Cameron v. Howerton

• Decision Date: 07 June 1943
• Docket Number: No. 38301.,No. 38302.,38301.,38302.
• Citation: 174 S.W.2d 206
• Parties: CAMERON v. HOWERTON et al.
• Court: Missouri Supreme Court

174 S.W.2d 206

CAMERON v. HOWERTON et al.

No. 38301.

No. 38302.

Supreme Court of Missouri, Division No. 2.

June 7, 1943.

Rehearings Denied September 7, 1943.

Motions to Transfer to Court in Banc Denied October 4, 1943.

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

Action by Sam W. Cameron, Jr. against Orus Howerton and Stewart Sand & Material Company for personal injuries allegedly sustained by plaintiff when motorcycle on which he was riding collided with a truck driven by defendant Howerton who was alleged to have been in the employ of defendant Stewart Sand & Material Company. From order granting plaintiff a new trial as against defendant Howerton and order setting verdict against defendant company aside, but granting plaintiff a new trial, the defendants appeal.

Affirmed.

Walter A. Raymond, of Kansas City, for appellant Orus Howerton.

Henry M. Shughart and Harry P. Thomson, Jr., both of Kansas City, for appellant Stewart Sand & Material Co.

Norman P. Gordon, Arthur F. Schmahlfeldt, Clay C. Rogers, and Mosman, Rogers, Bell & Conrad, all of Kansas City, for respondent.

WESTHUES, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff when a motorcycle he was riding collided with a truck driven by defendant Howerton, who is alleged to have been in the employ of the defendant Stewart Sand & Material Company, a corporation. The trial resulted in a verdict in plaintiff's favor against the sand company in the sum of $8,925, and the jury by its verdict found in favor of the defendant Howerton. The trial court sustained plaintiff's motion for a new trial as against Howerton who appealed. The defendant sand company filed a motion in arrest of judgment which the court overruled. The court, however, set aside the verdict against the sand company thereby granting it a new trial. The defendant sand company appealed. The two appeals will be considered as one. The trial court assigned no reason why it granted plaintiff a new trial against Howerton, or why it set aside the verdict against the sand company.

Respondent Cameron contends that the appeal of the Stewart Sand & Material Company should be dismissed because it was not aggrieved by the judgment of the court within the meaning of sec. 1184, Mo. R.S.A. Respondent also asserts that the ruling made by this court in King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458, should operate prospectively and not retrospectively. It will be remembered that in the King case this court ruled that where a trial court failed in its statutory duty, sec. 1169, Mo.R.S.A., by not stating on what ground a new trial was granted, the burden rested on respondent to point out error justifying the action of the trial court. 164 S.W.2d 458 loc. cit. 463, 464 (6).

The conclusion we have reached dispenses with the necessity of ruling on the two question just mentioned and therefore they will not be considered. Both appellants contend that plaintiff's evidence was insufficient to sustain a verdict in his favor. This requires a review of the evidence. The case was submitted solely under the humanitarian doctrine. The evidence disclosed plaintiff was riding a motorcycle west on Fifteenth street in Kansas City, Missouri, and Howerton was driving a truck north on Indiana avenue. The collision occurred north of the center line of Fifteenth street where the motorcycle struck the truck. Fifteenth street was a main thoroughfare 76 feet in width with double car tracks thereon. The record indicates that there was no stop sign on this street at this intersection, but that there was such a sign on Indiana avenue south of Fifteenth street requiring northbound traffic to stop before entering the intersection. A light rain was falling at the time of the collision and the streets were wet. Plaintiff testified that as he approached the intersection at a speed of about 25 miles per hour he noticed the truck on Indiana avenue coming into Fifteenth street; that as it neared the car tracks it almost slowed down to a stop. Plaintiff testified that he thought the truck was slowing down intending to stop and permit the motorcycle to cross the intersection; that at that moment he looked straight ahead and after he entered the intersection the truck appeared in front of him; that he was so near he could not stop. He testified that he swerved his motorcycle to the south in an attempt to miss the truck, but failed and the collision followed. Defendant Howerton, when asked if he saw the motorcycle, answered: "I might have saw it, but I didn't particularly notice it any more than just traffic moving."

At another point in his evidence he testified the motorcycle was traveling about 35 miles per hour and did not slacken its speed before colliding with the truck. Howerton further testified that he changed gears about the time he reached the car tracks but did not slow down or slacken his speed. In this he was contradicted by one of his own witnesses. This witness was in a car traveling west on Fifteenth street a short distance behind the motorcycle. The witness testified as follows on the question of whether Howerton slackened the speed of the truck:

"Q. And that was a temporary hesitation in the forward movement of it, wasn't it? A. That is right.

"Q. And that was about the time the front end of the truck got to the south rail of the east-bound street car track? A. That is right.

"Q. And wherever you were, regardless of the number of feet you were east of there, you saw that? A. I noticed the hesitation.

"Q. Yes. It was clear to you? A. Yes."

This witness also testified that when the truck slowed down at the car tracks the motorcycle was between 40 and 60 feet from the intersection. Defendant testified that he stopped at the stop sign south of the intersection and when he started to cross he saw no cars coming toward the intersection. Here again Howerton's witness gave evidence which contradicted him. The same witness whose testimony we quoted above stated that he saw the truck at the stop sign and noticed when it began to move across the intersection. If this witness saw the truck, then the truck driver could have seen the car in which the witness was riding. As revealed by the evidence the car, the truck and the stop sign were so located that the drivers could have seen each other. We are of the opinion that the evidence was sufficient to support a verdict for plaintiff. It must be remembered that the defendant, Howerton, was required to stop his truck before entering the intersection. There was no stop sign against plaintiff. In those circumstances it was not unreasonable for plaintiff to think that the truck, when it slowed down at the car tracks, was going to stop and permit the motorcycle to pass. Yet the driver of the truck testified he never intended to stop. He saw the motorcycle approaching the intersection and noticed it did not change its speed, but according to his own evidence did nothing to avoid a collision which was certain to occur if both vehicles continued on their course. The evidence justified a finding that he could have easily stopped the truck at the car tracks, or before going into the pathway of the motorcycle, and thus have averted the collision.

The defendants rely strongly upon the case of Roach v. Kansas City Public Service Co., Mo.Sup., 141 S.W.2d 800, 802, as authority that plaintiff failed to make a case under the humanitarian doctrine. The facts and circumstances in each case must be considered. If this is done the Roach case is not in point. Roach, standing beside a bus, knocked at the door wanting the operator to open it. The bus moved forward and struck him. In the course of the opinion the court said: "What plaintiff's contention amounts to is that it was humanitarian negligence to start the bus because the driver should have anticipated that it might slip on the icy street after it began to move and that, if it did, plaintiff might thereafter be in a position of imminent peril."

It is apparent that the facts are so different from those in the case at bar that the case is not in point. The same may be said of a number of other cases cited. For example, Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 713; Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160. In the latter case, 111 S.W.2d 160 loc. cit. 162 (3), we desire to make a correction. It is there said: "We have repeatedly ruled that `imminent peril' means something more than a probability that injury may result."

The writer intended to use the word "possibility" and not "probability". Appellants say: "The evidence clearly shows that the plaintiff had ample opportunity to avoid the collision after the acts of the defendant Howerton" (meaning the slackening of speed at the car tracks) "which the plaintiff complains of as negligent had, so he says, taken place. It cannot be said that he was then in a position of imminent peril at the time they occurred."

If plaintiff could have avoided the collision then certainly the defendant could have. He testified he was traveling at a very slow speed. It must have been evident to him that if the vehicles continued on their course a collision was imminent. Yet in view of that, after coming to a near stop, he increased his speed.

It was stated in McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633 loc. cit. 639 (5): "Two factors must enter into a case under the humanitarian doctrine: (1) The injured party must actually be in or entering a position of imminent peril; (2) and the defendant must have actual or constructive notice of his peril."

It was also held in that case that as a general rule the cause of peril is immaterial. Applying these rules to the present case we must conclude that plaintiff made a submissible case for a jury.

Appellant sand company urges that the evidence conclusively shows that at the time of the collision Howerton was not its agent and servant and therefore the trial court should have...