Freeman v. Berberich

• Decision Date: 20 April 1933
• Docket Number: 30321
• Citation: 60 S.W.2d 393,332 Mo. 831
• Parties: Leslie V. Freeman v. William Berberich, Doing Business under the Style of Berberich's Delivery, and Clyde Sims, Appellants
• Court: Missouri Supreme Court

60 S.W.2d 393

332 Mo. 831

Leslie V. Freeman v. William Berberich, Doing Business under the Style of Berberich's Delivery, and Clyde Sims, Appellants

No. 30321

Supreme Court of Missouri

April 20, 1933

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge.

Reversed and remanded.

Leahy Saunders & Walther, William, O'Herin and Lyon Anderson for appellants.

(1) The court erred in modifying appellant's instruction submitting the issue of negligence under the humanitarian doctrine for the reason that it injected antecedent negligence into the humanitarian case. Sullivan v. Mo Pac. Ry. Co., 117 Mo. 214; State ex rel. Fleming v. Bland, 15 S.W.2d 798; Griffin v. St. Louis Transfer Co., 193 S.W. 807; Henson v. Railroad Co., 301 Mo. 415; Royalty v. Rusk, 198 S.W. 473; Shumate v. Wells, 9 S.W.2d 632; Haley v. Railroad, 197 Mo. 15; McGee v. Railroad, 214 Mo. 530; Alexander v. Railway Co., 4 S.W.2d 888; Alexander v. Ry. Co., 327 Mo. 1012. (2) Where a person struck and injured by an automobile is aware of the approach of said automobile, a failure of the driver thereof to sound a warning cannot be the proximate cause of the injuries. De Wolf v. Stix, Baer & Fuller, 240 S.W. 1099; Peterson v. U. R., 270 Mo. 67; Gubernick v. U. R. Co., 217 S.W. 33. (3) The court erred in giving and reading to the jury Instruction 7 requested by defendant Sims. Lewis v. K. C. P. S. Co., 17 S.W.2d 359. (4) The court erred in giving and reading to the jury Instruction 5 given at the request of defendant Sims. Welsch v. Glieferst, 259 S.W. 850; Lewis v. Public Service Co., 17 S.W.2d 362; Edwards v. Lee, 147 Mo.App. 38. (5) Where one of the original parties to the cause of action on trial is dead, the other party to such cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him. Sec. 510, R. S. 1919; Leaveat v. Southern Ry., 266 Mo. 151; Burnes v. Polar Wave, 187 S.W. 145; Knickerbocker v. Athletic Tea Co., 285 S.W. 797; Lead & Zinc Co. v. Lead Co., 251 Mo. 721. (6) The verdict is excessive. Cincinnati, N. O. & T. P. Railroad Co. v. Ross, 212 Ky. 619; Carton v. Eyres, 117 Wash. 536, 201 P. 737; Polgar v. Kantor, 130 A. 732; Willets v. Railroad Co., 221 S.W. 65; Hinkle v. Railroad Co., 199 S.W. 227; Ulmer v. Farnham, 28 S.W.2d 113; Shuff v. Kansas City, 221 Mo.App. 505; Rigley v. Prior, 233 S.W. 828, 290 Mo. 10; Domineck v. Western Coal & Mining Co., 164 S.W. 567.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The modifying of defendant's instruction and giving it as modified was, in its effect, as matter of procedure, the same as the refusal of defendant's instruction as asked and the giving of another by the court, of its own motion, and if the refusal of the one asked was proper and the one given by the court of its own motion was not hurtful to the defendant, the latter has no just cause of complaint. Turner v. Butler, 253 Mo. 215. (2) The humanitarian doctrine proceeds upon the theory that the person injured is guilty of negligence at the time of his injury and that humanity exacts his protection notwithstanding his negligence. Hall v. Railroad Co., 219 Mo. 591; Gubernick v. United Rys. Co., 217 S.W. 33. (3) Plaintiff was not negligent as a matter of law (although the jury might have found him to have been so) because he failed, if so, to warn the driver of the danger of the situation. Smith v. Railroad, 9 S.W.2d 945. (4) Defendant Sims was not, by reason of the death of the truck driver, rendered incompetent by the statute (Sec. 1723, R. S. 1929) to testify as witness on behalf of plaintiff. Allen v. Boeke & Sons, 300 Mo. 601; Lowry v. Tivy, 69 N. J. L. 94. (5) Plaintiff was not an incompetent witness as between him and appellant except as to transactions which took place between him and the deceased driver. Burns v. Polar Wave, 187 S.W. 147.

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

OPINION

HYDE

This is an action for personal injuries sustained by plaintiff when the automobile in which he was riding, driven by defendant Sims, collided with a truck owned by defendant Berberich. Plaintiff obtained a judgment for $ 10,000 against both defendants.

Plaintiff's petition stated a number of charges of primary negligence and also a charge of negligence under the humanitarian doctrine against defendant Berberich. It made similar charges of negligence against defendant Sims, whose answer was a general denial. The answer of defendant Berberich, in addition to a general denial, made a number of charges of negligence against defendant Sims which it stated were the proximate cause of plaintiff's injuries; stated that plaintiff and defendant Sims were engaged in a joint enterprise; and alleged contributory negligence of plaintiff in permitting defendant Sims, without protest or warning, to attempt to pass another car at the top of a hill and on a curve. The facts which plaintiff's evidence tended to show were, as stated in plaintiff's brief, as follows:

"Defendant Sims intended to go from St. Louis to Festus to be initiated in a branch of some veterans' organization. Plaintiff also desired to go to Festus for a like purpose, and was invited by Sims to ride in the latter's car and did so. After the initiation proceedings and about midnight or later, Sims, with plaintiff and two other gentlemen in his car, started to drive to St. Louis, and when between Pevely and Barnhart the car in which they were riding collided with defendant's truck. There was a certain car, referred to by plaintiff's witnesses as a 'Whippet,' proceeding northwardly ahead of the car in which Sims and plaintiff were riding and moving slowly. Sims attempted to drive around the Whippet and pass it on its left. Just before or about the time of making the attempt to pass the Whippet, Sims and plaintiff observed two automobiles, which were distinguished only by their headlights, approaching some six or seven hundred feet to the north. Plaintiff and his witnesses described the movements of the two headlights as, that one passed the other and the one which presently collided with him, swerved first to the left and then back to the right, running all the time at a high rate of speed, described by some of the witnesses as from fifty to sixty miles per hour, and without diminishing its speed collided headon with Sims' car while the latter was attempting to pass around the Whippet.

"Both plaintiff and Sims testified that defendant's truck, while approaching and before the collision, failed to give any signal or warning of its approach and movement, or at least testified that they heard none."

The evidence further "shows that Sims turned out to pass the car in front of him when he was about twenty to thirty feet behind said car, and that he continued on the left side of the pavement until he had overtaken said car and reached a position where his front wheels were about even with the driver's seat of the car opposite, when he put on his brakes and slowed down, and an instant later collided with appellant's truck. At the time of the collision the front wheels of Sims' car was about even with the rear wheels of the Ford or Whippet."

On the part of defendant Berberich it was shown by the occupants of the car, referred to as the Whippet (it was a Reo) which defendant Sims attempted to pass just before the collision, that their car was traveling up a hill at a speed of from fifteen to twenty miles per hour; that near the top of the hill defendant Sims' car pulled around them from behind; that about the same time the lights of defendant Berberich's truck "flashed up from the other side of the hill;" that defendant Sims' car was on the wrong side of the road at the time of the collision; and that after the accident one of the occupants of Sims' car stated that they were going sixty miles per hour. Defendant Berberich's automobile was a delivery truck which was being used to deliver newspapers. He said that it was equipped with a governor which prevented it from running over forty-five miles per hour. At the time of the collision it was being driven by his brother, who died prior to the trial.

Both defendants, after their respective motions for new trial were overruled, appealed from the judgment in favor of plaintiff. Defendant Sims and plaintiff have entered into a stipulation "that whatever judgment and decision, whether of affirmance or reversal, may be entered by the court upon the appeal of appellant Berberich, a like decision and judgment may be made and entered as against appellant Sims."

I. Defendant Berberich, as appellant, assigns as error the action of the court in giving and refusing instructions, particularly the instruction given by the court, which concerned his liability under the humanitarian rule, after its refusal in the form he requested it. The instruction which the court gave was, as follows:

"The court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in the evidence defendant's, William Berberich's, automobile was being driven at a reasonable rate of speed and that, after the agent and servant of said defendant Berberich in charge of and operating said defendant's automobile saw, or by the exercise of the highest degree of care could have seen, the automobile in which plaintiff was riding when it came into a position of imminent peril of being struck said agent and servant of said defendant could not, by the exercise of the highest degree of care, and with reasonable safety to said defendant's automobile and its occupants, have stopped, or slackened the speed of, or swerved said automobile, or have given plaintiff warning of its approach, in time to have avoided colliding with the automobile in which plaintiff was riding,...