.2d 127; Pettitt v. Kansas City, 267 S.W. 954; Applebee v. Ross, 48 S.W.2d 900; Pence v. Kansas City Laundry Co., 59 S.W.2d 633; Parsons v. Himmelsbach, 68 S.W.2d 841; Gregory v. Jenkins, 43 S.W.2d 877; Miller v. Union Pac. Ry. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285. (a) Plaintiff made a submissible case for the jury under the humanitarian theory, based upon a failure to slacken the speed of the truck, or failure to swerve the truck, or both. The evidence conclusively established that plaintiff's position of...