Housley v. Berberich Delivery Inc.

• Decision Date: 05 November 1935
• Docket Number: No. 23493.,23493.
• Parties: HOUSLEY v. BERBERICH DELIVERY INC.
• Court: Missouri Court of Appeals

87 S.W.2d 209

HOUSLEY v. BERBERICH DELIVERY INC.

No. 23493.

St. Louis Court of Appeals. Missouri.

November 5, 1935.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Action by William Housley against the Berberich Delivery Incorporated. Judgment for plaintiff, and defendant appeals.

Affirmed.

Leahy, Saunders & Walther and Lyon Anderson, all of St. Louis, for appellant.

Eagleton, Waechter, Yost, Elam & Clark, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for personal injuries sustained by plaintiff, William Housely, when struck by a motorcycle being driven by one Tony Leoni in the course of his employment by defendant, Berberich Delivery Incorporated. From a verdict and judgment for plaintiff for $2,500, defendant has duly appealed.

The case was submitted upon the theory of negligence under the humanitarian doctrine, based upon the idea that the driver of the motorcycle, by the exercise of the highest degree of care on his part, could have seen plaintiff in a position of imminent peril of being struck, in time thereafter, with the means at hand and with reasonable safety to himself, to have stopped his motorcycle, slowed its speed, or swerved it so as to have prevented the motorcycle from striking plaintiff.

The accident happened about 4 o'clock in the afternoon of July 12, 1932, at a point on Forest Park boulevard about 350 feet east of its intersection with Vandeventer avenue, in the city of St. Louis.

Forest Park boulevard, which runs east and west, is about 85 feet in width, with a parkway so located in the center as to leave a space 30 feet in width north of the parkway for westbound traffic, and a corresponding space south of the parkway for eastbound traffic. Vandeventer avenue runs north and south, and intersects Forest Park boulevard at right angles.

At a point some 350 feet east of Vandeventer avenue, the parkway in the center of Forest Park boulevard is broken or divided by a paved strip or passway, 20 feet in width from east to west, and made to connect the two roadways of the boulevard; its purpose, among others, being to afford convenient access between a garage or shed located some 45 feet back of the south side of the boulevard in a line with the break in the central parkway, in which garage or shed the city of St. Louis kept the wagons which it used in its municipal activities, and its stable located directly across and on the north side of the boulevard where its mules were confined when not in use. Plaintiff, incidentally, was in the employ of the city as the driver of a dirt wagon, and so had frequent occasion, in the course of his employment, to cross Forest Park boulevard at the point in question.

On the day of the accident, having completed his work for the day, plaintiff drove into the garage where his wagon was to be kept, unhitched his span of mules, and started with them to the stable on the north side of the street, to reach which it was of course necessary that he cross the south roadway of the boulevard, go through the strip or passway in the central parkway, and then cross over the north roadway to the entrance to the stable located at that point.

Plaintiff was walking about 3 feet behind the mules, holding onto the reins with which he controlled their movements; and when he himself came to the south curb of the street, he stopped the mules, looked to the west for approaching traffic from that direction, and saw defendant's motorcycle then crossing Vandeventer avenue, eastbound, at a speed which plaintiff estimated at 50 or 60 miles an hour, but which the driver of the motorcycle said was from 25 to 30 miles an hour. It is to be borne in mind that the motorcycle at that moment was 350 feet distant from the path that plaintiff was about to take, and was being driven in a course which took it immediately alongside the south curb of the central parkway.

What plaintiff's idea of the probabilities of the situation must have been is to be left only to inference, but at any rate he started his mules forward at a walk and continued on at that gait across the south roadway, keeping his eyes all the while upon the oncoming motorcycle, and observing, as it approached him, that its driver, instead of watching ahead, was looking back over his shoulder towards Vandeventer avenue. Just as the mules entered upon the paved strip or break in the parkway and while plaintiff himself was still out some 7 feet in the roadway, he called out a warning to the driver of the motorcycle, who was then within 10 feet of him. At the same time plaintiff attempted to increase the speed of his mules and to run forward out of danger, but all to no avail; the motorcycle striking the mule on the left and then striking plaintiff as well, knocking him down and inflicting the injuries for which he claims damages in this action.

The principal issue raised on this appeal involves the question of the correctness of the court's submission of the case for negligence under the humanitarian doctrine as hypothesized by plaintiff's instruction No. 1. We have already referred at the outset of the opinion to the theory and predicates of liability upon which the case was submitted; and it will suffice to say that defendant's present complaint goes wholly to the fundamental proposition of whether there was a basis in the evidence in the case for the application of the humanitarian doctrine.

In insisting to the contrary, defendant argues that because of plaintiff's admittedly full appreciation of the near approach of the motorcycle, the danger to which he was otherwise to be exposed from it was entirely avoidable through his own efforts; that he was therefore never within a position of peril within the contemplation of the humanitarian doctrine until he had allowed himself to come into a position from whence he himself was no longer able to avoid a collision; and that after plaintiff found himself in a situation in which he might be said to have been in unavoidable danger so far as concerned his own ability to extricate himself therefrom, the driver of the motorcycle was likewise precluded by the shortness of time and space from the opportunity to avert the collision, so that under all the circumstances in evidence, no case was made for the application of the humanitarian doctrine.

Stated somewhat differently, defendant insists that plaintiff's active negligence, continuing from the moment he voluntarily left the curb and started forward into the path of the oncoming motorcycle until the moment when the relative positions of the parties became such that neither party had the chance to avert the injury, became a concurrent, proximate cause of the accident; and that even though defendant's driver was unquestionably to be charged with constructive knowledge of plaintiff's peril short of the collision itself, still the humanitarian doctrine should not be invoked in plainti...