Chastain v. Winton

• Decision Date: 10 June 1941
• Docket Number: 36664
• Parties: Julius Chastain v. James P. Winton, doing business as Black & White Cab Company, and S. L. Agee, Appellants
• Court: Missouri Supreme Court

152 S.W.2d 165

347 Mo. 1211

Julius Chastain v. James P. Winton, doing business as Black & White Cab Company, and S. L. Agee, Appellants

No. 36664

Supreme Court of Missouri

June 10, 1941

Appeal from Greene Circuit Court; Hon. Warren L. White Judge; Opinion filed at September Term, 1940, April 3, 1941 motion for rehearing or transfer to Court en Banc filed motion overruled at May Term, 1941, June 10, 1941.

Affirmed.

Lincoln & Lincoln and F. W. Barrett for appellants.

(1) Giving or refusing withdrawal instructions rests in sound discretion of trial court. Moore v. Great Atlantic & Pacific Tea Co., 92 S.W.2d 912, 230 Mo.App. 495; Linders v. Peoples Motor Bus Co., 32 S.W.2d 580. (a) Instructions A and B were not in conflict with any given instruction in the case, and did not withdraw any evidence from the consideration of the jury that would have tended to support any issue submitted, and were not, therefore, erroneous. Yuronis v. Wells, 17 S.W.2d 518; Heibel v. Ahrens, 55 S.W.2d 473; Sackman v. Wells, 41 S.W.2d 153; Fuenfgeld v. Holt, 70 S.W.2d 143. (2) Even though the giving of Instructions A and B was erroneous, such error could not be invoked for a new trial, if the demurrer to the evidence should have been sustained. Conroy v. St. Joseph Ry., L., H. & P. Co., 134 S.W.2d 93. (3) The demurrer to the evidence should have been sustained because no case was attempted or submitted except under the humanitarian doctrine, and the evidence wholly fails to show at least one essential element to make such a case, to-wit: That the plaintiff was in a position of imminent peril and that the defendants by the exercise of the highest degree of care saw or should have thus seen him in time thereafter to have avoided striking him. White v. Mo. Motors Dis. Co., 47 S.W.2d 245; Borgstede v. Waldbauer, 88 S.W.2d 373. (a) The demurrer to the evidence should have been sustained as to the defendant Winton because the evidence shows that the driver of the cab was not the agent or servant of the said defendant at the time of the accident. Ursch v. Hurer, 241 S.W. 439; Anderson v. Nagle, 259 S.W. 858.

Joe N. Brown, Frank B. Williams and Sizer & Myres for respondent.

(1) The giving or refusing of withdrawal instructions is not in the discretion of the court, where the judicial act, as here, is directed solely at a question of law. Yuronis v Wells, 17 S.W.2d 518. (2) Defendants' withdrawal instructions A and B, which told the jury there is no "evidence in this case tending to prove excessive speed or negligent failure to keep vigilant watch," are prejudicially erroneous (a) because they conflict with plaintiff's instructions 1 and 2, which submit humanitarian negligence as the sole ground of recovery, and (b) because they withdraw from the consideration of the jury evidence of speed and vigilant watch necessary for the jury to consider under the humanitarian instructions. Shumate v. Wells, 9 S.W.2d 622, 320 Mo. 536; Reith v. Tober, 8 S.W.2d 601; Schulz v. Smercina, 1 S.W.2d 113; Gettys v. American Car Foundry Co., 16 S.W.2d 88; Clift v. Railroad, 9 S.W.2d 972. When the plaintiff's case is submitted solely on the humanitarian rule, other pleaded negligence drops out of the case, and is as fully out of the case as if specifically withdrawn by instructions. Reith v. Tober, 8 S.W.2d 612. It was proper for the jury to consider the rate of speed in determining whether or not the taxi driver did everything in his power to avert the injury after plaintiff's peril arose. Kinlen v. Railroad, 216 Mo. 145. A speed which would be free from the implications of negligence under some circumstances might easily be regarded as a very negligent and unsafe speed under other and different circumstances. Bramlett v. Harlow, 77 S.W.2d 626. Defendants' taxi driver saw plaintiff in the path of the taxicab, inattentive to its approach and oblivious to peril from it. He was thereupon charged with the necessity of taking cognizance of the possibilities of the situation, and of having his cab under such control that he could avoid injuring plaintiff, in approaching and passing him, and not wait until the actual moment of peril should arise, before acting. Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 673. Only minds trained in weighing and differentiating legal terms would be capable of perceiving the difference between "assignments" of negligence, and "evidence" of negligence, as these terms are used in defendants' withdrawal instructions A and B. Shumate v. Wells, 9 S.W.2d 632, 320 Mo. 546. Defendants' withdrawal instructions A and B were calculated to lead the jury to believe that defendants' taxi driver was not negligent, even though he failed to keep a vigilant watch, and even though he failed to check the speed of his cab, after he saw that plaintiff, by disregarding his warning signals, was inattentive to it and oblivious of danger from it. Reith v. Tober, 8 S.W.2d 607; Schulz v. Smercina, 1 S.W.2d 113. It is a cardinal rule that withdrawal instructions may not be given, if they affect the facts upon which liability may be justly predicated under other specifications of negligence. Withdrawal instructions should be clear and unambiguous, without leaving the matter to be withdrawn in doubt, and without in any manner confusing and misleading the jury. Gettys v. American Car & Foundry Co., 16 S.W.2d 88; Reith v. Tober, 8 S.W.2d 612; Schulz v. Smercina, 1 S.W.2d 113; Shumate v. Wells, 9 S.W.2d 622. (3) When a pedestrian is oblivious to the approach of an automobile traveling towards him, the law imposes the duty upon the driver of the automobile to act in such manner as to avert the accident if there is time in which to do so. Miller v. Williams, 76 S.W.2d 355. (a) This duty begins when it becomes apparent that the pedestrian is intent on so acting as to be in peril from the approaching car. McGinnis v. Railroad, 268 Mo. 678, 187 S.W. 1168; Lewis v. St. Louis Independent Packing Co., 3 S.W.2d 249. (b) It is not necessary that the circumstances be such as to convince the driver of the automobile that the plaintiff is inattentive and, therefore, in danger. It is enough that the circumstances are such as to indicate a reasonable chance that this is the case, and to act at a time when action would be effective. Womack v. Mo. Pac. Ry. Co., 88 S.W.2d 368; Restatement of Law of Torts, sec. 480. (c) The party charged may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission. Combs v. Standard Oil Co., 222 Mo.App. 180, 296 S.W. 817. (d) Even though plaintiff was not struck by the taxicab, his injury was proximately caused by the negligence of the taxi driver in placing him, suddenly and without warning, in what seemed to him was imminent and deadly peril from which, in his frantic effort to escape, he threw up his hand containing his dinner bucket which contacted the taxicab and rebounded against his face and knocked out his eye. Proffitt v. Farmers Produce Exch., 64 S.W.2d 746; Stanley v. Helm, 204 Mo.App. 159, 225 S.W. 125. (e) An automobile driven along a public highway cannot be run into a foot traveler on the highway, from behind, without affording evidence of negligence. 9 Blashfield Cyc. of Auto Law & Pr. (Perm. Ed.), p. 299, sec. 6045; Smith v. Shatz, 200 A. 620. (f) If an emergency is created by the acts of the defendant, a party, in such situation, is not negligent in failing to take a safe course. Higgins v. Terminal Ry. Assn., 97 S.W.2d 892; Maynard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Carter v. Wells, 40 S.W.2d 725. (4) The owner of a taxicab is liable for the negligence of a driver whose term is indefinite, who receives all in excess of 10c per mile for his compensation, although the driver could go where he pleased and could fix his own charges. Fitzgerald v. Cardwell, 207 Mo.App. 514. (a) The intent of a person cannot be proved by direct and positive evidence. It is a question of fact, to be proven, like any other fact, by acts, conduct and circumstances; by just and reasonable deductions from the acts and facts proven, and is ordinarily for the attention of the triers of the fact. Edie v. Coleman, 141 S.W.2d 238; Chambers v. Chambers, 227 Mo. 261; Gillis v. Singer, 86 S.W.2d 357. (b) Slight deviation from a direct route will not exonerate the master from the negligence of the servant, neither will slight things done by the chauffeur for his own benefit while in the line of the service of the master. Guthrie v. Holmes, 198 S.W. 854; Fidelity & Casualty Co. v. K. C. Ry. Co., 207 Mo.App. 137, 231 S.W. 277; Duffie v. Hickey, 91 So. 733. (c) It is only where the degree of deviation is marked or unusual, that the court would, as matter of law, declare that the servant had departed from the scope of his employment. Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Fidelity & Casualty Co. v. K. C. Ry. Co., 207 Mo.App. 137, 231 S.W. 277; Schrayer v. Bishop, 92 Conn. 677, 104 A. 349. (d) The cases falling between these extremes will be regarded as involving a question of fact to be left to the jury. Fidelity & Casualty Co. v. K. C. Ry. Co., 207 Mo.App. 137, 231 S.W. 277; Fuqua v. Lumberman's Supply Co., 76 S.W.2d 715. (e) Differences in the degree of deviation may produce unlike effects. But, whatever the facts, the answer depends upon a consideration of what the servant was doing, and why, when, where and how he was doing it. Riley v. Standard Oil Co., 231 N.Y. 301, 132 N.E. 97; LaBella v. S.W. Bell Tel. Co., 24 S.W. 1072. (f) Where the owner entrusts the vehicle to the servant, generally, to be used at his discretion, in doing such business as he, the servant, could secure in the way of employment for the vehicle, the master is liable for the negligence of the servant committed while on a mission of...