Carle v. Akin

• Decision Date: 05 November 1935
• Docket Number: 32871
• Citation: 87 S.W.2d 406
• Parties: CARLE v. AKIN
• Court: Missouri Supreme Court

87 S.W.2d 406

CARLE v. AKIN

No. 32871

Supreme Court of Missouri, Second Division

November 5, 1935

Roessel & Minton, of St. Louis, for appellant.

Atkins & Koenig, of St. Louis, for respondent.

OPINION

COOLEY, Commissioner.

Appeal by defendant from an order of the circuit court sustaining the plaintiff's motion for new trial. With slight modification, we adopt appellant's statement of facts as follows:

'This is an action for personal injuries sustained by the respondent (plaintiff) on or about the 12th day of July 1931, while plaintiff as a pedestrian was crossing Olive street, in the city of St. Louis, Mo., at its intersection with Beaumont street, in said city.

'Olive street runs east and west and is approximately 75 feet in width. Beaumont street runs north and south, and is approximately 30 feet in width. Olive street is marked with red and green 'Stop' and 'Go' signals at intervals of every few blocks, there being such a signal at Jefferson avenue, one block to the east of the scene of the accident. The next signal was a block west of the scene of the accident. These signals are synchronized for vehicles traveling at a speed of 30 miles per hour. The intervening streets, such as Beaumont, are marked with signs warning against breaking through moving lines of traffic.

'The accident occurred on a Sunday afternoon at approximately 2 o'clock. The plaintiff was crossing from the south side of Olive street to the north side thereof at its intersection with Beaumont. The defendant was traveling in a westwardly direction on said Olive street, accompanied by a young lady who occupied the front seat with him.

'The evidence shows that the day was dry and clear; that several automobiles, including that of the defendant, were proceeding westwardly on Olive street. The plaintiff saw these automobiles approaching when he reached approximately the center of Olive street, or the space between the rails of the westbound car track. The plaintiff's evidence showed that he stopped at about the center of the westbound car track for the purpose of permitting these automobiles to pass. The defendant's evidence, corroborated by his passenger and likewise two witnesses, was to the effect that plaintiff did not stop, but proceeded on across, dodging in front of one automobile, stepping into the pathway of another, and then jumping back immediately into the path of the defendant's approaching automobile.'

Plaintiff was struck and injured by defendant's automobile. The case was submitted to the jury on two specifications of primary negligence and on negligence under the humanitarian doctrine. The jury returned a verdict for the defendant. The court sustained the plaintiff's motion for new trial on the ground, stated of record, that it had erred in giving defendant's instruction No. 9. Such further reference to the facts as may be necessary will be made in the course of the opinion.

On behalf of plaintiff, the court gave the following instruction (No. 1), submitting the case under the pleaded humanitarian doctrine:

'The Court instructs the jury that if they find from the evidence that Olive Street and Beaumont Street at the times mentioned in the evidence at the places mentioned in the evidence were open, public streets in the City of St. Louis, Missouri, and that on July 12th, 1931, plaintiff was on said Olive Street near said Beaumont Street and that while he was there he was struck by an automobile mentioned in the evidence and that he thereby sustained injuries mentioned in the evidence and that before he was so struck by said automobile he was in imminent peril of being struck and injured by said automobile and that defendant was in control of and operating said automobile on such occasion and that defendant knew or by the exercise of the highest degree of care would have known that plaintiff was in imminent peril of being struck by said automobile and injured thereby, in time for defendant to have thereafter by the exercise of the highest degree of care and with safety to whoever was in said automobile and to said automobile, stopped said automobile before it struck plaintiff or diverted the course of said automobile sufficiently to have prevented it from striking plaintiff or slackened its speed sufficiently to have prevented it from striking plaintiff and that defendant failed to stop said automobile before it struck plaintiff and failed to divert its course sufficiently to prevent it from striking plaintiff and failed to slacken it sufficiently to prevent it from striking plaintiff and that in so failing to stop said automobile before it struck plaintiff or slackened its speed sufficiently to prevent it from striking plaintiff or diverting its course sufficiently to prevent it from striking plaintiff, defendants failed to exercise the highest degree of care and that the injuries to plaintiff were directly caused by such failure of defendant to exercise such care (if the jury find from the evidence there was such failure) then the jury should find for plaintiff against defendant notwithstanding the jury may further find from the evidence that plaintiff was guilty of negligence in attempting to cross said street while said automobile was approaching.'

Defendant's instruction No. 9 reads:

'The Court instructs the Jury that there was no duty resting upon the Defendant. Earl Akin, the driver of the automobile mentioned in evidence, to give a warning or to stop his automobile, slacken the speed thereof, or divert the course of the same, until it became apparent in the exercise of the highest degree of care on the part of the said Defendant that the plaintiff was in a position of peril on the street mentioned and described in the evidence, and that said Plaintiff was oblivious of such peril, if any, or unable to extricate himself therefrom.

'Therefore, if you find and believe from the evidence that the perilous position of the Plaintiff, if any, became so apparent to the said Defendant, Earl Akin, when his automobile was so close to the said Plaintiff that the same could not be stopped, the speed thereof slackened, or the course of the same diverted, by the exercise of the highest degree of care, nor a warning given in time to avoid striking said Plaintiff, then Plaintiff is not entitled to recover, and your verdict must be for the Defendant.'

I. Respondent's first contention is that defendant's instruction No. 9 'restricts and narrows the issues,' in that it tells the jury that no duty rested on defendant to stop, slacken speed, or swerve his car 'until it became apparent' in the exercise of the highest degree of care on the part of defendant that plaintiff was 'in a position of peril,' whereas, respondent asserts, it should have required defendant to act as soon as, in the exercise of such care, it should have been so apparent to him. Said instruction No. 9 is substantially a replica of an instruction given for the defendant in Sackmann v. Wells (Mo. Sup.) 41 S.W.2d 153, a 'humanitarian' negligence case, the only substantial difference being that in the Sackmann Case the defendant was required to use only ordinary care, since the instrumentality which inflicted the injury in that case was a street car, while in the instant case the defendant, under the statute, was required to use the highest degree of care. In the Sackmann Case, the defendant's instruction was criticized on the same ground as in this case. Division 1 of this court, speaking through Ragland, J., said, 41 S.W.2d 153, loc. cit. 155:

'Appellant contends that defendant's instruction 6 is in conflict with plaintiff's instruction 1, in this, that under instruction 1 the motorman was required to act when he saw and knew, or by the exercise of ordinary care could have seen and known, that Kerr was in a position of peril, while under instruction 6 he was required to act only when Kerr's position of peril became apparent to him. The criticism indicates an inaccurate reading of instruction 6. The first part of the instruction told the jury that no duty rested upon the motorman to sound a whistle or check the speed of the car until it became apparent, in the exercise of ordinary care upon the part of the motorman, that the automobile was in or approaching a position of peril; it then instructed them that if the perilous position of the automobile, if any, became so apparent to the motorman when the automobile was so close to the street car that its speed could not be checked nor the whistle sounded in time to avoid striking the automobile, then their verdict should be for the defendant. The words 'so apparent' clearly refer to the language used in the preceding part of the instruction: 'Apparent, in the exercise of ordinary care upon the part of the motorman' The language used in the instruction, in defining the knowledge, actual or constructive, on the part of the motorman to put upon him the duty of acting to avoid the collision, is general, and, if it stood alone, would be somewhat vague and indefinite. But it is not in conflict, nor inconsistent, with the specific language used in instruction 1, and, when the two are read together, the meaning of the former is perfectly clear.'

Respondent cites in support of his contention Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440, 441, and several other cases of like import. The instruction condemned in the Martin Case authorized a verdict for the defendant if the plaintiff stepped ' 'directly into the path of the automobile' or 'so close thereto' '' that the defendant could not thereafter, in the exercise of the highest degree of care, stop or swerve his car and avoid striking the plaintiff. The court said, 331 Mo. 861, 55 S.W.2d 440, loc. cit. 441 [1,2], that the driver's duty under the humanitarian rule began when he...