Hollister v. A. S. Aloe Co.

• Decision Date: 25 October 1941
• Docket Number: 37425
• Parties: Minnie D. Hollister v. A. S. Aloe Company, a Corporation, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 606

348 Mo. 1055

Minnie D. Hollister v. A. S. Aloe Company, a Corporation, Appellant

No. 37425

Supreme Court of Missouri

October 25, 1941

Rehearing Denied December 16, 1941.

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.

Affirmed.

Calvin & Kimbrell for appellant.

(1) The accident and plaintiff's injury were caused solely directly and proximately by the negligence of W. L. Hollister, husband of the plaintiff and driver of the car in which plaintiff was riding at the time of the accident. General Box Co. v. Mo. Utilities Co., 331 Mo. 845, 55 S.W.2d 442; Perkins v. Kansas City So. Ry. Co., 329 Mo. 1190, 49 S.W.2d 103; Laidlow v. Sage, 158 N.Y. 73, 52 N.E. 679; Salsedo v. Palmer, 278 F. 92. (2) There was no substantial evidence of actionable negligence, under the humanitarian doctrine, on the part of the driver of the truck. Burge v. Wabash Ry. Co., 244 Mo. 76, 148 S.W. 925; DeGonia v. St. Louis, etc., Ry. Co., 224 Mo. 564, 596, 123 S.W. 807, 819; Rollison v. Wabash Ry. Co., 252 Mo. 525, 160 S.W. 994; Underwood v. St. Louis, I. M. P. Ry. Co., 182 Mo.App. 252, 168 S.W. 803; Kuper v. Betzer, 115 F.2d l. c. 846. (3) The court erred in giving plaintiff's Instruction 1, for these reasons. (4) The court erred in giving plaintiff's Instruction 3. (5) The court erred in giving plaintiff's Instruction 5, for these reasons: (a) The theory or hypothesis that Dr. Hollister did not obey the stop sign and drove to the left of the center of Holmes Street was contrary to the sworn testimony of the plaintiff, who swore that he did obey the stop sign and did not drive to the left of the center of Holmes Street, her testimony upon this point constituting a judicial admission on her part and forbidding a recovery by her upon testimony contrary to her sworn testimony and judicial admission and contrary to the theory upon which he tried her cause. Murray v. St. Louis Transit Co., 176 Mo. 183, 75 S.W. 611; Behen v. Transit Co., 186 Mo. 430, 85 S.W. 347; Graefe v. St. Louis Transit Co., 224 Mo. 232, 123 S.W. 835; Steele v. Kansas City So. Ry. Co., 265 Mo. 97, 175 S.W. 177; Kansas City Granite & Monument Co. v. Jordan, 316 Mo. 1118, 295 S.W. 763; McCoy v. Home Oil & Gas Co., 60 S.W.2d 715; DeLorme v. St. Louis Pub. Serv. Co., 61 S.W.2d 247. (b) It submits a theory and hypothesis of recovery by plaintiff not within the pleadings, to-wit, the theory and hypothesis of concurrent negligence of Dr. Hollister and the truck driver, there being in plaintiff's petition no allegation of negligence on the part of Dr. Hollister and no allegation that negligence on his part was the proximate cause of the accident; (c) It injects a false and extraneous issue into the case and was confusing, misleading and prejudicial. Mengel v. St. Louis, 341 Mo. 994, 111 S.W.2d 5; Stewart v. Wenger, 125 S.W.2d 537; State ex rel. v. Allen, 344 Mo. 66, 124 S.W.2d 1080; Krodinger v. Citizens Bank, 300 S.W. 311; Howser v. Great Western Ry. Co., 319 Mo. 1015, 5 S.W.2d 59. (d) It erroneously and contrary to law advised the jury that sole cause in this case means a collision occurring without any intervening and concurring negligence whatever on the part of the truck driver, and that if the truck driver were negligent in any respect and that his negligence contributed in any degree to said collision, then the jury should find the issues with reference to sole cause under Instruction M, in favor of the plaintiff and against the defendant. Perkins v. Kansas City So. Ry. Co., 329 Mo. 1190, 49 S.W.2d 103; Cento v. Security Building Co., 99 S.W.2d 1. (6) The verdict of $ 10,000 was excessive for the reason that there was no causal connection shown between the negligence of the defendant, under the humanitarian doctrine, and the lame and atrophied condition of the plaintiff's left leg.

Allan R. Browne, Sam Mandell and Cowgill & Popham for respondent.

(1) The court properly overruled defendant's demurrer offered at the conclusion of all the evidence in the case. Steger v. Meehan, 63 S.W.2d 109; Schneider v. Term. Railroad Assn. St. Louis, 341 Mo. 430, 107 S.W.2d 787; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482. (2) Plaintiff's Instruction 1 was proper. Kick v. Franklin, 137 S.W.2d 512. (3) Plaintiff's Instruction 5 was properly given. Bouligny v. Met. Life Ins. Co., 133 S.W.2d 1094; Kick v. Franklin, 137 S.W.2d 512; Steele v. Kansas City So. Ry. Co., 265 Mo. 97, 175 S.W. 177. (4) The verdict of ten thousand dollars was not excessive. Emerson v. Mound City, 26 S.W.2d 766; Irwin v. St. Louis-S. F. Ry. Co., 325 Mo. 1019, 30 S.W.2d 56; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Tate v. Western Union Telegraph Co., 339 Mo. 262, 96 S.W.2d 364.

OPINION

Tipton, P. J.

This case comes to the writer on reassignment. Respondent recovered a judgment of $ 10,000 against the appellant in the Circuit Court of Jackson County, Missouri, for personal injuries she received on January 6, 1939, as a result of a collision between an automobile in which she was riding and a truck operated by the appellant. Appellant has duly appealed from that judgment.

The appellant first contends that the trial court erred in overruling its demurrer to the evidence because no submissible case was made under the humanitarian doctrine, the only issue of negligence submitted to the jury. In determining this question we must apply the familar rule that upon demurrer to the evidence, "the whole evidence, whether offered by plaintiff or defendants, must be searched and the plaintiff given the benefit of any and all facts and circumstances favorable to or tending to support her theory of the case and every reasonable inference deducible therefrom, while evidence on the part of and favorable to the defendants, which is contradicted, must be excluded." [Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809.]

With this rule in mind, we will therefore only state facts favorable to respondent on her theory of the case. On January 6, 1939, respondent was riding south on Holmes Street in Kansas City, Missouri, in an automobile driven by her husband, Dr. W. L. Hollister. As they approached Eighth Street, a street that runs east and west, Dr. Hollister stopped his car at a stop sign just north of Eighth Street. Holmes Street does not run straight south after Eighth Street is crossed, but there is a jog to the east. In driving across Eighth Street to continue south on Holmes, it is necessary to turn an automobile in a southeast direction. There are two street car tracks on Eighth Street. Respondent's evidence showed that on account of a building and automobiles parked east of Holmes Street on the north side of Eighth Street you could not see east on Eighth at the stop sign. After stopping at this sign, Dr. Hollister put his automobile in low gear and proceeded into Eighth Street, and as the front of the car came to the northernmost rail of the street car tracks, he stopped his car, which was facing at that time in a southeast direction. At this time, the appellant's truck was being driven west on Eighth Street at a speed of twenty-five or thirty miles per hour and was sixty feet east of the Hollister car. (One witness said the truck was one hundred feet away.) There was testimony to the effect that the driver of the truck made no effort to stop it until he was within fifteen feet of the Hollister car. The right front of the truck struck the left front of the Hollister car near the middle of the left front fender, shoving the Hollister car so that after the collision it was facing southwest. The evidence showed that there was no automobile or other obstruction between the front of the Hollister car and the south curb of Eighth Street. There was testimony on behalf of the respondent that appellant's truck traveling twenty-five or thirty miles per hour could be stopped in twenty-five to thirty feet under the conditions that then existed.

Appellant contends that the time that elapsed between the time the Hollister car stopped in Eighth Street was too short for its truck to have been stopped so as to have avoided the collision. It relies upon the following cases. [Burge v. Wabash R. Co., 244 Mo. 76, 148 S.W. 925; Degonia v. St. Louis, I. M. & S. Ry. Co., 224 Mo. 564, 123 S.W. 807; Rollison v. Wabash R. Co., 252 Mo. 525, 160 S.W. 994; Underwood v. St. Louis, I. M. & S. Ry. Co., 182 Mo.App. 252, 168 S.W. 803.] These cases deal with an accident involving railroads, while the case at bar involves an automobile. We have already ruled that the cases relied upon by the appellant would not be applicable to automobile collisions in the case of Steger v. Meehan, 63 S.W.2d 109, l. c. 110, where we said:

" . . Defendants cite Rollison v. Wabash R. Co., 252 Mo. 525, 160 S.W. 994, to the effect that negligence cannot be predicated on two seconds of time. We agree that under the circumstances of that case it could not be. However, it is possible to do things to avoid running over persons with automobiles, which cannot be done with railroad trains, such as swerving aside. Moreover, while a railroad engineer is only required to use ordinary care, the driver of an automobile upon public streets has the duty to exercise the highest degree of care at all times and places to prevent injury. [Hart v. Weber (Mo. Sup.), 53 S.W.2d 914.] The greatly increased speed and use of automobiles and their improved brakes and other appliances has greatly speeded up traffic on our streets and highways. These things and the greater duty resting upon their drivers have also speeded up the humanitarian doctrine as applied to them. If an automobile can be driven (at 25 miles per hour) 75 feet in two seconds, surely it can be swerved 3 or 4 feet to one side in that time to avoid striking...