Fisher v. Williams

• Decision Date: 13 July 1959
• Docket Number: No. 46989,No. 2,46989,2
• Citation: 327 S.W.2d 256
• Parties: Emery FISHER, Plaintiff (Appellant), v. Leo Eugene WILLIAMS, Defendant (Respondent)
• Court: Missouri Supreme Court

Page 256

327 S.W.2d 256

Emery FISHER, Plaintiff (Appellant), v. Leo Eugene WILLIAMS, Defendant (Respondent).

No. 46989.

Supreme Court of Missouri, division No. 2.

July 13, 1959.

Rehearing Denied Sept. 14, 1959.

Schomburg & Marshall, Richard M. Marshall, Glen C. Schomburg, Northcutt Coil, St. Louis, for plaintiff (appellant).

F. X. Cleary, C. M. Kirkham, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent.

BARRETT, Commissioner.

Shortly after five o'clock on the afternoon of August 19, 1954, plaintiff, Emery Fisher, instead of walking to a regular pedestrian crosswalk or to a light-controlled street intersection, attempted to walk across Gravois in the middle of the block. There are six traffic lanes on Gravois, one on each side of the street for parked vehicles and four lanes, two on each side of a white line, for moving vehicles. When Fisher attempted to cross the street from west to east the red stop light was on at Delor and cars were stopped or parked three abreast in the west traffic lanes. Fisher walked between the stopped automobiles, 'zigzagged' through them he said, at a brisk walk, other witnesses said that he ran or trotted between the stopped vehicles. As he got to the white center line of the street, perhaps a step or two past the white line, he saw 'something coming on the right' and he 'stepped backward approximately two steps * * * tried to pull back to the white center line,' and was struck by the defendant's northbound automobile as it traveled in the third or inside traffic lane. In this action to recover $75,000 damages for his resulting personal injuries a jury returned a verdict in favor of the defendant, Williams, and the plaintiff, Fisher, has appealed from the judgment entered upon the verdict.

Williams claims that the evidence adduced by Fisher was insufficient to support the inference and finding of negligence under the humanitarian doctrine, and that therefore the judgment should be affirmed. But inasmuch as we have come to the conclusion that Fisher is not entitled to a new trial for either of the ten reasons assigned here it is not necessary to determine whether his evidence was sufficient to support a finding of Williams' negligence and liability within the meaning of the humanitarian doctrine. And conversely in this connection Fisher claims that the trial court erred in refusing his motion for a directed verdict for the reasons that under his evidence and the defendant's evidence and admissions his case was established and 'removed the issues of liability from the province of the jury.' He analyzes the evidence in detail and urges that it made 'a strong case' of liability under the humanitarian doctrine; he elaborately develops eight separate points which he says conclusively establish his case and, 'Therefore, when, as here, plaintiff made a submissible case through his own and his witnesses' testimony and the defendant 'by his own evidence also establishes plaintiff's claim,' (Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282), the liability issue is resolved and as far as liability is concerned there is nothing further for the jury to decide.'

In making his contention the appellant has not carefully considered the Rogers case or precisely noted what was involved in the appeal and what the opinion could and in point of fact did decide. The opinion employs some of the language ascribed to it, but, in the first place, it was adopted by the court en banc by one concurring judge, four concurrences in result and two dissents. In the second place the opinion notes the general rule under the jury system, and the fact that it is only in 'unusual situations' that verdicts may be directed in favor of parties upon whom the burden of proof and the burden of persuasion rests; as, for example, where the defendant by his pleadings or by counsel in open court expressly admits the plaintiff's claim. Research has revealed but a single instance in which a trial court appropriately and in fact directed a verdict in favor of a plaintiff in an ordinary negligence case and that case, like the Rogers case, a collision between two trains, was submitted upon a written 'stipulation.' But in the third place, in the Rogers case, the court was considering whether an instruction in a Federal Employers' Liability Act (45 U.S.C.A. Sec. 51 et seq.) case which in effect directed a verdict was erroneous. This fact and point is illustrated by a case in which the court was considering a defendant's instruction which in effect directed a verdict, Hampe v. Versen, 224 Mo.App. 1144, 32 S.W.2d 793. But in the fourth place, whatever the language in the Rogers case and despite the instruction, the case was in point of fact submitted to the jury. And finally, in that F.E.L.A. case, there was not and could not be much dispute or doubt that some of the defendant railroad's employees were negligent when they ran a train through signals into the rear of another train. In this case Fisher's right to recover and Williams' liability depended solely on oral evidence, its weight and credibility, and the drawing of delicate and doubtful inferences, there were no conclusive admissions by Williams or his counsel and he was entitled in any event to have the jury pass upon the credibility of the plaintiff's evidence 'even though he should offer no evidence himself.' Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559; Nichols v. Bresnahan, 357 Mo. 1126, 212 S.W.2d 570. There was in this case as there was in Nichols v. Bresnahan, a case in which a pedestrian crossing Natural Bridge Road was struck by an automobile, conflicting evidence in support of conflicting theories as to the precise cause of the accident and injury and upon this record and in these circumstances the plaintiff was certainly not entitled to a directed verdict.

Somewhat in connection with the submission of the merits of his case, the plaintiff urges that he is entitled to a new trial because of the court's giving instructions three and four. Instruction three is a short one-sentence instruction abstractly defining the term 'position of the imminent peril.' Instruction four, in substance, told the jury that if at the time the plaintiff entered a position of imminent peril it was 'then too late for the defendant to have prevented the accident by stopping, slackening his speed, changing the course of his automobile, or by sounding a signal or warning, then, and in such event, plaintiff is not entitled to recover, * * *.' It is tacitly conceded that these instructions are correct abstract statements of the law; it is urged, however, that they are prejudicially erroneous in that they do not include the element of 'plaintiff's discoverability.' It is said, in effect, that they abstractly include and cover 'discovered peril' but ignore the significant element of 'discoverable peril.' By reason of 'the singular theory upon which the plaintiff based his case' (the humanitarian doctrine), it is urged that the defendant was bound in any hypothesis to factually as well as abstractly include and cover the element of discoverable peril.

Actually these instructions were not in point of fact, either abstractly or factually, true converse instructions, they did not purport in reverse order to cover the plaintiff's case as a whole as was the fact with the instructions in Teague v. Plaza Express Co., 356 Mo. 1186, 205 S.W.2d 563. For a truly converse instruction concerning the subject of discoverable peril, see Johnson v. Hurck Delivery Service, Inc., 353 Mo. 1207, 187 S.W.2d 200. Furthermore, as was pointed out, the trial court in the Teague case sustained the plaintiff's motion for a new trial, while in this case the court considered the alleged prejudicial effect of the instructions and overruled the plaintiff's motion. In Colvin v. Mills, 360 Mo. 1181, 232 S.W.2d 961, the instruction complained of plainly covered, abstractly and hypothetically, 'discovered peril' and since in that case the sharp and determinative issue was discoverable peril (whether the defendant could have seen the plaintiff as she walked from behind a parked automobile in the middle of the block across Grand Avenue), it was held that the instruction was erroneous and compelled the granting of a new trial because it did not, either factually or abstractly, cover the element of discoverable peril. But these instructions do not, either expressly or tacitly, specifically deal with either 'discovered' or 'discoverable' peril, the words are not employed and the hypothetical facts do not purport to cover that phase of the humanitarian doctrine. They, particularly instruction four, deal only with the defendant's ability to avoid hitting the plaintiff after his peril arose, whether it was discovered or discoverable, and as that subject was clearly defined and covered in the plaintiff's instructions, consequently these instructions could not have confused the jury. Instruction three in defining 'imminent peril' is identical with the instructions in Wallace v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 282, 77 S.W.2d 1011, and Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562, and in those cases it was held that the instructions were not confusing or misleading and did not unduly limit the danger zone. Instruction four is a rescript of the instructions complained of in Welch v. McNeely, Mo., 269 S.W.2d 871, and Fantin v. L. W. Hays, Inc., Mo., 242 S.W.2d 509, and in those cases it was pointed out that the instructions did not, either in express terms or by implication, eliminate discoverable peril. As to that subject the instructions assumed the applicability of the plaintiff's emphatic hypothesis 'that the defendant saw, or in the exercise of the highest degree of care could have seen plaintiff in such position of imminent peril.'

Also in connection with the submission of his case on its merits the plaintiff claims that the court erred in permitting defendant's counsel ...