Harrell v. Berberich

• Decision Date: 11 July 1949
• Docket Number: 41245
• Parties: Adolph Harrell, Respondent, v. Mrs. William Berberich and William Berberich, Jr., d/b/a Berberich's Delivery, Appellants
• Court: Missouri Supreme Court

222 S.W.2d 733

359 Mo. 551

Adolph Harrell, Respondent, v. Mrs. William Berberich and William Berberich, Jr., d/b/a Berberich's Delivery, Appellants

No. 41245

Supreme Court of Missouri

July 11, 1949

Motion for Rehearing or to Transfer to Banc Overruled September 12 1949.

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed.

SYLLABUS

Plaintiff was injured in a collision at a street intersection between his taxicab and defendants' truck. Defendants' evidence is available to plaintiff as to whether defendants' truck could have been stopped or its speed slackened. Failure of defendants' truck driver to observe a stop light was an element in plaintiff's humanitarian case. There was evidence to support an instruction that plaintiff was oblivious. The discretion of the trial court was not abused in refusing a continuance. Plaintiff's jury argument was not erroneous, and defendants' jury argument was not prejudicially restricted. The verdict was not excessive.

Jones, Hocker, Gladney & Grand, Vincent L. Boisaubin and James C. Jones III for appellants.

(1) By his instructions plaintiff abandoned all issues as to primary negligence. The only issues in the case and before the court on appeal are those contained in the charge of humanitarian negligence. Guthrie v. St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Bowers v. Columbia Terminals Co., 213 S.W.2d 663. (2) There was no evidence of humanitarian negligence and hence the case should not have been submitted on that theory; and the instructions embodying that theory were erroneous. The jury may not guess or speculate on negligence based on distances and time involving split second decisions. Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Yeaman v. Storms, 217 S.W.2d 495; Claridge v. Anzolone, 220 S.W.2d 33. (3) Humanitarian negligence can be established only upon facts adduced by plaintiff in support of his own theory. He cannot claim the benefit of defendants' evidence which contradicts his own. Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600. (4) Where two or more assignments of humanitarian negligence are submitted in the alternative, or in the disjunctive, if either of the assignments is unsupported by evidence the instruction is erroneous. Miller v. Kansas City Pub. Serv. Co., 238 Mo.App. 247, 178 S.W.2d 824; Dillalo v. Lynch, 340 Mo. 82, 101 S.W. 27. (5) The court erred in giving Instruction 2 on behalf of plaintiff because there was no evidence to indicate to defendants' driver that plaintiff was unaware of, or oblivious to, his danger; and the instruction, therefore, gave the jury a roving commission. Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Pentecost v. Terminal R. Assn., 334 Mo. 572, 66 S.W.2d 533; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889. (6) The court erred in refusing defendants' request to continue the case, or permit the filing of the statutory affidavit as to what defendants' doctor would testify, when it appeared that during the trial, and before being called to the stand, the doctor became suddenly ill and had to be taken home. This was an abuse of discretion which materially prejudiced defendant on the quantum of damages. Nichols v. The Headley Grocer Co., 66 Mo.App. 321; Rottman Dist. Co. v. Van Frank, 88 Mo.App. 50; Shelby v. Met. St. Ry. Co., 141 Mo.App. 514, 125 S.W. 1189. (7) The court erred in permitting plaintiff's counsel, in argument, to comment upon the absence of a police officer equally available to the plaintiff; and, in overruling defendants' objection to such comment, commenting himself that the police officer had been "subpoenaed" but not "called" by the defendants. Atkinson v. United Rys. Co., 286 Mo. 634, 228 S.W. 483; Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760; Huskey v. Met. Life Ins. Co., 94 S.W.2d 1075. (8) The court erred in refusing to allow defendants' counsel to refer to allegations against interest contained in plaintiff's petition on the ground that the petition had not been introduced in evidence. The petition was not an abandoned pleading and was in the case for all purposes. It was unnecessary to formally introduce it in evidence. Coe v. Griggs, 76 Mo. 619; Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052. (9) The verdict was excessive.

Leo Murphy, Jr., and Richard M. Stout for respondent.

(1) Plaintiff was entitled to the benefit of all favorable inferences from defendants' witnesses' testimony, since this testimony in no way contradicted that of plaintiff himself. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Pabst v. Armbruster, 91 S.W.2d 652; Hutchison v. Thompson, 175 S.W.2d 903; Scoggins v. Miller, 80 S.W.2d 724; Heitz v. Voss Truck Lines, 175 S.W.2d 583. (2) Plaintiff made a submissible case of failure to stop (and therefore, also, failure to slow up) under the humanitarian doctrine. The evidence showed clearly that plaintiff was in peril, and apparently oblivious of his peril, when he entered the intersection with the stop sign in his favor. The zone of peril was, therefore, the entire intersection plus, at least, the width of the sidewalk. State ex rel. Sirkin & Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50; Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W.2d 254; Kasperski v. Rainey, 135 S.W.2d 11; Woods v. Kurn, 183 S.W.2d 52, 55; Elkin v. St. Louis Pub. Serv. Co., 355 Mo. 951, 74 S.W.2d 600. (3) Instruction 2 was proper, since it told the jury the zone of peril was set by reasonable appearances. There was ample evidence of the action of plaintiff's car and the appearance of the stop light to support the instruction. Authorities cited under Point (2); Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 555; Scott v. Terminal R. Assn. of St. Louis, 86 S.W.2d 116; Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368; Perkins v. Terminal R. Assn. of St. Louis, 340 Mo. 868, 102 S.W.2d 915; Trusty, Constructing & Reviewing Instructions (Mo. Ed.), p. 167. (4) The trial judge did not abuse his discretion by refusing a mistrial when defendants' doctor did not show up. Defendants had other means available to secure medical testimony if they wanted it, and the trial court would have been justified from the record in finding they did not really want it. (5) Plaintiff's counsel had the right to comment in argument on the action of defendants in subpoenaing the police officer and not putting him on the stand. Chaveries v. Natl. Life & Accident Ins. Co. of Tenn., 110 S.W.2d 790; State v. Collins, 350 Mo. 291, 165 S.W.2d 647; Deaver v. St. Louis Pub. Serv. Co., 199 S.W.2d 83; Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919; F. A. Sanders R.E. & Inv. Co. v. Warner, 205 S.W.2d 283; Jones v. Central States Oil Co., 170 S.W.2d 153. (6) It was not error to refuse to let defendants' counsel read abandoned assignments of negligence in the petition, which was not in evidence, to the jury in his argument. Gorman v. St. Louis Merchants' Bridge Term. Ry. Co., 325 Mo. 326, 28 S.W.2d 1023. (7) The verdict of $ 8000.00 was not excessive, especially since it included $ 1700.00 special damages, and plaintiff had permanent injuries to his knee and back, suffered greatly, and had many injuries which were not permanent, and also in view of present economic conditions. Prichard v. Dubinsky, 338 Mo. 360, 89 S.W.2d 530; Belding v. St. Louis Pub. Serv. Co., 205 S.W.2d 866; Duffy v. Kansas City Rys. Co., 217 S.W. 883.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

About 2:30 A.M. on Sunday, August 3, 1947, the plaintiff's taxicab was involved in a collision with the defendants' delivery truck at the intersection of Jefferson Avenue and Pine Street in St. Louis. The plaintiff recovered a judgment of $ 8,000.00 for his resulting personal injuries, medical expense, lost wages and the virtual destruction of his cab. Upon this appeal the defendants claim that the plaintiff's evidence was insufficient to support his humanitarian negligence submission and that the court erred in instructing the jury upon the humanitarian doctrine. And, they also contend that the court prejudicially erred in the following particulars: in refusing to grant a continuance, in permitting plaintiff's counsel to comment upon the defendants' failure to call a certain police officer and in refusing to permit defendants' counsel to refer in his argument to certain allegations in the plaintiff's petition. Furthermore, the defendants contend that the verdict of $ 8,000.00 is excessive.

Jefferson and Pine Streets are about the same width, estimated at thirty to fifty feet, and there is a sidewalk ten feet wide on both streets. The plaintiff was proceeding north on Jefferson Avenue at a speed of ten to fifteen miles an hour and the defendants' truck, traveling west on Pine Street at a speed of twenty to twenty-five miles an hour, struck the cab while it was in the northeast quadrant of the intersection. Traffic at the intersection is controlled by automatic stop-and-go signals and, according to the plaintiff's evidence, the signal light was in his favor as he entered and proceeded through the intersection. The plaintiff did not see the defendants' truck until "it was right at me." Whether Pine Street is thirty or fifty feet wide, it is mathematically demonstrable, if the defendants' truck was traveling at a speed of twenty to twenty-five miles an hour and the plaintiff was traveling at a speed of fifteen miles an hour, that the truck driver could have stopped the truck and, a fortiori, have slackened its speed in time to have avoided the collision.

The defendants' argument that the plaintiff failed to make a humanitarian case is based entirely upon the assumption that the plaintiff may not have the benefit of the defendants' evidence in determining whether he made a submissible...