Byrnes v. Poplar Bluff Printing Co.

• Decision Date: 17 July 1934
• Docket Number: No. 31639.,31639.
• Parties: BYRNES v. POPLAR BLUFF PRINTING CO.
• Court: Missouri Supreme Court

74 S.W.2d 20

BYRNES v. POPLAR BLUFF PRINTING CO.

No. 31639.

Supreme Court of Missouri, Division No. 1.

July 17, 1934.

Appeal from Circuit Court, Butler County; Garry H. Yount, Special Judge.

Action by Lawrence Byrnes against the Poplar Bluff Printing Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

William N. Barron, of Poplar Bluff, and Allen, Moser & Marsalek, of St. Louis, for appellant.

Sam M. Phillips and L. E. Tedrick, both of Poplar Bluff, for respondent.

FRANK, Judge.

Action to recover for personal injuries and for damage to an automobile. Plaintiff recovered judgment for $10,400, and defendant appealed.

An opinion was written in this case by Commissioner Sturgis, affirming the judgment of the circuit court. All members of the court agreed with that part of the opinion holding that plaintiff made a case for the jury, but disagreed as to the correctness of plaintiff's instruction No. 1. On account of such disagreement the opinion did not receive a majority vote, and the case was reassigned to the writer hereof. We adopt that part of Commissioner Sturgis' opinion holding that plaintiff made a case for the jury. It reads as follows:

"The plaintiff recovered judgment on a jury trial for personal injuries and damage to his car resulting from a collision at a street intersection in Poplar Bluff, Mo., between plaintiff's automobile, driven by his wife, and defendant's automobile, driven by its president and employee, John H. Wolpers. The plaintiff and his wife were traveling north on Ninth street, a north and south street, and allege that in crossing the intersection with Spring street, an east and west street, the defendant's car, operated by Wolpers and going west on Spring street, ran into plaintiff's car at the street intersection, striking it at the right rear fender, with the result that plaintiff's car was overturned against a telephone pole at the northwest corner of the street intersection. There is no question as to plaintiff being severely injured in the manner stated. The collision between the two cars occurred about 10 o'clock at night, but the streets at this intersection were brilliantly lighted. In fact, defendant's driver blames the brilliant illumination of the intersection as being the principal cause of his not seeing the plaintiff's car as it approached the intersection from the south. In addition to the usual street lights at this intersection, there was a gasoline filling station at the northeast corner of the intersection, back 30 or 40 feet from the curb of each street, with a "flood light" about 100 feet east of the corner on Spring street, and another about the same distance north of the corner on Ninth street. The reflectors of these two floodlights threw the light toward the filling station and street intersection. There was some evidence of a slight obstruction to the vision as the cars approached each other at this intersection, but most of the evidence is that the occupants of each car had a practically clear view of the other car for a distance of at least 125 feet from the intersection. Plaintiff's car was traveling north on the right-hand or east side of Ninth street, and defendant's car was traveling west on the right-hand or north side of Spring street, and the collision point was north and east of the center of the intersection, and, as said, plaintiff's car was struck at the right rear fender; so that defendant's car, when it struck plaintiff's car, was just entering the lines of Ninth street and plaintiff's car lacked only 5 or 6 feet of clearing the north line of Spring street, the pathway of defendant's car.

"Plaintiff's petition alleged several grounds of negligence on the part of defendant's driver, such as excessive speed, failure to give any warning, etc., but the case was submitted to the jury only on one ground of defendant's negligence; a violation of the humanitarian rule, in that defendant's driver as he approached and entered on the street intersection saw, or by exercising reasonable care could and would have seen, the plaintiff's car crossing or about to cross Spring street in front of and approaching the pathway of defendant's car—in peril of collision—in time to have avoided striking plaintiff's car by the reasonable use of the means at hand in stopping, slowing up, or swerving defendant's car. This the defendant's driver concededly did not do, but drove straight ahead, striking the rear end of plaintiff's car. The physical facts and the result of the collision indicate a rather high rate of speed of the defendant's car. The defendant's driver testified that he was driving carefully and at a moderate rate of speed, but said that he did not and could not see plaintiff's car till it was 6 to 8 feet from him. His reason for not seeing it sooner was evidently not satisfactory to the jury. He also admitted that, `If I had applied those brakes within eight feet of the Byrnes car, I believe I could have stopped in time to have avoided the collision or slowed down enough to have let the other car get on up beyond the crossing.'

"The answer in the case, in addition to a general denial, set up contributory negligence of plaintiff and his wife in that, as the two cars would reach the street intersection at approximately the same time and defendant was approaching from the right, it was plaintiff's duty to yield the right of way to defendant, which plaintiff failed to do. See subsection (l), § 7777, R. S. 1929 (Mo. St. Ann. § 7777 (l), p. 5213). It is also worthy of note that defendant set up as contributory negligence on plaintiff's part the violation of the humanitarian rule by him and his driver, in that such driver in approaching this street intersection saw, or by due care could have seen, defendant and his car approaching this crossing in the pathway of plaintiff's car and in imminent peril of a collision therewith, in time to have avoided such collision by the use of the means at hand in stopping, slowing down, or swerving plaintiff's car out of the path of defendant's car. While ordinarily a violation of the humanitarian doctrine is such negligence as overrides and destroys the defense of contributory negligence on plaintiff's part, the question suggests itself whether or not this rule is applicable when the contributory negligence of plaintiff is concurrent and amounts to a like violation of the humanitarian doctrine. The defendant, however, does not controvert the application of the ordinary humanitarian rule to this case, and therefore plaintiff's contributory negligence disappears.

"Plaintiff's wife, driving his car, said that she first saw defendant's car when her car was just entering the south line of Spring street, and that defendant's car was then about 60 feet east of the point of collision. According to her evidence, the defendant's car moved about 60 feet and her car about 30 feet to the point of collision from their respective positions when she first saw defendant's car. She testified: `I had no idea that car would hit me at the distance it was from me when I seen it.' There is much other evidence that defendant's car was running much faster than plaintiff's car as the two approached the point of collision.

"Defendant assigns error in that the court overruled its demurrer to the evidence. This contention is based on the proposition that the driver of the defendant's car, though in its employ and using its automobile, was not at the time engaged in the business of the defendant, but was using the car by defendant's permission for his own use and pleasure. As to this point, the evidence is somewhat meager and indefinite. The defendant corporation, as its name indicates, operated a printing establishment at Poplar Bluff, Mo. This suit was first brought against both Wolpers, the driver of defendant's car, and the Poplar Bluff Printing Company, the present defendant, but after the evidence below mentioned was given the plaintiff voluntarily dismissed the case as to the driver Wolpers. The only evidence as to the driver Wolpers' connection with the defendant printing company introduced on the part of plaintiff is that he testified: `The car that hit me belonged to the defendant Poplar Bluff Printing Company and was driven by the defendant Wolpers. I heard him testify in the other case (Mrs. Byrnes' suit) before. He said he had been down to the shop over his work and was going home in this car. He stated that the car was furnished him to use to go to and from his work from his home.' Mr. Wolpers, the driver of the car and then a defendant, testified: `I am one of the defendants. I am the principal stockholder in the defendant corporation. I am president and general manager of the corporation. I remember the occasion when the car I was driving collided with a car driven by plaintiff's wife, Mrs. Byrnes. That was in June of last year. The collision took place pretty near the center of the intersection. It occurred about ten o'clock at night. I was going home at the time from my office.' On cross-examination, he further testified: `I am the president of the Poplar Bluff Printing Company and a stockholder. I am an employee of that company and the manager. On this particular night of June 14th, that was Saturday night, I was going home at the time of the collision. I had been at the office of the Poplar Bluff Printing Company at work. This car that I was driving on this occasion belonged to the Poplar Bluff Printing Company. I, as manager of the Poplar Bluff Printing Company, used that car in going to and from work. I kept that car at home. I would drive that car from my home down to the plant in the morning, and as I went home for lunch I would drive the car out home and back, and then when I went home in the evening I drove it home. The car was kept by the company for that purpose, for my use. Two of the boys with me were my boys, Allen and Robert. Robert is the older. Allen was riding in the seat with...