Goehring v. Beltz

• Decision Date: 05 March 1929
• Docket Number: No. 20505.,20505.
• Parties: GOEHRING v. BELTZ et al.
• Court: Missouri Court of Appeals

14 S.W.2d 502

GOEHRING v. BELTZ et al.

No. 20505.

St. Louis Court of Appeals. Missouri.

March 5, 1929.

As Modified on Denial of Rehearing March 20, 1929.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Rubey Goehring against Elizabeth Beltz and another. Judgment for plaintiff against named defendant, and named defendant appeals. Reversed and remanded.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

E. P. Walsh, Mark D. Eagleton, and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff on September 2, 1923, in a collision which occurred on Gravois road, in St. Louis county, between an automobile driven by one Heider, in which plaintiff was riding as a guest or invitee, and one owned and operated by defendant Elizabeth Beltz. Originally, Lettie M. Beltz was named as a codefendant in the case, but it appears that at the close of all the evidence plaintiff voluntarily dismissed as to her. The trial proceeded, resulting in the return of a verdict in favor of plaintiff, and against defendant Elizabeth Beltz, hereinafter referred to as defendant, in the sum of $3,500; and, from the judgment rendered, the latter, after the overruling of her motion for a new trial, has duly appealed.

In the submission of her case to the jury, plaintiff abandoned all the assignments of primary negligence contained in her petition, and chose to rely wholly upon negligence under the humanitarian doctrine, based upon defendant's failure to have swerved her automobile so as to have avoided the collision, after she saw, or by the exercise of due care could have seen, that plaintiff was situated in a position of imminent peril and danger.

The answer filed by defendant was in the form of a general denial.

Gravois road, for the purposes of this opinion, may be considered as running from east to west, and was shown to have been paved with a strip of concrete estimated as being 18 feet in width. All parties agreed that Heider and plaintiff were driving towards the west, and that defendant was coming east; but, save for this, the testimony in regard to the salient facts of the case presented such an irreconcilable conflict between the parties as to be incapable of justification or excuse upon the ground of honest mistake.

The evidence for plaintiff, viewed in the light tending most favorably to support a recovery by her under the theory submitted, would seem to indicate that Heider was driving slowly along the north or right-hand side of the road; that defendant was approaching slowly near the middle of the road; that, when she was not more than 24 feet away from Heider's car, she turned to her left to pass an automobile about four car lengths ahead of her; that, in an attempt to avoid a collision, Heider turned to the right as far as he could, until only his left wheels remained on the concrete; and that defendant's left front wheel struck Heider's left rear fender and wheel, pushing his car to the north, and causing plaintiff to fall through the door, and to be injured.

Defendant's evidence, to the contrary, was to the effect that she was driving in a continous line of traffic along the south side of the road, at a speed of 10 miles an hour; that she observed Heider's car approaching on the north side of the road, at a speed of 30 or 35 miles an hour; that, when Heider's car was within only 10 feet of her own, he suddenly, and without warning, turned to his left, without decreasing his speed, for the purpose of passing a car, either parked entirely upon, or else slowly pulling out upon, the concrete immediately in front of him; and that she tried to swerve her car to the right, but had no opportunity to do so in the instant of time between the first appearance of danger and the collision itself.

However the collision may have happened, and whatever the speed of the cars may have been, the evidence was uncontradicted that the force of the impact was such that two of the spokes in the wheel on Heider's car were broken, while the wheel on defendant's car was completely demolished, permitting the axle to drop down upon the pavement.

At the close of the whole case, defendant requested a peremptory instruction in the nature of a demurrer to the evidence, as well as specific withdrawal instructions directed to each and every assignment of negligence in the petition, all of which were refused.

The principal insistence of defendant on this appeal is that there was no basis in the evidence for the application of the humanitarian doctrine, and that, consequently, the court was in error in giving instruction No. 1 for plaintiff upon such theory of negligence. The instruction reads as...