Gray v. Columbia Terminals Co.

• Decision Date: 03 September 1932
• Citation: 52 S.W.2d 809,331 Mo. 73
• Parties: Channie Gray, Appellant, v. Columbia Terminals Company, a Corporation, and Raymond Grimm
• Court: Missouri Supreme Court

52 S.W.2d 809

331 Mo. 73

Channie Gray, Appellant, v. Columbia Terminals Company, a Corporation, and Raymond Grimm

Supreme Court of Missouri

September 3, 1932

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

Reversed and remanded.

N Murry Edwards and Robert A. Harris for appellant.

(1) The court erred in giving defendants' Instruction 3 on the humanitarian doctrine, because said instruction limited the danger zone to the path of defendants' truck and to immediate danger of being struck, while the evidence showed that the deceased was moving toward the path of the truck looking the other way for traffic, with the apparent intention of continuing across the street in front of the truck. Shumate v. Wells, 9 S.W.2d 635; Causey v. Wittig, 11 S.W.2d 15; Jangeles v. Berberich, 20 S.W.2d 579; Thompson v. Railroad Co., 18 S.W.2d 406. (a) The driver of defendants' truck could not defer action until the deceased stepped in front or into the path of defendants' truck, because under the circumstances detailed the danger zone extended beyond these limits. Maginnis v. Railroad, 268 Mo. 678; State v. Trimble, 260 S.W. 1002; Schroeder v. Wells, 310 Mo. 655; Hoodenpyle v. Wells, 10 S.W.2d 331; McGowan v. Wells, 24 S.W.2d 633. (2) The court erred in giving defendants' Instructions 4 and 5, and submitting to the jury the question of the deceased's contributory negligence, because plaintiff submitted her case solely upon the humanitarian doctrine, to which contributory negligence is no defense. Shumate v. Wells, 9 S.W.2d 635; Causey v. Wittig, 11 S.W.2d 14; Henson v. Railroad, 301 Mo. 426, 256 S.W. 771; Bona v. Luehrman, 243 S.W. 389. (a) The fact that defendants' Instructions 4 and 5, after submitting contributory negligence, instructed the jury that they should find for defendants unless they should find for the plaintiff under Instruction 1 (plaintiff's humanitarian instruction), did not cure the error in submitting contributory negligence. Silliman v. Munger Laundry, 44 S.W.2d 162; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 120; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142.

Thompson, Mitchell, Thompson & Young for respondents.

(1) The plaintiff's evidence did not make out a case to which the humanitarian doctrine would apply, because there is no testimony whatever in the record that plaintiff started to cross the center line of the street and place himself in a position of danger until it was too late for defendants to stop the truck. Brkljaca v. Ross, 60 Cal.App. 431, 213 P. 290; Gimeno v. Martin, 64 Cal.App. 154, 220 P. 1076; Todd v. Railway Co., 37 S.W.2d 557. (2) The plaintiff, not having made a case under the humanitarian or last-clear-chance doctrine, any error of the trial court in its instructions constitutes harmless error. Moore v. Lindell Ry. Co., 176 Mo. 528, 75 S.W. 672; Carr v. Railway Co., 195 Mo. 214, 92 S.W. 874; Trainer v. Sphalerite Mining Co., 243 Mo. 359, 148 S.W. 70.

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

OPINION

FERGUSON

The plaintiff, widow of John Gray, deceased, brought this action under the wrongful death statutes, for damages in the sum of ten thousand dollars, for the death of her husband who was run over and killed by a motor truck or tractor owned and operated by defendant, Columbia Terminals Company, a corporation, and driven by its employee, defendant Grimm. Plaintiff made several separate assignments of negligence in her petition but, abandoning all other charges of negligence, submitted her case solely on negligence under the humanitarian rule. Defendants' answers are general denials with pleas of contributory negligence. The verdict of the jury was for defendants and from the judgment entered thereon for defendants plaintiff prosecutes this appeal.

The assignments of error presented here by appellant, plaintiff below, relate to instructions numbered, 3, 4 and 5 given at the request of the defendants. Respondents make no attempt to sustain these instructions or to refute appellant's criticisms thereof but say, that appellant rested her case solely upon negligence under the humanitarian doctrine; that the "evidence did not make out a case to which the humanitarian doctrine would apply" and its demurrer to the evidence at the close of the whole case should have been sustained; that appellant was not, from any point of view, entitled to recover and the judgment was therefore for the right party and "error of the trial court in its instructions" is immaterial.

Assuming the instructions complained of to be erroneous, nevertheless, if, as respondents contend, no substantial evidence tending to show defendants to have been guilty of negligence under the humanitarian rule is to be found in the record, respondents' position is well taken. In considering the evidence for the purpose of determining the trial court's ruling upon the demurrer to the evidence we have applied the rule that upon a final demurrer to the evidence the whole evidence, whether offered by plaintiff or defendants, must be searched and the plaintiff given the benefit of any and all facts and circumstances favorable to or tending to support her theory of the case and every reasonable inference deducible therefrom while evidence on the part of and favorable to the defendants, which is contradicted, must be excluded. In this case the evidence offered by the defendants, in some particulars, seems to aid plaintiff's case. From a reading of the record, with the rule above stated in mind, we have gleaned the following facts.

The deceased Gray, a colored man, forty-eight years of age, was employed by the Missouri Pacific Railroad Company at its freight house at 7th and Poplar Streets in the city of St. Louis. Seventh Street is a north and south street, sixty feet in width. Two street car tracks are located in about the center of the street, the east track being the northbound track and the west track the southbound track. The distance from the east rail of the east track to the west rail of the west track is fifteen feet, so that the street car tracks, including the space between, occupy fifteen feet in the center of the street. Each track is four and one-half feet wide and the space between the tracks is six feet. It is twenty-two and one-half feet from the east rail of the east track to the east curb line and the same distance from the west rail of the west track to the west curb line. The freight house where Gray was employed is on the west side of 7th Street. At about noon on January 14, 1928, Gray, preparatory to eating his lunch which he carried daily from his home to his place of work, crossed to the east side of 7th Street to get a bucket of coffee. Some ten minutes later as he was returning to the freight house crossing from the east to the west side of the street carrying the bucket of coffee and as he reached a point about thirty-five feet from the east curb and within twenty-five feet of the west curb, being at least five feet past the center line of the street, he was struck by defendant company's tractor which was pulling a freight van or trailer and was being driven south by defendant Grimm. Gray was hurled to the street and the rear wheel of the tractor ran over him causing fatal injuries resulting in his death about half an hour later.

Defendant Grimm, the driver, describes this tractor and trailer as follows: "The tractor has four wheels; it is nothing more than the chassis and contains the motor; the trailer carries the freight and when the tractor is hooked to the load the front wheels of the trailer go up so you have six wheels on the pavement." The cab of the tractor, where the driver sat and where his helper was also riding, was not enclosed but open so that a clear and unobstructed view ahead and to either side was afforded the driver. The tractor was about five feet wide and "the distance between the front wheels of the tractor is six inches to a foot wider than the street car tracks." Grimm further testified that he never drove the tractor more than six of seven miles an hour. The steering wheel was on the right side of the tractor and necessarily the driver sat at the right side of the cab. A helper named Kelly was seated at the left side of the cab. About eighty feet north of the point where Gray was struck 7th Street crosses railroad tracks and shortly before Gray started back to the freight house and across to the west side of the street the gates at the railroad crossing had been lowered as a train passed over the crossing. The southbound tractor and trailer with other southbound traffic was held by the gates, on the north side of the railroad tracks and a line of northbound traffic formed along the east side of the street south of the railroad tracks. When the gates were raised the other southbound automobiles moved rapidly around, past and away from the slow moving tractor and the single line of northbound traffic along the east side of the street moved north. As the tractor moved south there were no vehicles parked on the west side of the street or traveling south west of the tractor and between the course it was pursuing and the west side of the street. From the time it started south at the railroad tracks until it struck Gray, the tractor was traveling six or seven miles an hour along a straight course "straddling" the west rail of the west or southbound track. This left an open and clear space of twenty feet or more to the right or west of the course traveled. Appellant offered evidence that at the speed at which the tractor was traveling it could have been stopped with safety within a distance of six or eight feet. Gray stepped from the sidewalk on the east side of the street and passed through the single line of northbound traffic. Emerging from the ...