Evans v. Klusmeyer
| Decision Date | 03 December 1923 |
| Citation | 256 S.W. 1036,301 Mo. 352 |
| Parties | BESSIE M. EVANS, Appellant, v. EDWARD A. KLUSMEYER |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court; Hon. John W Calhoun, Judge.
Reversed and remanded.
Charles E. Rendlen and John A. Hope for appellant.
(1) The ordinance limiting the speed of automobiles to eight miles an hour in business portions of the city has been upheld by this court. City v. Hammond, 199 S.W. 411. See, also Varley v. Columbia Taxicab Co., 240 S.W. 218; Freeman v. Green, 186 S.W. 1166; City of Windsor v. Bast, 199 S.W. 722; Young v. Dunlap, 195 Mo.App. 119; Schinogle v. Baughman, 228 S.W. 897. All the evidence, even defendant's own testimony, showed that the accident occurred in a business portion of the city and that defendant was running his machine at a speed greatly in excess of eight miles an hour. Defendant himself testified that he came down Delmar at twenty miles an hour; that, on coming to, or within about five feet of, the west line of De Baliviere, with plaintiff seventy feet in front of him, he slowed down to fifteen miles an hour; and that he struck plaintiff running at a speed of twelve miles an hour. Clearly, he was violating the ordinance. It was negligence per se. Varley v. Columbia Taxicab Co., 240 S.W. 222; Kelley v. Railroad, 75 Mo. 138; Bluedorn v. Railroad, 121 Mo. 258; Cabanne v Car Co., 178 Mo.App. 732; Raymen v. Galvin, 229 S.W. 749. Therefore, the learned trial judge erred in refusing plaintiff's first instruction, which was predicated on the ordinance. (2) The trial court then denied plaintiff the right to have the jury pass upon whether she was entitled to recover under "the humanitarian doctrine." This was set up in her petition. A good case on this phase of the matter was made out by the evidence, particularly defendant's own testimony on cross-examination, showing that after he saw plaintiff in the perilous position (due, as he claimed, to her own carelessness), he could have easily brought his automobile to a complete standstill at the crossing in question within less than the space of anywhere from forty to seventy feet, which intervened between the machine and her, and thereby have avoided injuring her. Despite these facts, the learned trial judge refused the instruction submitted by plaintiff on the humanitarian theory, although it is in approved form. Refusal of it was error. Deitring v. Transit Co., 109 Mo.App. 524, 548; Raymen v. Galvin, 229 S.W. 749. It is axiomatic that if the evidence on a defendant's side tends to support a theory upon which plaintiff can recover, then plaintiff is entitled to have that theory submitted to the jury in the instructions. Instructions should be predicated of all the issues raised by the pleadings and supported by the evidence. 11 Ency. Plead. & Prac. pp. 159, 169, 170, 181 and top 182. However lacking in support of the humanitarian theory plaintiff's evidence may have been, as the learned trial judge seemed to have regarded it, defendant's testimony supplied it. Plaintiff was entitled to have the full benefit of his testimony along this line, and the instruction (on humanitarian doctrine) should have been given. Clark v. Hammerle, 27 Mo. 55, 71 (see par. 3, Syllabus); Sawyer v. Drake, 34 Mo.App. 472, bot. p. 478 and top p. 479; Chappell v. Allen, 38 Mo. 213, 222; Roysdon v. Trumbo, 52 Mo. 38; Siegrist v. Arnot, 10 Mo.App. 209. (3) It necessarily follows that Instructions 8, 9, 10, 11 and 12, given for defendant, were each erroneously given; this for the reason that they overlook the duty of defendant under the so-called numanitarian or last-chance doctrine. Hovarka v. Transit Co., 191 Mo. 441, 456; Deitring v. Transit Co., 109 Mo.App. 524, 550. (4) The misbehavior of the foreman of the jury requires reversal of the judgment and a new trial. See Peppercorn v. Black River Falls, 89 Wis. 38; 27 R. C. L. pp. 901-902; State v. Sanders, 68 Mo. 202, 205; Perry v. Bailey, 12 Kan. 539; Rush v. St. Paul Railroad, 70 Minn. 5; Twaddle v. Mendenhall, 80 Minn. 177; Pierce v. Brennan, 83 Minn. 422; Hefron v. Gallupe, 55 Me. 563; Harrington v. Worcester Railroad Co., 157 Mass. 579; Hempton v. State, 111 Wis. 127; Mattox v. United States, 146 U.S. 140, 36 L.Ed. 917; Stampofski v. Steffens, 79 Ill. 303; Winslow v. Morrill, 68 Me. 362; Helme v. Kingston, 8 Kulp, 221; State v. Perry, 121 N.C. 533; People v. Tyrell, 3 N. Y. Crim. Rep. 142; Eastwood v. People, 3 Park Crim. Rep. 25; Carside v. Ladd Watch Case Co., 17 R.I. 691; Woodbury v. Anoka, 52 Minn. 329; Bowler v. Washington, 62 Me. 302; Deacon v. Shreve, 22 N. J. L. 176; Tyrrell v. Bristow, 1 Alcock & N. 398; Ortman v. Union Pac. Ry. Co., 32 Kan. 419; Warner v. State, 56 N. J. L. 686.
Taylor R. Young and Marsalek & Stahlhuth for respondent.
(1) Plaintiff's instruction submitting violation of the speed ordinance, was fatally defective in failing to require a finding that the violation was the direct cause of plaintiff's injury; the instruction merely requiring the jury to find "that said negligence directly contributed to cause the injury." It confuses the idea of negligence of defendant as the sole cause, and contributory negligence of plaintiff. In a case where the defense of contributory negligence looms large, as it does in this record, this instruction would have been especially wrong and harmful. Lackey v. United Rys. Co., 288 Mo. 146; Hof v. Transit Co., 213 Mo. 445; Krehmeyer v. Transit Co., 220 Mo. 639; Gale v. Mill Co., 159 Mo.App. 653; Wren v. Suburban Motor Transp. Co., 241 S.W. 469; Moon v. Transit Co., 247 Mo. 227, 233; Wilson v. Railways Co., 142 Mo.App. 676; Green v. Railways Co., 165 Mo.App. 14. (2) The court properly refused plaintiff's instruction on the humanitarian doctrine. The record is devoid of any evidence showing that the automobile could have been stopped and the accident averted, after it appeared that plaintiff was in danger. Lackey v. Rys. Co., 288 Mo. 143. Where the only evidence as to the distance within which the vehicle could be stopped is given by defendant, and his evidence shows that the vehicle was stopped as soon as possible after the plaintiff's danger became apparent, there is no case for the jury on the humanitarian doctrine. Wynn v. Undertaking Co., 274 Mo. 593; Bibb v. Grady, 231 S.W. 1020; Ward v. Fessler, 252 S.W. 670; Kalinowsky v. Viermann, 211 S.W. 723. The last part of the instruction in question states that negligence on plaintiff's part is not a defense, followed by a statement that the burden is on defendant to show that plaintiff was guilty of contributory negligence, and unless defendant has so proven, "then you should find for plaintiff on that point." The instruction was misleading and confusing in its reference to the burden of proof as to contributory negligence, and would have given the jury the impression that they could find for plaintiff, under the instruction, if they found merely that she was without fault. Rosemann v. United Rys. Co., 197 Mo.App. 337, 343. (3) Defendant's Instructions 8, 9, 10, 11 and 12, submitting the defense of contributory negligence were properly given. The evidence did not make out a case under the humanitarian theory. Authorities above. The court, at plaintiff's request, gave instructions which submitted alleged acts of primary negligence on defendant's part. Under these circumstances, defendant was entitled to have the jury instructed as to contributory negligence of plaintiff. Derrington v. City, 186 S.W. 561; Stevens v. City, 185 Mo.App. 464. (4) Defendant's instruction did not enlarge the issue as defined to the jury in plaintiff's instructions, and, therefore, plaintiff is in no position to complain. Hay v. Worcester, 199 S.W. 139; Quinn v. Railroad, 193 S.W. 933; Harriman v. Dunham, 196 S.W. 445; Ingle v. Sov. Camp, 204 Mo.App. 597; Costello v. City, 280 Mo. 593; Vogelsang v. Bd. of Ed., 231 S.W. 645. (5) The action of the trial court in refusing to grant a new trial on account of the matter alleged in an affidavit of a juror who did not sign the verdict was proper. The affidavit could not be considered by the court for any purpose, under the law, and even if the affidavit had been proper evidence on the subject, the matter was one within the court's discretion. Roth v. City of St. Joseph, 180 Mo.App. 381; Williamson v. Mullins, 180 S.W. 395; Job's Admr. v. Weaver, 77 Mo.App. 671.
Walker, J. All concur; David E. Blair, P. J., in paragraphs 1 and 2 and the result.
This suit was brought by appellant in the Circuit Court of the City of St. Louis for injuries received by her in being run down by an automobile driven by the respondent. Upon a trial there was a judgment for the respondent, from which an appeal was perfected to this court.
On the evening of November 27, 1918, the appellant, in company with her mother and an uncle, was about to cross to the north side of Delmar Avenue. Before doing so, while yet on the sidewalk they looked up and down the avenue and listened for the approach of vehicles. Neither seeing nor hearing anything to indicate that the street was not clear they started to cross it. When they were about half way across the appellant was run down and struck by respondent's automobile, which it is admitted by respondent was running at the speed of twenty miles an hour. It is a business section of the city at the point where the accident occurred, which was at the intersection of Delmar and De Baliviere avenues, and the speed of automobiles, as in other business sections, is there limited by ordinance to eight miles per hour. The respondent, testifying in an argumentative manner, states that when he first saw the appellant and those with her they were on the sidewalk on the east side of De Baliviere and he was about thirty-five feet from them; ...
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