Gurwell v. Jefferson City Lines

• Decision Date: 11 February 1946
• Citation: 192 S.W.2d 683,239 Mo.App. 305
• Parties: Willard Gurwell v. Jefferson City Lines, Inc
• Court: Kansas Court of Appeals

192 S.W.2d 683

239 Mo.App. 305

Willard Gurwell v. Jefferson City Lines, Inc

Court of Appeals of Missouri, Kansas City

February 11, 1946

Appeal from Circuit Court of Cole County; Hon. Edward T. Eversole Judge.

Reversed and remanded.

Bushman & Buchanan and H. P. Lauf for appellant.

(1)The trial court erred in refusing to give appellant's motions for a directed verdict at the close of plaintiff's case and at the close of all of the evidence.Yuronis v Well,17 S.W.2d 518, l. c. 521.(a) The same burden of proof rests upon plaintiff in a humanitarian case as in any other case.Dody v. Lonsdale(Mo. App),158 S.W.2d 203, l. c. 207;Hangge v. Umbright(Mo.),119 S.W.2d 382, l. c. 384;Shepherd v. Chicago R. I. & P. Ry. Co. et al.,72 S.W.2d 985, l. c. 988.(b) Before respondent is entitled to have the issue of humanitarian negligence submitted he must prove the essential elements.Ziegelmeier v. East St. Louis,51 S.W.2d 1027.(c) A submissible case under the humanitarian doctrine cannot be based on conjecture and speculation.Burns v. Joyce et al.(Mo. App.),161 S.W.2d 655, l. c. 659;Lappin v Prebe et al.,131 S.W.2d 511, l. c. 513;Meese v. Thompson,129 S.W.2d 847, l. c. 850.(d)Respondent may have the benefit of defendant's evidence consistent with his theory and his testimony, but derives no benefit when inconsistent and contradictory.Hutchison v. Thompson,175 S.W.2d 903, l. c. 911;Elkins v. St. Louis Public Service Co.,74 S.W.2d 600, l. c. 604;State ex rel. Weddle v. Trimble et al.,52 S.W.2d 864, l. c. 867;Ellis v. Wolfe-Shoemaker Motor Co.,55 S.W.2d 309, l. c. 311.(2) There was no evidence that respondent was in a position of peril or where the zone of humanitarian peril began or that respondent was oblivious to danger, or that appellant's driver could have stopped or that any warning, or swerving would have avoided the injury and the collision.Knorp v. Thompson(Mo. App.),167 S.W.2d 105, 175 S.W.2d 889;Hutchison v. Thompson(Mo. App.),167 S.W.2d 96, 175 S.W.2d 903;Evans v. Farmers Elevator Co.,147 S.W.2d 593;Bauer v. Wood,154 S.W.2d 356;Branson v. Abernathy Furniture Co.,130 S.W.2d 562;Borgstede v. Waldbauer et al.,88 S.W.2d 373;Crawford v. Byers Transp. Co.(Mo. App.),186 S.W.2d 756-761.(3) The testimony offered by the plaintiff is contrary to the physical facts.Freed v. Mason(Mo. App.),137 S.W.2d 673, l. c. 678;Mahl v. Terrell(Mo.),111 S.W.2d 160, l. c. 161;Dunn v. Alton Railway Co.(Mo.),104 S.W.2d 311, l. c. 314;Ellis v. Wolfe-Shoemaker Motor Co.(Mo. App.),55 S.W.2d 309-311.(4) The instruction by the use of disjunctive authorized the jury to return a verdict for the plaintiff if the defendant failed to warn plaintiff of the approach of the bus.Crawford v. Byers Transp. Co.(Mo. App.),186 S.W.2d 756, 761.(a) Obliviousness is necessary element to make humanitarian negligence case of failure to warn.Womack v. Mo. Pac. Ry. Co.(Mo.),88 S.W.2d 368, 371;Pentecost v. St. Louis Bridge Co.,66 S.W.2d 533, 535;Crawford v. Byers Transp. Co.(Mo. App.),186 S.W.2d 756, 761.(5) The instruction does not limit the jury to the evidence or the petition.Reiling v. Russell,153 S.W.2d 6, l. c. 10;Ross v. Wilson,163 S.W.2d 347;Lansford v. Macon Products Co.(Mo. App.),260 S.W. 781, l. c. 783;Clark v. Atchison Railway Co.,62 S.W.2d 1082.(6)The court erred in refusing to permit appellant to introduce in evidence city ordinances for the purpose of proving that respondent's acts were the sole cause of the accident.Doherty v. St. Louis Butter Co.,98 S.W.2d 742, l. c. 746.(7)The court erred in permitting respondent to introduce evidence that he sustained a permanent injury for the reason that his amended petition does not plead same.Cory v. Conqueror Trust Co.,86 S.W.2d 611;Dimick v. Snyder, 34 S.W.2d 1004.

Lewis H. Cook and Roy W. Rucker for respondent.

(1) Negligence is no defense under the humanitarian doctrine, and obliviousness is not always a necessary element.The question of whether a person is in imminent peril is a question of fact and always for the jury.(Pennington v. Weis et al.,184 S.W.2d 416.)Respondent testified that he was unaware of the approach of the bus and entirely oblivious of his peril.Millhouser v. Kansas City Public Service Co.(Mo.),55 S.W.2d l. c. 675;Botee v. Kansas City Public Service Co.(Mo.),183 S.W.2d l. c. 895.(2) The credibility of the witnesses was for the jury.Creamer v. Bivert,214 Mo. l. c. 479.(3) Negligence is not a bar to a recovery under the humanitarian rule, and the respondent having testified that he was oblivious to his danger, it was the duty of the operator of the passenger bus to avoid the injury.Pennington v. Weis et al.(Mo.),184 S.W.2d 416;Botee v. Kansas City Public Service Co.(Mo.),183 S.W.2d l. c. 895;Millhouser v. Kansas City Public Service Co.(Mo.),55 S.W.2d l. c. 675.(4)Appellant asked for no instruction on the measure of damages and allowed the case to be submitted to the jury on respondent's InstructionNo. 2.Having done so, it cannot complain.Wolfe v. Kansas City(Mo.),68 S.W.2d l. c. 826;Clark v. Atchison Bridge Co.(Mo.),68 S.W.2d 1079, 1082;Kirk v. Kansas City Terminal Ry. Co.(Mo. App.),27 S.W.2d l. c. 746;Johnson v. Const. Co.(Mo. App.),22 S.W.2d l. c. 883;Jansen v. Abolt,189 S.W.2d 121, 123.(5) Because contributory negligence is no bar to a recovery under the humanitarian doctrine.Pennington v. Weis et al.(Mo.),184 S.W.2d 416;Botee v. Kansas City Public Service Co.(Mo.),183 S.W.2d l. c. 895;Millhouser v. Kansas City Public Service Co.(Mo.),55 S.W.2d l. c. 675.(6) The petition could have been amended to conform to the proof at any time, if requested.All plaintiff below had to do was to ask to amend by interlineation.The court could have penalized plaintiff, but the amendment would have been allowed.It will now be treated as having been made.Koonse v. Steel Works(Mo. App.),300 S.W. l. c. 536;Stevens v. Laundry Co.(Mo. App.), 25 S.W.2d l. c. 497.

Sperry, C. Boyer, C., concurs.

OPINION

SPERRY

Willard Gurwell, plaintiff, sued Jefferson City Lines, Inc., for damages suffered because of personal injuries received when a pick-up truck, in which plaintiff was seated, was struck, by defendant's bus.Plaintiff pleaded primary and humanitarian negligence.At the close of his evidence he dismissed as to primary negligence and the cause was submitted to the jury on humanitarian negligence alone.Frof a judgment in favor of plaintiff, in the amount of $ 5000, defendant has appealed.

Defendant challenges the sufficiency of the evidence to make a submissible case.The pertinent facts in evidence which tend to support plaintiff's right to recover are hereinafter set out rather fully.

At the time the accident occurred plaintiff was engaged in distributing newspapers to customers of his employer in Jefferson City.The papers were being transported in a pick-up truck driven by plaintiff.Two boys, James Clardy, who was plaintiff's helper, and Vincent Boehm, who was merely riding, were in the cab with plaintiff when the accident occurred.Plaintiff and Clardy were thrown from the truck and rendered unconscious, and Boehm was killed.

Moreau Drive is a north-south street, forty feet in width, from curb to curb, at the point where it is intersected by Vineyard Square, an east-west street twenty-seven feet wide at this point.Vineyard Square extends westward, but not eastward, from Moreau Drive.The collision occurred in Moreau Drive, just north of the intersection.

Clardy testified that, at about 6:00 A.M. Jan. 9, 1944, plaintiff was driving the truck southward on Moreau Drive and was approaching Vineyard Square, where he intended, as was customary, to make a U-turn; that the moon was shining and visibility was good; that the speed of the truck was about twenty-five or thirty miles per hour until it reached a point some sixty feet north of Vineyard Square when the speed was slackened, before the U-turn was commenced, to about ten miles per hour; that the truck was turned eastward until the right wheel was about six inches from the east curb and the left wheel about twelve inches therefrom, when the truck was brought to a complete stop; that plaintiff shifted gears and put the truck in reverse but had not again put it in motion when the collision occurred and he lost consciousness; that he did not see the bus and heard no warning of its approach; that when the collision occurred the truck was stationary; and that when he regained consciousness the bus was about fifty feet south of where he was and the truck was further south than it was when the collision occurred.

Mr. Bales, plaintiff's employer and the owner of the truck, testified that he arrived at the scene shortly after the collision occurred and before 6 o'clock.He identified a photograph of the truck which, he stated, disclosed its condition after the collision occurred.There was a dent in the left front fender; the left rear of the truck, the fender, was smashed; and the left rear wheel was broken off at the axle.He stated that there were skid marks on the pavement, made by rubber tires of the truck, about six feet in length, located entirely east of the center line of Moreau Drive; that at the end of these marks there was a mark made by metal (from the broken axle) extending from north to south in an arc leading to the truck; that the bulge of the arc was to the west; that the truck is sixeen feet long from bumper to bumper; and that the body extends about three and one-half feet beyond the rear axle.He also gave evidence to the effect that defendant's bus, when traveling at a speed of twenty-five miles per hour, could have been stopped within a distance of thirty feet.

Plaintiff testified to the effect...