Foulks v. Lehman

• Decision Date: 04 June 1929
• Docket Number: No. 20602.,20602.
• Citation: 17 S.W.2d 994
• Parties: FOULKS v. LEHMAN.
• Court: Missouri Court of Appeals

17 S.W.2d 994

FOULKS v. LEHMAN.

No. 20602.

St. Louis Court of Appeals. Missouri.

June 4, 1929.

Rehearing Denied June 18, 1929.

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

"Not to be officially published."

Suit by Minnie Foulks against Philip A. Lehman. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions on condition of remittitur.

Leahy, Saunders & Walther, of St. Louis, for appellant.

E. J. Hullverson, of St. Louis, for respondent.

HAID, P. J.

This suit involved a pedestrian who was injured on January 4, 1927, by being knocked down and injured by an automobile owned by the defendant. There were four specifications of negligence in the amended petition as follows: (1) That the automobile was driven at a high, excessive, unreasonable, and dangerous rate of speed under the circumstances, and so as to endanger the lives and limbs of persons, and particularly plaintiff; (2) the omission of a signal or warning of the approach or movement of said automobile; (3) the negligent and careless failure and omission to swerve, slow down, or stop said automobile, so as to avoid colliding with said plaintiff, when defendant, his agent and servant, in the exercise of highest care would have done so, and did negligently and carelessly swerve said automobile so as to collide with plaintiff; (4) it set up the humanitarian doctrine. The answer to the amended petition was a general denial, coupled with a plea of contributory negligence. The reply was a general denial.

The plaintiff testified that on the day of the accident she was walking east on the north side of Locust street, and when she reached Eleventh street she looked north, and did not observe any vehicle approaching from that direction; that she then turned to look south, where a traffic officer was located, just as he blew his whistle to change the traffic to go east and west; that she then left the curb and proceeded east across the street, looking in the direction of the traffic officer, and had taken five or six steps when she was struck by the defendant's automobile coming from the north; that she heard no horn sounded, nor any signal warning her of the approach of the automobile; that she was struck on the left side, about the region of the ribs, toward the back, was stunned by the fall, but was not rendered unconscious; she then detailed her injuries and the effect they had upon her.

The traffic officer testified that at the time the accident occurred he had just signaled to change traffic to proceed east and west, and he saw defendant's machine about half a block north of the corner coming south pretty lively; that he did not hear any horn sounded before the accident; that he picked up the plaintiff, and upon inquiry was informed that she did not desire to go to the hospital, but did want to prosecute the driver; that he took her to the police station in the machine of one of the witnesses, but they stopped at the defendant's place of business, and the latter got into the machine and went to the station with them; that defendant acknowledged he owned the car, and had insurance, and would take care of it; that plaintiff was not thrown any distance; that the car stopped within a few inches or a foot after the impact; that he did not think it ran over 6 inches after the impact; that the center of the bumper came in contact with her; that the right-hand side of the car was 6 or 8 feet from the side of the street; that he did not think any cars were parked on the west side of Eleventh street; that when he picked plaintiff up the car was standing right at the pedestrian's crossing, out into Locust street.

Another witness testified that he was going north on Eleventh street, and reached Locust street just as the officer blew his whistle for traffic to proceed east and west; that he observed the defendant's automobile about 30 feet north of the crossing just as the plaintiff left the sidewalk; that there was nothing between plaintiff and defendant's automobile when he saw the latter 30 feet to the north; after the accident he proceeded north across Locust street and offered to take the plaintiff home, and she was put into his car. On cross-examination this witness testified that the accident happened about 3 or 4 feet south of the building line and about 6 feet from the curb, that an automobile such as defendant used, going 25 miles an hour, with four-wheel brakes, on a dry street, could be stopped within 18 inches.

Medical testimony was introduced as to the injuries suffered by plaintiff.

The chauffeur of the automobile testified that, when halfway between Locust street and the first street north (St. Charles street), he was traveling about 10 miles an hour; that when he approached Locust street he glanced at the traffic officer for the signal; that he slowed down and shifted gears, going into neutral, and just rolled up and glanced at the officer, who gave him the signal to go; that when he glanced around the plaintiff was in front of his car; that he was driving between 4 and 5 feet of the west curb, and as soon as he saw plaintiff he put his foot on the brake and his car came to a stop; that the car was a Cadillac sedan, with four-wheel brakes; that he did not have the lights on, because it was not dark enough; that the front end of his car came in contact just about 2 feet from the building line; that plaintiff was watching the officer; that there was no machine ahead of him as he came south; that plaintiff was about 4 feet from the west curb when she was struck; that he did not see plaintiff until he saw her in front of the car; that he knew people crossed at that point, and that they came from the sidewalk, but he did not watch the sidewalk at that time; that he was looking in front of him, and when he saw plaintiff she had stepped down, watching the officer; that he did look at the sidewalk when his car was about 10 feet north of the building line and saw nothing; that he did not blow his horn.

Another witness for defendant testified that traffic was going east and west at the time he saw plaintiff fall.

Another witness for defendant testified that he saw the traffic officer while waiting for a signal so he could cross the street; traffic was then going east and west; that no machines were parked on Eleventh street; and that the car which struck plaintiff was not going more than 5 miles an hour.

The defendant raises four questions in support of a reversal of the judgment in this case.

His first contention is that the court erred in not granting his instruction to withdraw from the consideration of the jury the theory of the humanitarian doctrine, on the ground that there is no evidence to sustain it. We think, however, that this contention must be ruled against the defendant. The evidence shows that before the plaintiff left the sidewalk she looked to the north and saw no approaching vehicle, and then turned her head to the south to watch the officer, who was directing traffic, to ascertain whether she might proceed eastwardly across the street, and finding the traffic was east and west, and while endeavoring to cross and oblivious to any danger, she was struck and injured. The evidence further shows that a witness placed defendant's machine some 30 feet north of the crossing at the time the plaintiff left the sidewalk; the chauffeur admits that he did not sound his horn, and that he did not see the plaintiff until she had stepped down off the sidewalk and in front of his machine. The chauffeur admits that there was nothing to obstruct his view, and therefore there was present the question of whether or not the chauffeur could, by the exercise of the degree of care required of him, have discovered the plaintiff in time to have avoided the accident.

Furthermore, the point where the accident occurred was a busy city street, and the plaintiff was proceeding along the crosswalk designed for the use of pedestrians in crossing the street, with traffic opened in the direction she was going and closed in the direction that the chauffeur was proceeding. Under these circumstances, the chauffeur was bound to observe greater caution than would be essential at a less busy corner, or one where traffic was not directed, because the police officer's direction of traffic of itself was notice to him that pedestrians might be expected to cross the street at that point. There was evidence, also, as to the distance within which a car such as defendant's could be stopped under the conditions present at the time and place of the accident, and evidence as to the distance in which it was actually stopped, from which it clearly appears that, if the chauffeur had looked, he would have discovered plaintiff's peril in ample time to have avoided striking her.

Defendant has cited a number of cases in support of his contention. We have examined each of those cases, but are of the view that those decisions have no application under the facts in the present case. Ikemeyer v. Stanford (Mo. App.) 2 S.W.(2d) 106, and cases cited; Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482.

The next point made is that the court erred in refusing to give an instruction requested which submitted the issue of plaintiff's contributory negligence. But this instruction was properly refused since contributory negligence of the plaintiff is no defense in a case under the humanitarian rule. Wilsch v. Gleiforst (Mo. App.) 259 S. W. loc. cit. 851; Hoff v. Wells (Mo. App.) 266 S. W. loc. cit. 1029; Schroeder v. Wells, 310 Mo. 642, 276 S. W. loc. cit. 64; Gould v. C., B. & Q. R. Co., 315 Mo. 713, 290 S. W. loc. cit. 139; Torrance v. Pryor (Mo. Sup.) 210 S. W. loc. cit. 433; Causey v. Wittig (Mo. Sup.) 11 S.W. (2d) loc. cit. 14.

Defendant also contends that the court erred in refusing to discharge the jury because of the questions propounded...