Dilallo v. Lynch

• Decision Date: 14 December 1936
• Docket Number: 34250
• Citation: 101 S.W.2d 7,340 Mo. 82
• Parties: Leo Dilallo, Appellant, v. James A. Lynch and Genevieve Lynch
• Court: Missouri Supreme Court

101 S.W.2d 7

340 Mo. 82

Leo Dilallo, Appellant, v. James A. Lynch and Genevieve Lynch

No. 34250

Supreme Court of Missouri

December 14, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Judgment as to Genevieve Lynch affirmed and as to James A Lynch reversed and remanded.

Boyle & Priest and S. P. McChesney for appellant.

The court erred in giving and reading to the jury defendants' Instruction 5, because: (a) Said instruction conflicts with and is in contradiction with plaintiff's Instruction 4 submitting the humanitarian rule, and in effect nullifies and takes said rule out of the case. Larey v. Railroad Co., 64 S.W.2d 686. (b) Neither negligence nor contributory negligence is a defense to the humanitarian doctrine, and therefore had no place in the case. Hanlon v. Ry. Co., 104 Mo. 391; Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 676; Banks v. Morris, 302 Mo. 254. (c) Plaintiff having invoked the humanitarian rule in his Instruction 4, any negligence upon plaintiff's part under said rule is excluded. Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 675.

Ernest E. Baker for respondents.

(1) Plaintiff's Instruction 4 should not have been given to the jury, and plaintiff cannot complain that defendant's Instruction 5 conflicts with Instruction 4 because the evidence did not make a case for the jury against defendants under the humanitarian doctrine. Elkins v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; Phillips v. Henson, 30 S.W.2d 1065; Behen v. Transit Co., 186 Mo. 430; McCoy v. Home Oil & Gas Co., 60 S.W.2d 715; Burton v. Joyce, 22 S.W.2d 890. (2) The court should have sustained defendant Mary Genevieve Lynch's demurrer to the evidence at the close of plaintiff's case and at the close of all the evidence, and this judgment should not, therefore, be reversed. Klein v. Blackburn, 280 S.W. 1046.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Action to recover $ 10,817 for personal injury to plaintiff, loss of services, society and companionship of his wife, injured in same accident, and for special damages for medical and nursing attention to the wife and damages to the car owned and driven at the time by plaintiff. Verdict and judgment went for defendants and motion for new trial being overruled, plaintiff appealed.

The collision, between the automobiles, from which this cause arose, occurred on Tower Grove Avenue, St. Louis, January 13, 1929. Plaintiff alleged six grounds of negligence, but went to the jury on but three of these, viz.: (1) Excessive speed; (2) that defendants were negligent in attempting to pass another car going in the same direction and in so attempting, ran their car over and upon the wrong side of the street into collision with plaintiff's car; and (3) the humanitarian rule. The answer is a general denial, contributory negligence and a plea as follows: "That plaintiff saw, or by the exercise of the highest degree of care on his part could have seen, the southbound automobile being driven by defendant, James A. Lynch, in a position of imminent peril and danger of being collided with by plaintiff's automobiles being operated north on Tower Grove Avenue by plaintiff, in time thereafter, by the exercise of the highest degree of care on plaintiff's part and with the means at hand and with reasonable safety to plaintiff's automobile and the persons therein, to have stopped his said automobile, turned the same aside or sounded his horn or signaling device on plaintiff's said automobile and thus and thereby have avoided colliding with said southbound automobile, but that plaintiff negligently and carelessly failed to do so." The reply is a general denial.

Plaintiff, appellant here, assigns error only on defendants' Instruction No. 5, which follows: "The court instructs the jury that if you find and believe from the evidence that plaintiff was operating his automobile north on Tower Grove Avenue on the occasion mentioned in evidence and that said automobile collided with an automobile traveling south on Tower Grove Avenue and that prior to the time said automobiles collided, said southbound automobile was and became in a position of imminent peril and danger of being collided with and that plaintiff saw, or by the exercise of the highest degree of care on his part, could have seen said southbound automobile in such position of imminent peril and danger of being collided with in time thereafter, by the exercise of the highest degree of care on plaintiff's part and with the means and appliances at hand and with reasonable safety to plaintiff and his said automobile and the person therein, if you so find, to have turned his said automobile, if you find he could, and that plaintiff could thereby have avoided said collision, if you so find, and that plaintiff failed to turn his said automobile aside, if you find he did fail, and that such failure on plaintiff's part was negligent and that as a direct and proximate result of plaintiff's failure to so turn his automobile aside, said automobiles were caused to collide, then the court instructs you that plaintiff is not entitled to recover against defendants."

Plaintiff's Instruction No. 1 submitted primary negligence, and his Instruction No. 4 submitted the case under the humanitarian rule. Defendants say that there was no available evidence to support plaintiff's humanitarian instruction and that, for such reason, it should not have been given, and that he cannot, therefore, complain about their Instruction No. 5. Defendants requested and were given an instruction specifically on contributory negligence, and plaintiff makes no complaint on this instruction.

Three questions arise on this record, viz.: (1) Was there substantial evidence to support plaintiff's Instruction No. 4 submitting the cause under the humanitarian rule? and (2) if so, was defendant's Instruction No. 5 proper? and (3), can plaintiff, under the facts, recover against defendant, Mary Genevieve Lynch, under any theory? We rule the questions in the order stated.

I. Hereinafter, where we use the term defendant, we have reference to defendant, James A. Lynch, unless it otherwise appears. Plaintiff testified that about eight P. M., January 13th, with his wife and son, he was returning to his home from a visit to a friend; that between Folsom and Vandeventer avenues (east and west streets), he was driving north, on a slight upgrade, on Tower Grove Avenue, about three feet from the east curb; that snow and sleet were on the street; that about the middle of the block, a yellow cab was standing at a call box; that he was pulling out (to the left) to pass this cab, "when all at once I saw Mr. Lynch coming south from behind another automobile proceeding in the same direction;" that defendant "came right over on my side of the street and when he saw he was going to hit me he swung away and started to skid and skidded right on into me. He missed hitting me headon and hit me with the side of the car, kind of sideswiped me. I was driving 20 miles per hour. . . . The hind end of his car sideswiped my car;" that he first saw defendant's car when his (defendant's) lights "came from behind the other car. I estimate that when I first saw him coming from behind the other car over on my side of the road, I was about 20 or 25 feet away." And, as appears in an additional abstract, plaintiff testified that defendant's car was traveling better than forty "miles per hour." Plaintiff further testified that these cars (defendant's and the one he passed around) "were running in about the middle of the street;" that defendant pulled out "from behind this other automobile into my track and I couldn't get out of the way. . . . As soon as I saw him I put the brakes on and when the collision occurred I was standing still."

Fred Kracht, a witness for plaintiff, testified that he was sitting in his cab (the yellow cab mentioned by plaintiff) when he noticed two cars "coming south;" that "one was about fifteen feet behind the other. The one in front was a coupe or roadster, and the one behind it was a big car, a sedan. The big car was kind of zigzagging and as it got a little past me it swung around this other car. This car (plaintiff's) coming north was about forty feet down the street and as Mr. Lynch swung, his car skidded around and the back end hit Mr. Dilallo's car and it went across the street. I saw Dilallo's car before the collision because I was watching this car zigzag and turned to watch it. Mr. Dilallo's car was close to the curb on the east side. The collision took place on the east side of the street. When this big car swung around the coupe, it started skidding and hit this other car and finally wound up going across the street. I estimate the speed of the big car to be about twenty-five or thirty miles an hour. The other car, I believe, was going about twenty miles an hour. . . . From where I was sitting it looked like the back fender of this big car hit the front fender of the little car."

Plaintiff introduced a deposition of defendant, wherein he testified that he was driving south midway between Folsom and Vandeventer; that he saw plaintiff's car before the collision; that when he first saw plaintiff's car he (defendant) was "possibly fifty feet" from it; that ice and snow were on the street; that he was traveling downgrade (2 or 3%) at eight or ten miles per hour; that the lights on his car and on plaintiff's car were burning; that he did not skid; made no attempt to stop, but when he got in about twenty feet of plaintiff's car he "tried to pull over to the right;" that he, under the conditions and with safety to his passengers and himself, could have stopped his car in twenty feet.

The above contains all the evidence, offered by plaintiff, that is...