Colvin v. Mills, 41520
| Decision Date | 11 September 1950 |
| Docket Number | No. 41520,No. 2,41520,2 |
| Citation | 360 Mo. 1181,232 S.W.2d 961 |
| Parties | COLVIN v. MILLS |
| Court | Missouri Supreme Court |
Roscoe Anderson, Norman Bierman, and Cullen Coil, all of St. Louis (Anderson Gilbert, Wolfort, Allen & Bierman, St. Louis, of counsel), for plaintiff-appellant.
Moser, Marsalek, Carpenter, Cleary & Carter, Lee M. Carter, and Wm. H. Allen, all of St. Louis, for respondent.
Action by Rose Colvin against Raymond Mills to recover damages in the sum of $45,000 for injuries sustained by her when as a pedestrian in the City of St. Louis she was struck by defendant's automobile. The jury returned a verdict in favor of defendant; judgment went accordingly, and plaintiff appealed. The amount in dispute gives this court jurisdiction.
The casualty occurred about 1:15 P.M., March 1, 1948. The streets were dry, the sky was overcast, but the visibility good. Grand Boulevard extends north and south. Lying in the middle thereof are two parallel sets of street car tracks, the east tracks being for northbound cars, and the west ones for southbound cars. Franklin Avenue extends east and west. It enters Grand from the east, makes a jog to the south, and, as it continues west of Grand, is known as Enright Avenue. There are double street car tracks in the approximate center of Enright-Franklin at the point of intersection with Grand, that intersection being irregular on account of the jog mentioned. There is a safety zone near the northwest corner of the intersection, it being located immediately west of the southbound track and north of Enright. It is 98 feet in length. There is only one traffic light at the intersection. It governs only southbound traffic. It has only one light--red--which is either on or off. There are not traffic lights for northbound traffic, nor for westbound traffic, nor for eastbound traffic. Grand is 50 feet wide and the street car tracks occupy 15 feet in the center thereof; that is, the distance from the west rail of the southbound track to the east rail of the northbound track is 15 feet. The space between the rails of each set of tracks is 4 feet 10 inches, and the space between the two sets of tracks (that is, between the west rail of the northbound tracks and the east rail of the southbound tracks) is 5 feet 4 inches. Street cars of the type herein involved are 46 feet in length, and 8 feet 4 inches in width. The overhang of such street cars is 1 foot 9 inches.
Plaintiff alighted from a southbound street car at the center exit door and stepped into the safety zone. She desired to cross to the east side of Grand. Instead of walking south to the front end of the standing street car in order to cross at the intersection, she walked north in the safety zone west of the street car. As she did so, the standing street car obstructed her view of Grand to the east. She turned to her right and walked behind the street car and undertook to cross Grand at a point where there was no intersection and no crosswalk marked in the street. So much for the facts as to which there is no dispute.
Plaintiff's version of the accident was that she looked at the traffic light when she alighted from the street car, and it was red; that she then walked northwardly in the safety zone of the buttons which form the north boundary of the safety zone. She looked again at the same traffic light and it was still red. She then started to walk at a normal rate of speed of 2 and 2 1/2 miles per hour (taking steps of 20 to 24 inches from heel to heel) in a northeasterly direction from the safety zone. When she was at a point a short distance to the north of the buttons, and in about the middle of the northbound tracks, she looked to her right to see the condition of the traffic light (which she had thought existed for northbound as well as southbound traffic), and saw defendant's automobile for the first time. Defendant's automobile was then about 50 feet, or 3 or 4 automobile lengths to the south, traveling north in the northbound car tracks. Plaintiff, on seeing defendant's automobile, and another automobile to the rear and in the lane to the right of defendant's automobile, stopped and took 1, 2 or 3 steps backward. Defendant's car continued on toward her at an estimated speed of 20 to 25 miles an hour, without slackening its speed, without swerving, and without sounding a horn, and struck her. If defendant had slowed down just a little, or swerved just a little, she would have been safe, as all she needed was another half a step, or a step, to get out of the way. After the impact she was lying near the west rail of the northbound tracks with part of her body between the west rail of the northbound tracks and the east rail of the southbound tracks. From the point of first contact with defendant's car, plaintiff was knocked northwardly not more than 2 or 3 feet.
The submission was solely under plaintiff's assignment of humanitarian negligence, her recovery instruction having told the jury, in substance, that if defendant saw, or in the exercise of the highest degree of care could have seen plaintiff in a position of imminent peril in time thereafter to have stopped, or slackened speed, or swerved, or sounded a warning, and by so doing could thereby have avoided striking and injuring plaintiff, and that he failed to do so, and that such failure was negligent, and such negligence directly and proximately caused defendant's automobile to strike and injure plaintiff, the verdict should be for plaintiff, and this though the jury should also find and believe that plaintiff was herself careless and negligent in getting into said position of imminent peril.
The single assignment on this appeal presents the question of the propriety of defendant's instruction No. 2, which the parties refer to as a converse humanitarian instruction, reading as follows:
In determining the propriety of the instruction, the evidence is to be viewed in the light most favorable to defendant. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461. With this rule in mind, we state defendant's version of the accident, as reflected by his own testimony, thus: That as he proceeded north on Grand and crossed Franklin, and approached the scene of the accident, a street car (by inference, the one on which plaintiff had been a passenger) was pulling away (to the south) from the safety zone, and another one, southbound, was pulling up and stopped somewhere near the middle of the safety zone; that the presence of the second street car at that point 'obscured the north end of the safety zone' and made it impossible to see the buttons marking the north boundary of the safety zone; that his car was traveling at approximately 15 miles per hour when he reached the north side of Franklin; that he continued to drive north with his left wheel just a little over the west rail of the northbound track, and when he was 'about 3 or 4 feet from the rear of the street car, Mrs. Colvin appeared at the back of the street car * * * she was right behind it, I would say, at the most 3 or 4 feet behind it;' that when he first saw her in his line of travel in the street car tracks, 'she was in the middle of a stride just right over my left fender; in fact, when I saw her I hit her.' He testified that when he saw her, he blew his horn and stepped on the brakes; that he did not know whether he had succeeded in slowing his speed before the impact; that plaintiff was struck by the left headlight and fender of his car; that he 'imagined' he traveled about 10 feet after the impact, and when the car came to a stop, Mrs. Colvin was about 3 feet in front of his car. He further testified that there was 'but very little' space between the left side of his car and the right side of the...
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...(shown by his evidence) which would disprove one or more of the basic facts of plaintiff's humanitarian submission". Colvin v. Mills, 360 Mo. 1181, 232 S.W.2d 961, 966(3); Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, 750(8). Although sometimes expressed in slightly different language,......
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...facts of plaintiff's humanitarian submission.' Janssens v. Thompson, 360 Mo. 351, 362, 228 S.W.2d 743, 750(8); Colvin v. Mills, 360 Mo. 1181, 1188, 232 S.W.2d 961, 966(3); Welch v. McNeely, supra, 269 S.W.2d loc. cit. 876(4). But, although a converse humanitarian tail is appended to Hullet'......
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