Chenoweth v. McBurney
| Decision Date | 14 November 1949 |
| Docket Number | 40911 |
| Citation | 224 S.W.2d 114,359 Mo. 890 |
| Parties | Robert D. Chenoweth, Appellant, v. James W. McBurney, Respondent |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court; Hon. Frank Hollingsworth, Judge.
Affirmed.
Plaintiff truck driver collided on the highway with defendant automobile driver. A directed verdict for defendant on plaintiff's petition and a jury verdict for defendant on defendant's counterclaim are affirmed. Plaintiff did not make a submissible humanitarian case as he was not in imminent peril when he passed another vehicle when defendant was about 1000 feet away, and defendant had no chance to avoid the collision when plaintiff's truck struck the end of a bridge and was deflected in front of defendant's automobile. And there would be no basis for a new trial on the theory of primary negligence.
Edwin C. Orr and Carl F. Sapp for appellant.
(1) Appellant made a submissible case of negligence against the defendant under the humanitarian doctrine. Banks v Morris, 302 Mo. 254, 257 S.W. 482; Evans v. Farmers Elevator Co., 147 S.W.2d 593, 347 Mo. 326; Spoeneman v. Uhri, 60 S.W.2d 9, 332 Mo. 821; Stanton v. Jones, 59 S.W.2d 648, 332 Mo. 631; Wright v. Osborn, 201 S.W.2d 935, 356 Mo. 382; Perkins v. Terminal R. Assn., 102 S.W.2d 915, 340 Mo. 868; Pabst v. Armbruster, 91 S.W.2d 652; Stanley v. Helm, 223 S.W. 125, 204 Mo.App. 159; Roberts v. Atlas Life Ins. Co., 163 S.W.2d 369, 236 Mo.App. 1162; Tunget v. Cook, 94 S.W.2d 921; Pearson v. K.C. Pub. Serv. Co., 217 S.W.2d 276; Albright v. Joplin Oil Co., 229 S.W. 829, 206 Mo.App. 412; Annotation 92 A.L.R. 47; McCleary, "The Bases of the Humanitarian Doctrine Reexamined," Mo. Law Rev., Vol. 5, No. 1, p. 56. (2) Appellant made a submissible case of primary negligence against the defendant on all of the following grounds: Excessive speed while approaching a narrow bridge in the face of approaching traffic and truck on defendant's (north) side of the road. Hillis v. Home Owners Loan Corp., 154 S.W.2d 761, 348 Mo. 601; Dodson v. Gate City Oil Co., 88 S.W.2d 886, 338 Mo. 183; Booth v. Gilbert, 79 F.2d 790; Riley v. Young, 218 S.W.2d 805; Bear v. Devore, 176 S.W.2d 862, 177 S.W.2d 674; Wood v. Clausen, 207 S.W.2d 802; Bach v. Ludwig, 109 S.W.2d 724. (3) Failure to keep a reasonable and careful lookout for vehicles on the highway approaching him and failure to exercise the highest degree of care to discover plaintiff on said highway and in a position of danger on said highway. Wright v. Osborn, 201 S.W.2d 935; Brown v. Toedebusch Transfer, Inc., 190 S.W.2d 239, 354 Mo. 611; Kaley v. Huntley, 63 S.W.2d 21, 333 Mo. 771; Riley v. Young, 218 S.W.2d 805. (4) Defendant carelessly and negligently failed to slow down or slacken his speed as he approached the bridge and the oncoming traffic. Hillis v. Home Owners Loan, 154 S.W.2d 761, 348 Mo. 601; Cox v. Reynolds, 18 S.W.2d 575; Riley v. Young, 218 S.W.2d 805. (5) The court erred in refusing plaintiff's instructions P-1, P-2 and P-3, and erred in not submitting to the jury by proper instruction the issue of defendant's contributory negligence. Nelson v. Evans, 93 S.W.2d 691, 338 Mo. 991; Brown v. Toedebusch Transfer, Inc., 190 S.W.2d 239, 354 Mo. 611; Alexander v. St. Louis-S.F.R. Co., 38 S.W.2d 1023, 327 Mo. 1012; Riley v. Young, 218 S.W.2d 805; Crawshaw v. Mable, 52 S.W.2d 1029; Johnessee v. Central States Oil Co., 200 S.W.2d 383; Smith v. Weilbacher Truck Service, 35 S.W.2d 996; Columbia Taxicab Co. v. Roemmich, 208 S.W. 859. (6) Defendant McBurney was guilty of contributory negligence as a matter of law, and his cause of action against the plaintiff should have not been submitted to the jury. Alexander v. St. Louis-S.F.R. Co., 38 S.W.2d 1023, 327 Mo. 1012.
Alexander, Ausmus & Harris and Warren D. Welliver for respondent.
(1) The assignments of error made in Points (5) and (6) of appellant's brief and all issues concerning or pertaining to defendant's counterclaim have been rendered moot by the settlement which was made pending this appeal. Walther v. Woodson, 190 S.W. 61; State ex rel. Myers v. Shinnick, 19 S.W.2d 676; State ex rel. Donnell v. Searcy, 152 S.W.2d 8, 347 Mo. 1052; Mathis v. Wabash R. Co., 151 S.W. 421. (2) Plaintiff did not make a submissible case on primary negligence because, based on all the evidence, reasonable minds could not differ on the proposition that plaintiff, as a matter of law, was guilty of negligence which caused and resulted in his alleged injuries. Baranovic v. C.A. Moreno Co., 114 S.W.2d 1043, 342 Mo. 322; Heryford v. Spitcaufsky, 200 S.W. 123; 1 Blashfield, Cyc. Automobile Law, sec. 748, p. 676, n. 70; Fly v. Swink, 69 S.W.2d 902, 17 Tenn.App. 627; Holt v. Bartell, 1 S.W.2d 1030. (3) Plaintiff did not make a submissible case under the humanitarian doctrine. Plaintiff was not in a position of imminent peril until after he struck the bridge abutment and careened into the path of defendant's approaching automobile. Banks v. Morris & Co., 257 S.W. 482, 302 Mo. 254; Columbia Taxicab Co. v. Roemmick, 208 S.W. 859; Albright v. Joplin Oil Co., 229 S.W. 829, 206 Mo.App. 412; Shaw v. Wilcox, 224 S.W. 58; Clark v. Atchison, T. & S.F. Ry. Co., 6 S.W.2d 954, 319 Mo. 865; Stanton v. Jones, 59 S.W.2d 648, 332 Mo. 631; White v. Missouri Motors Distributing Co., 47 S.W.2d 245, 226 Mo.App. 453. (4) After plaintiff entered a position of imminent peril, there was no evidence of any humanitarian negligence on the part of the defendant. Spoeneman v. Uhri, 60 S.W.2d 9, 332 Mo. 821; Bauer v. Wood, 154 S.W.2d 356, 236 Mo.App. 266.
This is a personal injury action for damages arising from a collision between plaintiff's truck and defendant's automobile on highway 54 about four miles east of Mexico. Plaintiff presented his case in the trial court on the humanitarian doctrine. Defendant counterclaimed on the ground that it was plaintiff's negligence which caused the accident, and defendant's resulting injuries. As to plaintiff's case, at the close of all the evidence, the trial court sustained defendant's motion for a directed verdict in favor of defendant and against plaintiff. The defendant's case on the counterclaim was submitted on primary negligence to a jury, and defendant recovered a verdict for $ 12,000 against plaintiff. Plaintiff has appealed.
Plaintiff makes two chief contentions on appeal. First, that he made a submissible case under the humanitarian doctrine; and second, that his evidence established a submissible case under primary negligence, although he had presented his case solely on the humanitarian doctrine. The determination of these contentions depends on the evidence which we have reviewed and find it does not support either of them. We conclude the action of the trial court was proper, and the jury's verdict was supported by the evidence. The judgment must be affirmed.
The evidence most favorable to plaintiff shows that plaintiff was operating a 1940 Chevrolet truck weighing 6300 pounds used for farm purposes. He was driving east on highway 54 at about 5:30 p.m. on Saturday afternoon June 14, 1947 on his way home after making some purchases in Mexico. Highway 54 has a pavement 20 feet wide. The highway crosses the G.M. & O. railroad tracks by an overpass and then descends down hill to Bean Branch which is spanned by a concrete bridge. The bridge has concrete walls along each side. Plaintiff had driven over the overpass and was proceeding eastwardly down hill at 50 miles an hour. He came upon a tractor pulling a wheat drill going about 5 miles an hour. He started to pull over onto the left or the north side of the highway when he was about 100 feet to the rear of the wheat drill. He passed the tractor and wheat drill when it was opposite a drain basin or spillway built into the edge of the pavement. The drain basin is 368 feet west of the west end of the bridge by actual measurement. The bridge is 67 feet long. When plaintiff was passing the tractor at the drain basin, he saw defendant's automobile coming toward him from the east. Defendant's automobile was then at a point about 1000 feet east of plaintiff's truck or about 565 feet from the east end of the bridge. Plaintiff proceeded down the left-hand lane of the highway for about 250 feet after passing the tractor. When he was about 100 feet from the bridge he cut quickly over to his right and into the right-hand traffic lane. After he was in his own traffic lane he apparently lost control of the truck and its right rear wheel struck the end of the side wall of the bridge causing the truck to be projected over into the left lane and directly in front of defendant's automobile. The vehicles collided at a point about equidistant from the ends of the bridge.
In order to sustain his contention that these facts make a case under the humanitarian doctrine plaintiff argues he was in a position of imminent peril when he was in the left-hand traffic lane at the point where he passed the tractor, and defendant 1000 feet away. Hence, he argues, under the requirements of the humanitarian doctrine defendant was obliged at that time to take action and use the means at hand with safety to himself to avoid injury to plaintiff; either to reduce his speed or, if necessary to stop his car. We do not agree with plaintiff's argument.
Under the humanitarian doctrine a defendant is required to use the means at hand with safety to himself to avoid injuring a plaintiff only when plaintiff is in a position of imminent peril. But in this case it can not be successfully maintained that plaintiff was in a position of imminent peril, -- peril that was certain, immediate and impending, -- at the time plaintiff was passing the tractor and defendant was 1000 feet away. The fact that plaintiff was not then in imminent peril is...
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