Elkin v. St. Louis Public Service Co.

• Citation: 74 S.W.2d 600,335 Mo. 951
• Decision Date: 18 September 1934
• Docket Number: 32080
• Parties: Clarence Elkin v. St. Louis Public Service Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

74 S.W.2d 600

335 Mo. 951

Clarence Elkin v. St. Louis Public Service Company, a Corporation, Appellant

No. 32080

Supreme Court of Missouri

September 18, 1934

Rehearing Denied September 18, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge; Opinion filed at May Term, 1934, July 17, 1934; motion for rehearing filed; motion overruled at September Term, September 18, 1934.

Reversed.

T E. Francis, B. G. Carpenter and Allen, Moser & Marsalek for appellant.

(1) Under plaintiff's testimony, showing that the car was about a block, 200 or 250 feet, away when he passed the building line, and that it had a high rate of speed -- far in excess of ten miles an hour -- before he entered, or was about to enter, a "position of imminent peril," with no testimony in the record as to the distance in which a car running at any such high rate of speed could have been stopped, or tending to show that its speed could have been so slackened, after the peril arose, as to avoid the collision, no recovery may be had under the humanitarian rule on the theory that defendant's motorman was remiss in failing to avert the collision by stopping the car or slackening its speed, after plaintiff was in "imminent peril." State ex rel. Fleming v. Bland, 322 Mo. 572; State ex rel. Vulgamott v. Trimble, 300 Mo. 109; Banks v. Morris & Co., 302 Mo. 267; Lackey v. United Ry. Co., 288 Mo. 143; Beal v. Ry. Co., 256 S.W. 733; Keele v. Railroad Co., 258 Mo. 62. (2) A situation of "imminent peril" is the basic fact of the humanitarian doctrine. No duty whatever arises under that doctrine unless and until a situation of imminent peril comes into existence. And when such peril arises, the doctrine seizes upon the situation as it then exists, without regard to antecedent negligence, if any, and requires the defendant to thereafter avert the threatened injury if he can do so by the exercise of the degree of care required of him, with the means at his command. State ex rel. Fleming v. Bland, 322 Mo. 572; State ex rel. Vulgamott v. Trimble, 300 Mo. 109; Banks v. Morris & Co., 302 Mo. 267; Ziegelmeier v. Ry. Co., 51 S.W.2d 1027; Dey v. United Rys. Co., 140 Mo.App. 468. "Imminent peril" is peril "immediately impending." It "does not mean remote, uncertain, contingent, nor (for the person affected) avoidable danger." Ziegelmeier v. Ry. Co., 51 S.W.2d 1029; Banks v. Morris & Co., 302 Mo. 273. (3) In view of plaintiff's positive testimony as to the slow speed of his truck -- four or five miles an hour -- and his ability to stop it almost instantly -- in two feet -- he did not enter the danger zone, was not in or about to enter a "position of imminent peril," until he was almost upon the track. Beal v. Ry. Co., 256 S.W. 737; Tannehill v. Railroad Co., 279 Mo. 173; State ex rel. Frisco Ry. Co. v. Reynolds, 289 Mo. 491; Petty v. Railroad Co., 179 Mo. 666; Guyer v. Railroad Co., 174 Mo. 351; Schmidt v. Railroad Co., 191 Mo. 233; Keele v. Railroad Co., 258 Mo. 80. (4) In a situation such as is shown by plaintiff's testimony a motorman, seeing a motor vehicle so slowly approaching the track, may rightfully assume that it will not be negligently and heedlessly driven thereon in front of the oncoming car, and is not under a duty to begin to stop until it appears to him, as a reasonably prudent motorman, that the driver thereof is not going to seasonably stop, but is intent upon crossing and is in the very act of placing himself in a position of "imminent peril." Beal v. Ry. Co., 256 S.W. 733; State ex rel. Frisco Ry. Co. v. Reynolds, 289 Mo. 491; Lackey v. United Rys. Co., 288 Mo. 143; Markowitz v. Met. St. Ry. Co., 186 Mo. 350; Guyer v. Railroad, 174 Mo. 344; Schmidt v. Railroad Co., 191 Mo. 233. (5) A recovery under the humanitarian rule cannot rest upon pure speculation and conjecture. State ex rel. Vulgamott v. Trimble, 300 Mo. 92; Ziegelmeier v. Ry. Co., 51 S.W.2d 1027; Miller v. Wilson, 288 S.W. 997; Goodson v. Schwandt, 318 Mo. 666. (6) And since plaintiff pleaded that the car was being operated at a high, excessive and dangerous rate of speed, and testified that the car was a block away when he passed the building line, making it necessary for it to have had an average speed of eight or ten times that of the truck, and that it was going twenty-five or thirty miles an hour when forty or forty-five feet from the point of collision, he is bound by his pleadings and his testimony and cannot utilize and rely upon inconsistent and repugnant testimony of defendant's motorman that the car was proceeding at only ten miles per hour, and recover under the humanitarian rule on the theory that going at that rate of speed it could have been stopped or its speed slackened, after the peril became imminent, in time to avert the collision. State ex rel. Weddle v. Trimble, 52 S.W.2d 868; Graefe v. Transit Co., 224 Mo. 265; Behen v. Transit Co., 186 Mo. 441; Murray v. Transit Co., 176 Mo. 190; McCoy v. Home Oil & Gas Co., 60 S.W.2d 724; Long v. Binnicker, 63 S.W.2d 831.

Everett Hullverson and Staunton E. Boudreau for respondent.

(1) Defendant did not stand on this demurrer to the evidence, but introduced evidence on its own behalf, and thereby waived any benefit of this instruction in the nature of a demurrer to the evidence. (2) Defendant elected not to stand on this instruction in the nature of a demurrer to all the evidence. Plaintiff thereupon submitted his case to the jury on the single assignment of negligence under the humanitarian doctrine by plaintiff's given Instruction 1 and defendant elected to join plaintiff in the submission to the jury of the issue of negligence under humanitarian doctrine and thereby waived any benefit of its requested instruction in the nature of a demurrer to all the evidence, and is estopped to complain here that the issue of negligence under the humanitarian doctrine was not for the jury. Torrance v. Pryor, 210 S.W. 433; Hoelker v. American Press, 296 S.W. 1008; Kirkpatrick v. Am. Creosoting Co., 27 S.W.2d 1000.

OPINION

Frank, J.

Action to recover damages for alleged personal injuries. Judgment for plaintiff and defendant appealed.

The petition contained five assignments of negligence, four of which charged primary negligence, and the fifth charged negligence under the humanitarian doctrine. The case was submitted to the jury under the humanitarian doctrine alone, and a recovery for plaintiff was predicated upon a finding by the jury that defendant could have avoided the collision by stopping the street car, or by slackening the speed thereof, or by giving warning of its approach.

The pertinent facts will be stated in connection with the question discussed.

Appellant's first contention is that the court erred in refusing to give its peremptory instruction directing a verdict for defendant. Respondent counters by contending that appellant waived its right to question the sufficiency of the evidence to make a case under the humanitarian doctrine, by failing to stand on its demurrer to the evidence, and by joinder with plaintiff in submitting the case to the jury under that doctrine. Torrance v. Pryor, 210 S.W. 430, 432-3, is cited in support of the alleged waiver. In the Torrance case plaintiff alleged both primary and humanitarian negligence. A general demurrer to the evidence was tendered and overruled, and then both plaintiff and defendant requested and received instructions submitting the case to the jury under the humanitarian doctrine. We held in that case that defendant was estopped from contending on appeal that the evidence was not sufficient to make a case under the humanitarian doctrine.

We do not agree with either the reasoning or the conclusions reached in the Torrance case on the question of waiver. Our understanding is that a general demurrer to the evidence challenges the sufficiency of the evidence to make a case for the jury under any theory of liability alleged in the petition. Indeed, the Torrance case so holds. On that subject, the opinion in that case says:

"Here the demurrer challenged the whole case, and the evidence upon all of the several alleged grounds of negligence."

It is settled law that where a defendant, by general demurrer questions the sufficiency of the evidence to make a case for the jury, and that demurrer is overruled, the defendant does not waive the right to challenge the adverse ruling on the demurrer by thereafter requesting and receiving instructions the converse of those given for plaintiff. This is so because such a submission on the part of defendant is not voluntary but is forced by the adverse ruling on the demurrer to the evidence. [Williams v. St. Louis Public Service Co., 335 Mo. 335, 73 S.W.2d 199; Kenefick-Hammond Co. v. Fire Insurance Society, 205 Mo. 294, 103 S.W. 957.] The rule is the same whether the petition alleges one or many grounds of recovery. The Torrance case holds that a different rule applies in a case where the petition alleges more than one ground of recovery. In that case the petition counted on both primary and humanitarian negligence. A general demurrer to the evidence was overruled. Plaintiff submitted the case to the jury under both theories of negligence. Defendant requested and was given an instruction on the humanitarian doctrine, the converse of that given for plaintiff. On appeal defendant insisted that no case was made under the humanitarian doctrine. The opinion holds that since the demurrer to the evidence in the court below was not a specific one, and did not specifically challenge the sufficiency of the evidence under that particular theory of the case, defendant's act in submitting that theory of the case by instructions estopped it from asserting that such theory was not in the case. Of course, if the defendant in that case had...