Burke v. Pappas

• Decision Date: 11 April 1927
• Docket Number: 25827
• Citation: 293 S.W. 142,316 Mo. 1235
• Parties: Lucille Burke, A Minor, by Mary Burke, Her Next Friend, Appellant, v. James Pappas and Peter Pappas, Doing Business as Standard Meat & Grocery Company
• Court: Missouri Supreme Court

293 S.W. 142

316 Mo. 1235

Lucille Burke, A Minor, by Mary Burke, Her Next Friend, Appellant, v. James Pappas and Peter Pappas, Doing Business as Standard Meat & Grocery Company

No. 25827

Supreme Court of Missouri

April 11, 1927

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Reversed and remanded.

Mark D. Eagleton, Everett J. Hullverson and Harry S Rooks for appellant.

(1) The giving of Instruction 9 was error. (a) Plaintiff submitted the case to the jury solely on the humanitarian doctrine, and there was no issue of contributory negligence for the jury to decide, because contributory negligence is not a defense under the humanitarian doctrine. The instruction submitted contributory negligence as a defense, which was error, and "highly prejudicial." Spindler v. Wells, 276 S.W. 388; Yakoboski v. Wells, 253 S.W. 72; Nipper v. Railroad, 145 Mo.App. 224; Jackson v Rys. Co., 232 S.W. 753; Evans v. Klusmeyer, 301 Mo. 352. (b) This instruction, in express terms, is a contributory negligence instruction. It cannot be construed as a defendant's humanitarian doctrine instruction, because it would mean that the defendant's duties under the humanitarian doctrine do not arise until the plaintiff is in the actual path of the on-coming vehicle. The instruction entirely ignores the defendant's duty under the humanitarian doctrine to give warning to prevent the plaintiff from stepping into the path of the vehicle, and to begin to stop before the pedestrian actually does step into the path of the vehicle. The zone of peril under the humanitarian doctrine is not limited to the immediate path of the approaching vehicle. Zumwalt v. Railroad, 266 S.W. 717; Maginnis v. Railroad, 268 Mo. 667; Murrell v. Railroad, 279 Mo. 92, 112; Wolf v. Railroad, 212 Mo.App. 26, 47; Hornbuckle v. McCarty, 295 Mo. 162; Hopfinger v. Young, 179 S.W. 747. (2) The giving of Instructions numbered 5, 6 and 7 was error because: (a) These instructions all submit contributory negligence for the jury's decision, although it was not a defense. Such instructions can serve no legitimate purpose in a humanitarian-doctrine case. Their inevitable effect is to confuse and mislead the jury. Thornton v. Stewart, 240 S.W. 504; Smith v. Rys. Co., 208 Mo.App. 148; Jackson v. Rys. Co., 232 S.W. 752. (b) It is error to inject such false issues into the case. Strother v. Milling Co., 261 Mo. 1, 22. (3) The giving of Instruction 8 was error because: It is misleading, argumentative and an unwarranted comment on the evidence. It led the jury to believe that the automobilist is only required to observe the same precautions to prevent it striking a pedestrian that a pedestrian is required to observe to prevent being struck by the automobile, whereas, even the common law requires the automobilist at least to do what an ordinarily careful and prudent person while driving an automobile under similar circumstances would do, and only requires that the pedestrian act as an ordinarily careful and prudent pedestrian would act under similar conditions. These precautions are manifestly not the same. The comparison of their duties as being equal is erroneous, unfair and highly misleading and confusing to the jury; the fact that the plaintiff in this case is not sui juris further magnifies the error. And, since the plaintiff's case was submitted solely on the humanitarian doctrine, the error and misleading effect of the instruction is emphasized. The duties and responsibilities under the humanitarian doctrine of the automobilist and the pedestrian are not in any sense the same. If they were the same, the humanitarian doctrine manifestly would not exist at all. And, further, when the collision occurred, the statute (Laws 1921, Ex. Sess. sec. 19, p. 91) required the automobilist to exercise the highest degree of care. Tutie v. Kennedy, 272 S.W. 122.

Brackman, Hausner & Versen for respondents.

(1) Plaintiff limited her right to recover under the humanitarian theory to negligence on the part of the defendants after she occupied a position of imminent peril of being struck. She fixed the danger zone as in the immediate path of the automobile. The court thereupon gave Instruction 9 as the direct converse or opposite of plaintiff's theory as embodied in Instruction 1, which it had the right to do. Meeker v. Street Ry. Co., 178 Mo. 173; Heinzle v. Street Ry. Co., 213 Mo. 102; Harmon v. United Railways Co., 163 Mo.App. 442. (2) A judgment should not be reversed unless error was committed materially affecting the merits of the action, and it is incumbent upon appellant to show error on the part of the court and that she was prejudiced thereby. Sec. 1513, R. S. 1919; Wellman v. Street Ry. Co., 219 Mo. 136; Morgan v. Wabash, Railroad, 159 Mo. 262. (3) Plaintiff tried her case upon the theory that defendant was required to exercise ordinary care to avoid injuring her. She cannot now be heard to complain on appeal that error was committed by the court in failing to instruct the jury that the defendant was required to exercise the highest degree of care. Parties are bound by the theories adopted by them at the trial. Harper v. Morse, 114 Mo. 317; Boyd v. Railroad, 236 Mo. 54; Barr v. Hayes, 172 Mo.App. 592. (4) The evidence was insufficient to submit the case to the jury on the humanitarian theory as pleaded and as submitted by plaintiff's instruction. Murray v. Wire & Iron Co., 238 S.W. 836; Wilson v. Flour Mill Co., 245 S.W. 205; Meeker v. Street Ry. Co., 178 Mo. 173; Heinzle v. Street Ry. Co., 213 Mo. 102; Morgan v. Wabash Railroad, 159 Mo. 262.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Plaintiff, a minor about seventeen years of age, sued to recover damages resulting from personal injuries alleged to have been caused by the negligent operation of an automobile owned and operated by defendants in their business upon a public street in the city of St. Louis. Plaintiff, a pedestrian, was injured at the intersection of Franklin Avenue and Sixteenth Street about 5:30 P. M. on December 14, 1922. The petition charges defendants with several acts of negligence, but the cause was submitted by plaintiff to the jury solely upon the humanitarian, or last-chance, doctrine of negligence, the specification of which negligence, as pleaded in the petition, is as follows: "That the defendants, their agent and servant, did negligently and carelessly fail to stop or slacken the speed of said automobile, or turn same aside, or give a timely warning of the approach of said automobile, after they saw, or by the exercise of ordinary care on their part could have seen, the plaintiff in a position of imminent peril to which she was oblivious, in time thereafter by the exercise of ordinary care with the means and appliances at hand and with safety to persons riding in said automobile to have stopped the same, or to have sufficiently slackened the speed thereof, or to have turned the same aside, or to have given a timely warning of the approach of said automobile, and thus and thereby avoided striking or injuring the plaintiff." The answer is a general denial and a plea of contributory negligence in that it is charged in the answer that plaintiff negligently failed to look and to listen for approaching vehicles, and that "plaintiff negligently and carelessly failed to stop or alter her course after she saw, or by the exercise of ordinary care could have seen, defendants' automobile in motion and approaching in time, by the exercise of such care, to have avoided colliding therewith." The reply is a general denial.

Plaintiff was walking in a westerly direction on the south side of Franklin Avenue, using the usual cross-walk for pedestrians. She was accompanied by a girl friend, who is about the same age as plaintiff. Franklin Avenue is an east-and-west street and Sixteenth Street is a north-and-south street, and the roadway of each street is about 40 feet wide. The collision occurred after dark, but the evidence tends to show that the intersection was fairly well lighted. The streets were wet from a recent rain, and there was a light drizzle of rain falling at the time of the collision. There is a street-railway track along Franklin Avenue, located about the middle of the roadway.

Plaintiff testified that she and her girl companion were crossing from the east to the west side of Sixteenth Street at its intersection with Franklin Avenue, on the public crossing on the south side of Franklin Avenue; plaintiff was on the north and her friend was on the south, or plaintiff's left side; when plaintiff left, the curbing on the east side of Sixteenth Street, she looked to see if there was any approaching traffic; she first looked north and saw an automobile about ten feet north of Franklin Avenue, traveling at a slow rate of speed, and plaintiff thought she could cross before the automobile would reach the intersection; she then looked south, and did not look north again until she reached the path of the automobile, when she saw the glare of the headlights, and the next she knew the automobile had hit her, throwing her about ten feet to the northwest; she was in the middle of Sixteenth Street when she was struck and was walking on the crossing used by pedestrians in crossing Sixteenth Street; when she saw the glare of the headlights, the automobile was "almost on top of her," and "it was hardly a foot away;" there was a west bound street car, which had stopped on the east side of Sixteenth Street just prior to the collision, and the automobile passed in from of the street car without waiting for the street car to start; after the automobile struck plaintiff, it went about ten feet farther and parked at the southwest curbing; it was dark at the time, but the street lights were lit; she took about two steps off...