Hensley v. Dorr

• Decision Date: 03 December 1945
• Docket Number: No. 39418.,39418.
• Citation: 191 S.W.2d 663
• Parties: HENSLEY v. DORR et al.
• Court: Missouri Supreme Court

191 S.W.2d 663

HENSLEY v. DORR et al.

No. 39418.

Supreme Court of Missouri, Division No. 2.

December 3, 1945.

Rehearing Denied January 8, 1946.

Appeal from Circuit Court, St. Louis County; Division No. 1; R. E. LaDriere, Judge.

Action by Fay Hensley against Ethel Gibson Dorr and another to recover for injuries sustained in an automobile collision. From an order sustaining plaintiff's motion for new trial after the jury returned a verdict for defendants, defendants appeal.

Affirmed and cause remanded.

Fred H. Blades, Walter Wehrle, and Moser, Marsalek & Dearing, all of St. Louis, for appellants.

N. Murry Edwards, Martin P. Hart, and Rene J. Lusser, all of St. Louis, for respondent.

WESTHUES, Commissioner.

This is an action filed by respondent Hensley wherein she seeks damage in the sum of $15,000 for personal injuries alleged to have been sustained as the result of a collision between the car of the defendants, Dorrs, and a car owned by Freeman Littlefield. A trial resulted in a verdict for the defendants. Plaintiff's motion for new trial was sustained on the theory that instruction No. 4, given at defendants' request, was erroneous. From that order defendants appealed. The defendants originally named in the suit were Ethel Gibson Dorr and E. L. Dorr, husband and wife, and Freeman Littlefield. While the suit was pending in the trial court Littlefield died and plaintiff dismissed as to him.

Plaintiff, Mrs. Hensley, was in the employ of the defendants, Dorrs, as a domestic. She worked during the day and went to her home at night. The Dorrs lived in University City and the place of Mr. Dorr's employment was at Nineteenth and Olive streets, St. Louis, Missouri. Quite often Mrs. Dorr would take her husband to work in their car. Plaintiff lived between these two places, her address being 3941 Westminster, St. Louis, Missouri. On the morning of August 27, 1940, Mrs. Dorr after taking her husband to work, stopped on her way home for plaintiff, who sat in the front seat beside Mrs. Dorr. As they drove out on Lindell boulevard, which is 50 feet in width from curb to curb, and when a short distance west of Lake avenue, a Ford car was being driven east on Lindell by Littlefield. He turned his car north across the center line of Lindell and then as he was turning west the left front fender of the Dorr car came in contact with the right rear fender of his car. The impact caused plaintiff to be thrown against the windshield breaking it and cutting her face and otherwise injuring her. Plaintiff's evidence justifies the following statement of facts. The Dorr car was traveling about 25 miles per hour immediately before the collision and was being driven about three or four feet north of the center line of Lindell. The Littlefield car was proceeding east near the south curb line of Lindell and made a wide swing as if to make a complete turn. In doing so it crossed the center line of Lindell facing north, then as it began to turn west the left front fender of the Dorr car struck the right rear fender of the Littlefield Ford. Plaintiff testified that no warning signals were given by either driver and that Mrs. Dorr did not slacken the speed of her car, nor did she swerve it, but drove straight ahead. The cars did not move after the collision. The evidence justifies the assertion that there was sufficient space on Lindell, north of the Littlefield car, for a car to pass to the west and that there was little traffic going west. A witness testified that he was following the Dorr car and that he drove west on Lindell north of the cars involved in the collision; that he took plaintiff to a doctor's office for treatment at her and Mrs. Dorr's request.

Plaintiff relied upon primary negligence, charging that Mrs. Dorr did not drive her car as close to the right-hand or north side of Lindell boulevard as practicable. Plaintiff also relied upon the humanitarian doctrine, charging that Mrs. Dorr saw, or by the exercise of ordinary care could have seen the Littlefield car in and approaching a place of danger in time, by the exercise of the highest degree of care, with the means at hand and with safety to the occupants of the car, to have sounded a warning, checked the speed or swerved or turned the car and thereby have avoided a collision, but negligently failed to do so. Defendants' position at the trial was that Littlefield drove his car across the center line of Lindell into the pathway of the Dorr car so suddenly and without warning that Mrs. Dorr did not in the exercise of the highest degree of care have time to avoid a collision. In other words, that Mrs. Dorr was not negligent in any respect and that the negligence of Littlefield was the direct and proximate cause of the collision.

The case was submitted to a jury upon primary negligence on the theory specified in the petition and also the humanitarian doctrine. The defendants submitted an instruction on the theory that if the collision was occasioned by the negligence of Littlefield and Mrs. Dorr was not guilty of any negligence, then the jury should find for the defendants. The defendants asked and the court gave a number of instructions for the...