Holland v. Lester

Decision Date05 December 1962
Docket NumberNo. 8146,8146
Citation363 S.W.2d 75
PartiesCharles HOLLAND, Plaintiff-Respondent, v. Hoyt C. LESTER, Defendant-Appellant.
CourtMissouri Court of Appeals

Blanton & Blanton, David E. Blanton, Sikeston, for appellant.

Sharp & Hatley, Charles C. Hatley, New Madrid, for respondent.

McDOWELL, Judge.

This appeal is by defendant, Hoyt C. Lester, from a verdict and judgment of $2,000 in favor of plaintiff, Charles Holland, for personal injuries sustained when defendant's truck collided with, and ran over plaintiff, on Missouri State Highway 162 in New Madrid County, Missouri.

Plaintiff's petition was based upon both primary and humanitarian negligence on the part of defendant but was submitted to the jury only on the theory of humanitarian negligence.

Defendant's answer was a general denial and a plea of contributory negligence.

The cause was submitted to the jury on plaintiff's evidence. Defendant, at the close of plaintiff's case and at the close of all of the evidence, offered a motion for directed verdict and stood on the same, offering no evidence. The verdict was a ten-man verdict. Defendant failed an aftertrial motion for judgment in keeping with his motion for directed verdict which was by the court overruled, resulting in this appeal.

There are two issues raised on this appeal. First, that plaintiff's petition failed to state a cause of action based on humanitarian negligence.

Second, that the evidence offered by plaintiff failed to sustain the burden of proof of the essential elements of humanitarian negligence and the court erred in submitting the case to the jury on that theory.

We will state the evidence offered by plaintiff which is most favorable to him. On September 8, 1961, plaintiff left his place of employment at an Arnold, Missouri, filling station, after work hours, and started to Gideon to pick up his wife. He had car trouble, left his automobile at St. Genevieve and caught a bus for Portageville, where he arrived early in the morning on September 9th, got off the bus and started walking from Portageville to Gideon. He testified he walked down through the town of Portageville and got on Missouri State Highway 162. He was dressed in a pair of tan pants and a light blue shirt. Plaintiff testified that he stopped at the corner of the intersection of said highway and a north and south road, which was located on the west side of Portageville, and smoked a cigarette while he was waiting for a car coming from the west to pass. He testified he started walking in a westerly direction on the north side of Highway 162 toward Gideon and that, as he was approaching a house on the north side of said highway, he heard some dogs barking which he knew to be mean; that he started to cross the road to the south side when he blacked out or fell asleep; that he did not know whether he got across the road or where he was. He said the next thing he remembered was that he came to under the defendant's pickup truck, south of the white line. The evidence is undisputed that plaintiff's body was just south of the white line in the center of the road, his head toward the west and his feet to the east. Plaintiff's evidence is that he had no knowledge whatsoever as to how defendant's truck got straddle of him in the center of the road. He testified that his body from his chest back was under the truck. There was other evidence on the part of plaintiff that his head was just sticking out from under the hood at the front end of the truck. The evidence is that plaintiff hollered for them to get him out from under the truck or jack up the truck; that defendant and a lady by the name of Hatfield were in the truck at the time of accident and that John Via and Judge Wright were in a station wagon which they parked some 30 or 40 feet on the north side of the road from where the accident occurred with about a third of their car on the pavement; that Via got in the truck and backed it off of plaintiff and that Mrs. Hatfield and defendant got him up, put him in the truck and took him to his mother-in-law's home in Gideon; that defendant got an ambulance and helped put plaintiff in the same and he was taken to the hospital at Kennett. That defendant took plaintiff's mother-in-law and a small girl to the hospital so they could be with plaintiff.

Shortly after plaintiff was removed to the hospital, he told a Missouri Highway Trooper that he started across the road, saw car lights coming from the west toward him; that he didn't know what happened to that car, whether it got him or not, and that he next remembered waking up or coming to under defendant's pickup truck, which had stopped straddle of him. He stated he was under the front end of the truck and it had to be backed off of him; that the wheels of the truck had not run over him. It was about an hour and forty-five minutes from the time he got off the bus.

The evidence is that the defendant, accompanied by one, Marjorie Hatfield, a young, estranged, married matron, had engaged in a nighttime of extracurricular activities. During the evetide and the night that followed, the defendant, accompanied by his guest, had something to drink at Gibbs Bar in Gideon before going to Wardell where, at a bar, he had about three beers and, later in Caruthersville at the 'Climax', he had some kind of little drink in a glass--'maybe two, three or four, or something like that', but had nothing to drink after 10:00 o'clock P.M. Later, they went to a room. Early the next morning defendant, with his guest, started to return from Caruthersville to Gideon via Portageville. After he left Portageville, going west on Highway 162, he was following a station wagon. The lights on his pickup truck at the time were on dim and the lights on the station wagon were on high beam. The evidence is that as the station wagon turned west from the intersection of Highway 162 and a road running north and south at the west side of Portageville, the driver observed an object in the road in front of him but could not determine what it was. As he approached, in about 200 feet of the object, he observed it was a man lying on the south traffic lane just south of the white line in the road. The driver started to stop but, because the road at the place where plaintiff's body was lying was so narrow, he stopped 30 or 40 feet west beyond where plaintiff was lying and parked his station wagon on the north side of the road leaving about one-third of it on the pavement.

The defendant slowed down before he got to the station wagon, then speeded up to about 50 miles per hour to pass and gradually swung over to the south side of the road and came to a stop, straddling plaintiff who was, at the time, lying in the middle of the road.

John Via testified that when he saw that the object in the road was a man he looked back to see the lights of defendant's car to see whether he was going to run over him. He stated he did not know how far defendant's car was from plaintiff at the time he turned to the south to pass; that the accident occurred about 4:10 A.M., and it was still dark.

The evidence is undisputed that the wheels of defendant's truck did not run over plaintiff; that as the front of the truck was going over plaintiff, Mrs. Hatfield saw plaintiff and screamed. The defendant applied the brakes. Mrs. Hatfield did not know whether it was before or after she screamed that defendant asked 'What was that?' and she said, 'It's a man.' She testified that the defendant was not intoxicated at the time of the accident. The plaintiff's wife, who talked to the defendant after the accident, and her mother, who rode with defendant in the pickup truck from Gideon to Kennett, testified that they smelled alcohol on defendant but admitted that defendant had no difficulty in driving the truck.

The Trooper talked to the defendant at 5:50 A.M., on the day of the accident and testified that he did not appear to be under the influence of intoxicants. Defendant did not take the stand and no evidence was offered on his behalf. There was no evidence offered as to the width of the road at the place of accident. There was evidence by John Via that they had to drive past the body to find a place wide enough to park; that the road at the place of accident was very narrow. The Trooper testified that he did not measure the road at the place of accident as to width; that he thought there was a shoulder on the road about two feet wide and ditches on each side about two feet deep. However, his report showed there were no shoulders on the road at the place of accident.

The plaintiff testified that he had walked about 200 to 300 feet west from the corner where he entered Highway 162 to where he started to cross the road and had his blackout.

In our opinion we will refer to appellant as defendant and to respondent as plaintiff, the position occupied by the parties in the lower court.

It is defendant's first contention that the amended petition did not contain all of the essential elements of a charge of humanitarian negligence in that it was not alleged that the defendant could not have avoided collision between the defendant's pickup truck and the plaintiff, who was lying on the traveled portion of the road, with safety to himself and his passengers. That the trial court erred in not sustaining defendant's motion for directed verdict because the petition failed to state a cause of action.

We find there is no merit to this contention. This point was decided by the Supreme Court, en banc, in Fenneren v. Smith, Mo., 316 S.W.2d 602, 605 [1, 2]. This very contention was before the Supreme Court and the court stated:

'Before approaching the review of plaintiff-respondent's contentions, we shall consider the contention of defendants-appellants that plaintiff's petition was insufficient in stating a claim of negligence under the humanitarian rule. Plaintiff had alleged that, although 'the defendants...

To continue reading

Request your trial
5 cases
  • Graham v. Conner
    • United States
    • Missouri Court of Appeals
    • January 30, 1967
    ...375 S.W.2d 633, 637(1).4 Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 600(1); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80; Reames v. St. Louis-San Francisco Ry. Co., Mo.App., 359 S.W.2d 230, 235(2).5 In Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788......
  • Lane v. Wilson
    • United States
    • Missouri Court of Appeals
    • May 20, 1965
    ...to give cross-claimant the benefit of inferences which are not reasonable. Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80; Reames v. St. Louis-San Francisco Ry. Co., Mo.App., 359 S.W.2d 230, The time of accident was about 3:30 P.M. on Sunday, May......
  • Dillon v. Hogue
    • United States
    • Missouri Court of Appeals
    • August 26, 1964
    ...or to give plaintiffs the benefit of inferences other than reasonable ones. Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80; Reames v. St. Louis-San Francisco Ry. Co., Mo.App., 359 S.W.2d 230, At and near the point of accident, Highway 105 runs ge......
  • Martin v. Sherrell
    • United States
    • Missouri Court of Appeals
    • June 27, 1967
    ...than reasonable ones (Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 600(1); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80), and does not accord to plaintiff the benefit of defendant's evidence which is contrary to her own or at war with her fundamen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT