Greer v. Springfield Creamery Co.

• Decision Date: 08 May 1922
• Docket Number: No. 2996.,2996.
• Citation: 240 S.W. 833
• Parties: GREER v. SPRINGFIELD CREAMERY CO.
• Court: Missouri Court of Appeals

240 S.W. 833

GREER v. SPRINGFIELD CREAMERY CO.

No. 2996.

Springfield Court of Appeals. Missouri.

May 8, 1922.

Appeal from Circuit Court, Greene County; Orin Patterson, Judge.

Action by D. W. Greer against the Springfield Creamery Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Allen & of Springfield, for appellant. Warren L. White, of Springfield, for respondent.

FARRINGTON, J.

The plaintiff recovered judgment for $1,000 in the trial court, on account of personal injuries received by him, occasioned by a collision between a buggy in which he was riding and a motor truck driven by one of defendant's servants. The time of the collision was about 10 o'clock at night, on the 28th day of August, 1920.

Plaintiff's petition alleges a number of grounds of negligence, among which was a charge based on the humanitarian doctrine, and upon which ground the case went to the jury, all other grounds being abandoned by the plaintiff in his submission of instructions. The charge in the petition under the humanitarian rule is good, and no controversy is made by the appellant on that score. The only serious ground for error made by the appellant is the giving of instruction No. 1, asked by the plaintiff.

The plaintiff's evidence shows that, on the night of the collision, about 10 o'clock he drove east on St. Louis street, in a buggy drawn by a horse which was traveling at the rate of about 2 miles an hour. In the buggy with him was a companion, and they were going to their homes. According to plaintiff, and some four or five witnesses, he kept the horse and buggy on the south side of St. Louis street, near the south or right-hand curb as he was going, until he came to Benton avenue, a street which intersects St. Louis street, Benton avenue running north and south. He intended to turn north and go on Benton avenue. His evidence shows that he drove past the center of the intersection of the streets, turned north, and had gotten the horse and all of the buggy except the center of same off of St. Louis street, going down Benton avenue, when one of defendant's motor trucks struck the buggy at about the center, knocked him out of the buggy and to the street pavement some distance west of Benton avenue, rendering him unconscious. The buggy was completely destroyed, but the horse was in no way injured. We call attention to this fact about the horse because it tends to corroborate the plaintiff's version of the collision more than it does the defendant's. After the truck had struck the buggy, it ran up over a curbing, up a terrace, and into a churchyard before it was stopped. We call attention to this because that fact corroborates plaintiff's witnesses as to the speed the truck was traveling, more than it does defendant's testimony in that respect.

The plaintiff says that he looked east on St. Louis street as he made the turn to go north on Benton avenue and did not see any cars in close proximity that would interfere with his going as he did. The plaintiff's witnesses show that the motor truck was traveling west at the rate of 35 to 40 miles an hour; that it had lights on it, and that it ran into plaintiff's buggy just as it was going out of St. Louis street, down Benton avenue. The defendant's testimony shows that the truck was only running 10 or 12 miles an hour, and the witnesses for defendant show that the plaintiff, in proceeding along St. Louis street, was not in that portion of the street where he should have been, near the south curb, but that he was over on the north side of the street, within a few feet of the north curb, and that the collision took place, not at the intersection of Rental avenue and St. Louis street, but some 15 to 20 feet west of that point; defendant's evidence tending to show that the plaintiff never reached Benton avenue, and that the collision did not take place where the plaintiff stated it did.

When the case came to submission to the jury, the plaintiff did not submit the case on his theory as to where the accident took place or on the theory that he was wholly without negligence, but adopted the defendant's theory that he was negligent in being on the north side of the street, which placed him directly in the path the motor truck was traveling, and framed a recovery in the instruction on the ground that he was in that place for a sufficient length of time for the defendant's servant to have seen him there, to have discovered that he was in peril, and to have stopped or turned the car so as to have avoided injuring him. In other words, plaintiff accounted for this accident in a certain way; defendant accounted for it under facts differently from those testified to by plaintiff and his witnesses—then the plaintiff, by his submission, occupies the position of saying, very well, we will take the defendant's version of where I was when injured, and, under the law, you are liable for injuring me.

The evidence shows that, if the plaintiff was in the street where the defendant's witnesses show him to have been when injured, then he was at a place where he could have been seen for at least 200 to 300 feet before the truck came on him, had the truck driver looked to see him.

We will not waste time in discussing whether, under the evidence, the plaintiff had a case that should have gone to the jury. Under his statement of the case he undoubtedly was at a place where he had a right to be, and was negligently run down by defendant's truck. On the other hand, if he was at the location defendant's testimony places him, he was in the street with no obstructions between him and the defendant's truck driver, for long enough time for the truck driver to run some 300 feet before striking him. There is no evidence whatever offered by the defendant which indicates that the plaintiff suddenly drove in front of the oncoming truck, or that he purposely and willfuly drove in front of it; in fact, the testimony of the defendant is exactly the reverse.

We therefore have a case, even under defendant's testimony, which shows that plaintiff was in a place of peril, provided no action was taken to relieve that peril by the truck driver, for a sufficient length of time to have been discovered and saved, bad ordinary care been exercised by the driver of the truck. We might add, as an additional fact, that the evidence shows that a truck being driven at the rate of from 30 to 35 miles an hour could have been stopped within some 70 to 80 feet.

The evidence justifies the submission of the case to a jury under the testimony of the plaintiff or under the testimony of the defendant.

Serious complaint is made concerning the giving of instruction No. 1, and that because the instruction did not require the jury to find that the plaintiff was shown to be oblivious to the danger he was in, or that he was in a place where, although conscious of the danger, he was unable to extricate himself. A number of cases are cited by appellant, such as Knapp v. Dunham (Mo. App.) 195 S. W. 1062; Stark v. Bingamann (Mo. App.) 223 S. W. 946, which cases hold that, in a petition counting on the humane rule, there must be some allegations as to obliviousness or inability to extricate. These are elements which in many cases are...