Hangge v. Umbright

• Decision Date: 17 August 1938
• Docket Number: No. 35490.,35490.
• Citation: 119 S.W.2d 382
• Parties: HANGGE v. UMBRIGHT.
• Court: Missouri Supreme Court

119 S.W.2d 382

HANGGE v. UMBRIGHT.

No. 35490.

Supreme Court of Missouri, Division No. 2.

August 17, 1938.

Appeal from Circuit Court of St. Louis, Division No. 7; Ernest F. Oakley, Judge.

Action by Emil G. Hangge against John Umbright to recover for injuries sustained in an automobile collision, wherein defendant filed a counterclaim. Verdict was rendered against plaintiff on his cause of action and against defendant on his counterclaim and from an order sustaining plaintiff's motion for a new trial, defendant appeals.

Affirmed.

Wilbur C. Schwartz and Goodwin & Richardson, all of St. Louis, for appellant.

Kopitsky & Kessler, of St. Louis (Robert L. Aronson, of St. Louis, of counsel), for respondent.

WESTHUES, Commissioner.

This suit found root in a collision between the car of respondent, plaintiff below, and that of the appellant, defendant below. Plaintiff's car was completely demolished and he sustained personal injuries which included a fractured skull. Defendant sustained minor personal injuries and a small damage to his car. Plaintiff sued to recover damages in the sum of $15,350. Defendant filed a denial and also filed a counterclaim seeking damages in the sum of $214. Plaintiff's case was submitted to a jury under the humanitarian doctrine. There was a verdict against plaintiff on his cause of action and against the defendant on his counterclaim. The trial court sustained plaintiff's motion for a new trial and defendant appealed.

The collision occurred near the center of the intersection of Sullivan and Elliot avenues in the city of St. Louis, Missouri, at about 1:30 a. m., May 31, 1936. The streets were about thirty-five feet in width. There was a stop sign on the west side of the intersection against east bound traffic on Sullivan avenue. There was no stop sign for traffic on Elliot avenue. Plaintiff, who was alone, was driving a Chevrolet coach south on Elliot. The defendant was driving a Dodge coach east on Sullivan, in company with a young man named Carl Otto and a young lady named Bernice Raymer. Plaintiff testified that he approached the intersection at a speed of about twenty-five miles per hour; that he looked to the west and could see a distance of about sixty-five feet on Sullivan avenue and no cars were in sight; that he then looked to the east, saw nothing, and proceeded to cross the intersection; that just as he passed the center of the intersection a car going east struck his car to the rear of the door; that the impact rendered him unconscious. Plaintiff testified that at no time did he see defendant's car. He also testified that the head-lights of his car were burning.

Defendant testified that he was acquainted with the streets in that locality and knew there was a stop sign on Sullivan avenue at Elliot; that he stopped at the sign and looked to the right and left and saw no cars coming; that he then put his car in second gear and proceeded to cross the intersection; that when he reached the center line he noticed plaintiff's car within a few feet of him, trying to cut in ahead of his car at a speed of about forty miles per hour; that no lights were burning on plaintiff's car; that when he saw plaintiff's car, he, the defendant, immediately swerved to the right in an attempt to avert a collision, but it was too late and defendant's car and plaintiff's car collided. Carl Otto testified substantially as did the defendant. A deposition, given by the young lady riding in the car, was read in evidence, but it disclosed that she saw nothing, heard nothing and knew nothing of what occurred prior to the collision. Plaintiff's car came to a stop after it struck a lamp post at the southeast corner of the intersection. There was evidence that a driver of a car, when at the stop sign, could see north on Elliot avenue a distance of about one hundred and fifty feet.

The trial court sustained plaintiff's motion for a new trial on the theory that instruction number five, given at defendant's request, was erroneous. This instruction submitted to the jury defendant's theory of recovery on his counterclaim. In substance the instruction required the jury to find, before authorizing a verdict, that the defendant was exercising the highest degree of care and that defendant's car was damaged through the negligence of the plaintiff. The instruction did not refer to plaintiff's theory of recovery under the humanitarian rule. Plaintiff contended that this instruction was erroneous because it failed to embody plaintiff's humanitarian theory of the case. In this plaintiff cannot be sustained, because, first, the jury found against the defendant on his counterclaim and the instruction under discussion did not cover any other question; second, as worded, there was no necessity to refer to the humanitarian doctrine in this instruction. The jury was required to find, before authorizing a verdict on defendant's counterclaim, that the defendant at all times was exercising the highest degree of care and that the damage to defendant's car was the direct result of plaintiff's negligence. If the jury so found then defendant was entitled to a verdict on his counterclaim. In passing we may state that plaintiff, in his instruction authorizing a verdict in his favor, did not mention defendant's counterclaim. Plaintiff of course thinks, and correctly so, that that was not necessary. This case, as many others, is briefed here somewhat on the theory that there is something mysteriously sacred about the humanitarian doctrine. That it is, so to speak, a favorite child before the law, a delicate child that must be held aloof from the ordinary rules of law...