Hodgins v. Jones, 22549.

• Decision Date: 07 November 1933
• Docket Number: No. 22549.,22549.
• Parties: HODGINS v. JONES.
• Court: Missouri Court of Appeals

64 S.W.2d 309

HODGINS v. JONES.

No. 22549.

St. Louis Court of Appeals. Missouri.

November 7, 1933.

Rehearing Denied November 21, 1933.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be published in State Reports."

Action by Charles J. Hodgins against Hugh McK. Jones. Judgment for plaintiff, and defendant appeals, the cause being revived on plaintiff's death in the name of Marion Leslie Hodgins, administratrix.

Affirmed.

Greensfelder & Grand and Howard V. Campbell, all of St. Louis, for appellant.

Mark D. Eagleton, Dan P. Reardon, and Frank P. Aschemeyer, all of St. Louis, for respondent.

SUTTON, Commissioner.

This action was instituted in the circuit court of the city of St. Louis, by Charles J. Hodgins, to recover damages for personal injuries sustained by him when struck by defendant's automobile.

The trial, with a jury, resulted in a verdict in favor of plaintiff Hodgins for $6,000. There was a remittitur of $2,000, and judgment was accordingly given for $4,000. From this judgment defendant has appealed to this court.

Since the lodgment of the case here on appeal, the death of plaintiff Hodgins has been suggested, and the cause revived in the name of Marion Leslie Hodgins, as administratrix of his estate.

Charles J. Hodgins, who will hereinafter, for convenience, be referred to as plaintiff, resided, at the time of his injury, at 715 North Kingshighway. He was sixty-six years old. The accident whereby he was injured occurred on January 8, 1931, about 4 o'clock in the afternoon, on Delmar avenue, about 50 feet west of Aubert avenue, which is a block east of Kingshighway. Both Aubert and Kingshighway run north and south, but Aubert stops at its intersection with Delmar. Prior to the accident, plaintiff had been in a store on the south side of Delmar avenue, just across the street from where the accident occurred. He had purchased a package of breakfast food. He was on his way home, and had stopped in the store to get this package. After leaving the store, he was crossing the street to the north curb, where he was struck by defendant's automobile. Delmar avenue is 60 or 70 feet wide. There is a double set of car tracks in the middle of the street. The day of the accident was a clear, dry day, and the streets were dry. Plaintiff was struck by the rear end of defendant's car, which was being operated by defendant's chauffeur, and was moving backward.

Plaintiff testified: "After leaving the store, I was crossing there and went between two automobiles parked on the north side of the street. I was just stepping up on the curb when the car hit me on the left side of the knee and turned me around, and my side hit the top of the curbstone and my head hit the curb. The distance between the two automobiles parked at the curb was about fifteen or twenty feet. I did not see the automobile strike me as I went to step up on the curb. The chauffeur did not blow his horn. He hit me, and turned me clear around. The automobile backed up on me from the west. I did not know the name of the car, but it was a big sedan. As I started between the automobiles I saw the one on the west, and looked both ways. The one on the west was the one that later struck me. It was not in motion the first time I saw it, nor was it moving when I started to go between the cars. I was about eight or ten feet east of it when I started through the space. I heard no horn sounded from the time I started to cross between the cars until I was struck. I did not get any warning of any kind. When the car hit me, it turned me clear around, and my head hit the pavement. When I left the store just prior to the accident, I stepped off the south curb and crossed the street, then across the car tracks going east and west, and saw the two parked automobiles probably twenty feet apart. There is always a lot of traffic on Delmar at that point. Sometimes the traffic is rather heavy about four o'clock in the afternoon. The sedan was about six or eight feet wide, and I continued to walk the six feet until I reached the curb. I was putting my right foot up on the curb when I was hit. I did not see the car until I was struck. If I had seen the car moving, it would not have hit me. As I was going through the space between the cars I was looking directly north. I did not pay any particular attention as to whether there was any one in the car east of me, nor did I see any one in the car that was west of me."

Fred L. Crow testified, for plaintiff, that he was about 10 feet away from the point where plaintiff was struck; that he saw that plaintiff was knocked down when he was struck; that he did not see plaintiff at any time before he was struck; that he heard no warning sound of any description.

Leonard Pothoff, defendant's chauffeur, produced as a witness on behalf of defendant, testified: "My car was parked right up to the curb. I came out of the store, started up the motor, and looked over my right shoulder to see how much room I had to back up in. I had about fifteen or twenty feet, I would judge, so I turned around, put the car in reverse, and began to move a little bit; then looked over my shoulder in time to see Mr. Hodgins hit. I stopped the car immediately. At the same time some one had already picked him up. I helped him up, and took him to the doctor and had him examined. I looked back after I started the motor and before I put the car in reverse. I did not see any one back there. I should judge I had moved about four or five feet before I looked the second time. The window in the rear of the sedan was about two feet long and about a foot high. The window in the rear of my car was just like an ordinary window in a LaSalle sedan. I had just looked over my shoulder when I saw Hodgins' head. I did not sound a horn at any time. I looked over my shoulder once, then started to back up, and happened to look over my shoulder to see how close I was to the automobile east of me, and then happened to see this man's head. It just happened when I looked over there, I saw his head going down. I then came down and saw this man had fallen, had been knocked down over the curb. At no time did I attempt to look over my left shoulder."

The cause was submitted to the jury solely under the humanitarian rule based on the failure of defendant's chauffeur to give a warning signal of the automobile's approach. This was done by instruction No. 1, given at the instance of the plaintiff.

Defendant assigns error, upon the giving of this instruction, on the ground that the submission of the cause under the humanitarian rule for failure to give a warning signal is not warranted by the evidence. Defendant bases this assignment on the theory that the evidence shows that plaintiff was not in a position of peril, and the chauffeur owed him no duty, under the humanitarian rule, until after the automobile started backward. In other words, defendant says that whatever negligence the chauffeur was guilty of before the automobile started backward was antecedent negligence, for which defendant is not answerable under the humanitarian rule. Proceeding upon this theory, defendant says that plaintiff's testimony shows that he was already in the path of the automobile when it started, and it does not appear that the chauffeur in the exercise of the highest degree of care could afterward have seen and warned plaintiff in time to have averted his injury. We are not persuaded to accept this view of the case made. The chauffeur looked back over his right shoulder before he started the automobile backward. Evidently the plaintiff had not then gotten into the range of his vision in his progress across the danger zone. After so looking, the chauffeur immediately started the car backward, and backed it 10 feet until it struck plaintiff as he was stepping up on the curb out of the path of the car. We think the jurors, in consideration of all the facts in their possession, including matters of common knowledge, along with such inferences as might be reasonably drawn therefrom, were warranted in finding that, if the chauffeur had looked, as he ought, when he started the car backward, he would have seen the plaintiff walking across the path of the car in time to have warned him by a blast of the horn, so that he would have extricated himself from the danger that threatened him. This is so, especially in view of the fact that he was taking the last step into a position of safety when he was struck.

We do not, however, accept the theory of defendant that as a matter of law plaintiff was not in a position of peril, and was not entitled to protection under the humanitarian rule, until after the automobile was started backward.

Notwithstanding the humanitarian rule, as defined by the courts of this state, appears to be a very plain and...