Gude v. Weick Bros. Undertaking Co.

• Decision Date: 05 April 1929
• Citation: 16 S.W.2d 59,322 Mo. 778
• Parties: Bernardina Gude v. Weick Bros. Undertaking Company, Appellant
• Court: Missouri Supreme Court

16 S.W.2d 59

322 Mo. 778

Bernardina Gude v. Weick Bros. Undertaking Company, Appellant

Supreme Court of Missouri

April 5, 1929

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Affirmed.

Brackman Hausner & Versen for appellant.

(1) Instruction 3, submitting the case on the humanitarian theory, was erroneous. (a) The requirement that the defendant had to exercise the "highest degree of care" to avoid injuring plaintiff's husband imposed a greater degree of care on the defendant than is required by law. State ex rel. v. Trimble, 253 S.W. 1018; Banks v. Morris, 257 S.W. 484; Degonia v. Railroad, 224 Mo. 564; Hanlon v. Mo. Pac. Ry. Co., 104 Mo 381; O'Flaherty v. Union Ry. Co., 45 Mo. 70; Hawkins v. Wells, 297 S.W. 196; Lambert v Wells, 264 S.W. 37; Sullivan v. Railroad, 247 S.W. 1010. (b) The instruction only required the exercise of "reasonable" care for the safety of persons riding in the automobile. It therefore required a different standard of care for the safety of a person on the street from that required for the safety of a person in an automobile, which was contrary to the law respecting the operation of automobiles. Sec. 19, p. 91, Laws 1921, 1st Ex. Sess.; Threadgill v. United Rys. Co., 214 S.W. 161; Burke v. Pappas, 293 S.W. 142. (c) The instruction, by exacting the "highest degree of care" for the safety of plaintiff's husband and only "reasonable" care for the passenger of the automobile, made the safety of the former the sole consideration and thereby violated not only the humanitarian doctrine, but the statute law as well. Sec. 19, p. 91, Laws 1921, 1st Ex. Sess.; Threadgill v. United Rys. Co., 214 S.W. 161; Burke v. Pappas, 293 S.W. 142; Maher v. Railroad, 64 Mo. 267. (d) The word "reasonable," as used in the instruction, is synonymous with the word "ordinary." The phrase "with reasonable safety" means with reasonable care for the safety, etc. Reasonable care is ordinary care. Helfenstein v. Medart, 136 Mo. 595. (e) Error in an instruction is presumed to be prejudicial unless the contrary is satisfactorily shown. Gerler v. Kansas City, 105 Mo.App. 191; Doyle v. Trust Co., 140 Mo. 1; Skinner v. Stifel, 55 Mo.App. 9; Camp v. Railway, 94 Mo.App. 284. (2) The verdict of the jury is excessive. Burtch v. Wabash, 236 S.W. 338; Cole v. Long, 227 S.W. 903; Davoren v. Kansas City, 273 S.W. 401; Castilo v. State Highway Comm., 279 S.W. 673.

Jesse T. Friday for respondent.

(1) The degree of care to be exercised by the operator of an automobile upon the public highways in this State by Laws 1911, p. 330, sec. 12, par. 9, is the same as the degree of care required of automobile operators by Laws 1921 (1st Extra Sess.) p. 91, sec. 19. (2) When the Supreme Court construes a law and, after that construction becomes well known, the law is reenacted, the construction is assumed to have been likewise adopted. Camp v. Wabash, 68 S.W. 96; Handlin v. Morgan Co., 57 Mo. 116; Sanders v. Anchor Line, 10 S.W. 595; State ex inf. v. Mo. Ath. Club, 170 S.W. 904. (3) Laws 1921 (1st Ex. Sess.) page 91, sec. 19, providing that automobile drivers must exercise the highest degree of care, is applicable to negligence involved in violation of humanitarian rule, as well as primary negligence. Hults v. Miller, 299 S.W. 85; State ex rel. v. Allen (Mo.), 250 S.W. 585; Bruce v. Packing Co., 6 S.W.2d 986; Burke v. Pappas, 293 S.W. 142; Miller v. Wilson, 288 S.W. 997. (4) The verdict is not excessive. Montague v. Ry. Co., 264 S.W. 813; Treadway v. United Rys. Co., 282 S.W. 441; Smith v. Mederake, 259 S.W. 83; Honea v. Ry. Co., 151 S.W. 119, 153 S.W. 486.

OPINION

Blair, P. J.

Action for damages for the death of plaintiff's husband Bernard Gude, by alleged wrongful act of defendant. Trial by jury resulted in a verdict for plaintiff in the sum of $ 10,000. Failing to obtain a new trial, defendant was granted an appeal to this court.

A brief sketch of the evidence will suffice, because its sufficiency to sustain the judgment is not now challenged by defendant (appellant in this court). Respondent's husband was struck and fatally injured by appellant's automobile ambulance, driven by its employee in pursuance of appellant's business, at Broadway and Dakota streets in St. Louis, on February 2, 1925, between the hours of 5:30 and six o'clock, P. M. Appellant's automobile was moving southward on Broadway, and deceased was on the south side of Dakota Street walking eastward across Broadway, when the fatal accident occurred.

Respondent's evidence tended to prove that the automobile was being driven at a speed of twenty-five to thirty miles per hour along the middle of Broadway, without any warning of any sort; that deceased stepped down from the west curb of Broadway and moved directly and in a steady course across the street in full view of the driver of the automobile, and that the driver did not change the course or check the speed of the automobile and struck the deceased with the left front portion of the automobile when deceased was midway between the rails of the east (northbound) street car track in Broadway; that blood was found on the left front fender of the automobile after the collision. There was also evidence which tended to prove that the driver could have stopped or checked the automobile in time to have avoided injuring deceased after his peril was or could reasonably have been known by said driver.

Appellant's evidence tended to prove that the automobile was being driven southward on Broadway at a speed of twenty to twenty-three miles per hour, and that the wheels were between the west (southbound) street car tracks and the west curb of Broadway; that the horn was duly sounded at and approaching said street intersection; that the driver saw deceased about five feet from the west curb of Broadway; that deceased started to go west toward the curb after the driver sounded the horn; that deceased then suddenly turned back and started to run eastward across the street into the path of the automobile; that the driver twisted the steering wheel quickly and turned his automobile in a southeast direction toward the street car tracks to avoid striking deceased, but that deceased ran into the right side of the automobile and was thus struck and knocked down.

The automobile ambulance was quickly stopped, and deceased was picked up and put into it and taken to a hospital where his death, concededly caused by the injuries thus received, occurred the following day.

The petition charged that the driver was negligent in driving the automobile at a high and dangerous rate of speed and without having it under such control that it could readily be stopped at the first appearance of danger and that no warning of its approach to Dakota Street was given. Appellant was also charged with negligence under the humanitarian rule. The answer was a general denial, a plea of contributory negligence on the part of deceased and that deceased's injuries were caused solely by his own negligence. The reply was a general denial.

The case was submitted to the jury on the charges of high and dangerous speed, on the failure to give proper warning and upon appellant's alleged negligence under the humanitarian rule, and also upon deceased's alleged contributory negligence, as a defense to appellant's alleged primary negligence. No complaint is here made of the trial court's action in submitting the case on said charges of negligence and none of the instructions are challenged as to form or substance, except Instruction 3 on the humanitarian rule, which authorized the jury to find for respondent, if it found (among other things) "that defendant's agent and servant saw, or by the exercise of the highest degree of care could have seen, said Bernard Gude in and upon the traveled part of said Broadway and in a position of imminent peril of being struck by said automobile, if you find that said Bernard Gude was in a position of imminent peril of being struck by said automobile, and that defendant's said agent and servant, in time thereafter, by the exercise of the highest degree of care on his part, and with the means at hand and with reasonable safety to himself and the other person upon said automobile, could have stopped, slackened the speed of or turned said automobile so as to have avoided striking said Bernard Gude, and that defendant's said agent and servant failed to do so."

This portion of Instruction 3 is said to be erroneous because "it imposed a higher degree of care on the defendant to avoid injuring plaintiff's husband than the law required under the humanitarian doctrine, the theory which was attempted to be submitted by said instruction," and because "it violated the statute law of the State in asserting that the defendant was only required to exercise 'reasonable' care for the safety of himself and his passengers."

I. Appellant does not claim that, in so far as the issue of its primary negligence is concerned, its driver was not required to exercise the highest degree of care in the operation of his automobile upon the highway. The question is whether appellant's driver, in attempting to avoid inflicting injury upon the deceased while he was in a position of imminent peril, not caused by said driver's negligence, was required to exercise the highest degree of care.

By Section 19, page 91, Laws of 1921, First Extra Session, it is provided that "every person operating a motor vehicle on the highways of this State shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, and at a rate of speed so as not to endanger the property of another or the life or limb of any person." It is manifest that the statute itself does not prescribe any different degree of care on the part of the...