Goodson v. Schwandt

• Decision Date: 12 December 1927
• Docket Number: 26264
• Citation: 300 S.W. 795,318 Mo. 666
• Parties: Fannie Goodson v. Walter Schwandt and Frank Adam Electric Company, Appellants
• Court: Missouri Supreme Court

300 S.W. 795

318 Mo. 666

Fannie Goodson v. Walter Schwandt and Frank Adam Electric Company, Appellants

No. 26264

Supreme Court of Missouri

December 12, 1927

Reported at 318 Mo. 666 at 669.

Original Opinion of December 12, 1927, Reported at 318 Mo. 666.

Higbee C. Blair and Walker, JJ., concur White, P. J., absent.

OPINION

HIGBEE

On Motion for Rehearing.

The motion challenges the statement in the opinion that "at the instant Goodson discovered he was in danger of being run over by the third automobile, he was out of the path or course of the truck, he became confused, suddenly jumped back toward the south and was instantly struck by the corner of the truck's left fender."

The motion asserts that Goodson never got further than six feet from the south curb of Locust Street, while the left side of the truck was eight or ten feet from said curb, as said truck approached from a point more than thirty-five feet away; that Goodson was in the path of defendant's truck and in danger therefrom at the time he moved or jumped and had been in said position of danger while the truck ran the aforesaid distance toward him, and that the truck could have been stopped within six feet.

The opinion quotes in part the testimony of Will Mays, the only eye witness offered by plaintiff as to the facts of the accident. Further on Mays testified:

"I saw Goodson about six or eight feet from the curb, and several feet east of the east curb line of Seventeenth Street. Mr. Schwandt was also looking ahead. At the time I saw Mr. Goodson six feet or so from the south curb line of Locust Street, he had cleared the path of Mr. Schwandt's machine. Mr. Goodson was at that time to the left of Mr. Schwandt's car. There were two cars abreast at this time; and the third car came around, and Mr. Goodson got afraid and jumped back and Mr. Schwandt's left fender struck him. It was a sudden jump. . . . When the third car came around, Mr. Goodson was to the front and to the left, and when the third car came on top of him he jumped back."

Reading this in connection with the testimony of the witness quoted in the opinion, it is apparent that when the witness stated Goodson "proceeded about six feet north into the street," he was merely estimating the distance Goodson walked from the curb into the street; the other statement is definite and distinct, that "at the time I saw Mr. Goodson six feet or so from the south curb line of Locust Street, he had cleared the path of Mr. Schwandt's machine. Mr. Goodson was at that time to the left of Mr. Schwandt's car."

There is no escape from the conclusion that, on the testimony of plaintiff's witness as to the accident, Goodson had walked directly north into Locust Street until he had cleared the path of Schwandt's car and was to the left of it and was out of danger of being struck by it when, on account of the sudden movement of the third car going westward, he became alarmed, suddenly jumped backward, and was struck by the left front fender of Schwandt's truck. This is the testimony of plaintiff's witness, and it is corroborated by the testimony of the two witnesses for the defendants who were in Schwandt's truck at the time. The evidence precludes the theory that Schwandt failed to exercise diligence to avoid striking Goodson after his peril was or should have been discovered.

Respondent submitted the case by instructions to the jury solely on the last chance or humanitarian doctrine; that is, that Schwandt negligently failed to stop the truck after he could have seen that said Goodson was in a position of peril. The defendants offered separate demurrers to the evidence at the close of plaintiff's case and again at the close of all the evidence. These demurrers were overruled. Thereafter the court gave defendant's Instruction 8, which reads:

"The court instructs the jury that if you find and believe from the evidence that at the time immediately before the accident when the car which Schwandt was operating approached Frank Goodson, if you so find, the said Frank...