Iman v. Walter Freund Bread Co.

• Decision Date: 16 March 1933
• Docket Number: 30761
• Parties: Sam Iman v. Walter Freund Bread Company, Appellant
• Court: Missouri Supreme Court

58 S.W.2d 477

332 Mo. 461

Sam Iman v. Walter Freund Bread Company, Appellant

No. 30761

Supreme Court of Missouri

March 16, 1933

Appeal from Circuit Court of City of St. Louis; Hon. Harry Sprague, Judge.

Reversed and remanded.

Anderson Gilbert & Wolfort for appellant.

(1) Plaintiff's evidence shows not only that appellant was not guilty of negligence but that respondent was guilty of contributory negligence as a matter of law, and that there was no evidence justifying the submission of the case to the jury under the humanitarian theory, consequently the demurrer to the evidence should have been given. Plaintiff, himself testified that he saw the truck coming, continued to watch it, realized its speed, saw that it was not changing its course and continued to walk until he was directly in front of it, at which time it was only thirty feet away, traveling at the rate of a little over forty-four feet a second, that the driver swerved towards the curb and that after the driver swerved plaintiff began to run directly into the path of the automobile and was struck when within three or four feet of the curb. The evidence clearly shows the proximate cause of respondent's injuries was his own negligence in going in front of the truck. Gubernick v. United Rys. Co., 217 S.W. 35; Hall v. Railway Co., 240 S.W. 177; Roenfeldt v. Railway Co., 180 Mo. 566; Sissel v Railroad, 214 Mo. 528; Russell v. Bauer-Berger Grocery Co., 288 S.W. 988; Tannehill v. Railway Co., 213 S.W. 818; Clark v. Railway Co., 6 S.W.2d 961; Rollison v. Railroad, 252 Mo. 543; Goodson v. Schwandt, 318 Mo. 669; Goehring v. Beltz, 14 S.W.2d 503; White v. Mo. Motors Distributing Co., 47 S.W.2d 249; Markowitz v. Railroad, 186 Mo. 359; Burton v. Joyce, 22 S.W.2d 891; Doerr v. St. Louis Brewing Assn., 176 Mo. 556. (2) Withdrawal instructions lettered d, e, f, h, i, j and k should have been given. These instructions sought to withdraw assignments of primary negligence. Respondent's evidence conclusively established the fact that he was guilty of contributory negligence and that the proximate cause of the injury was respondent's own negligence and all of the foregoing assignments of negligence should have been withdrawn. See authorities cited under Point 1. (3) Withdrawal instruction lettered g should have been given. This instruction sought to withdraw from the jury's consideration the assignment of negligence bottomed on the humanitarian or last-chance doctrine and there was no evidence sufficient to justify the submission of this assignment to the jury. See authorities cited under Point 1.

Chas. E. Morrow and A. A. Alexander for respondent.

(1) Plaintiff was not guilty of contributory negligence as a matter of law. Frankel v. Hudson, 271 Mo. 495; Ternetz v. St. Louis Lime & Cement Co., 252 S.W. 70; McCaughen v. Railroad Co., 274 S.W. 97, 98. (2) There was ample evidence upon which to submit to the jury the assignment of negligence under the humanitarian doctrine that the defendant negligently failed to stop, slacken the speed of or turn its automobile aside, after the plaintiff became in peril, and thereby avoided injuring him. Banks v. Morris, 302 Mo. 254; Frankel v. Hudson, 271 Mo. 495; Silliman v. Munger Laundry Co., 44 S.W.2d 163; Mattocks v. Emerson Drug Co., 33 S.W.2d 145; Schmitt v. Shuplak, 42 S.W.2d 962.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This is an appeal by defendant from the judgment against it for $ 10,150 in plaintiff's favor in a personal injury action for injuries received by plaintiff from being struck by an automobile truck operated by defendant's driver. At the time of being struck and injured, the plaintiff was walking westward across Broadway, a wide north and south street in St. Louis, along the south line of Geyer Avenue, an east and west street. The defendant's truck was traveling south on the west side of Broadway, where it collided with plaintiff near the southwest corner of the intersecting streets. Plaintiff was struck and knocked down near the west curb of Broadway and received severe injuries.

Plaintiff's petition alleges a number of grounds of negligence on defendant's part, among them that the operator of the truck, as it approached plaintiff who was crossing the street in front of it, failed to drive his truck as near the west or right-hand side of the street as practicable; that he negligently swerved his truck to the right so as to strike plaintiff when he was trying to get out of its way, and negligently failed to so swerve the truck as to not strike plaintiff; that he was driving the truck at an excessive and dangerous rate of speed, considering the place and circumstances; that he negligently failed to keep a lookout for persons, and particularly plaintiff, who might rightfully be crossing the street at that point; that he also violated certain ordinances of the city regulating the speed of trucks and requiring them to keep as near the right-hand side of the street as practicable; that he violated what we call the humanitarian or lastchance rule of negligence in that the driver of this truck saw, or by ordinary care would have seen, this plaintiff in imminent peril and danger of being struck by this truck, in time, by the prompt use of the means and appliances at hand, to have stopped the truck, turned it to one side, or so slackened its speed as to have avoided striking the plaintiff. The answer is a general denial only. Plaintiff introduced his evidence, evidence, the defendant demurred thereto, which was overruled, the defendant offered no evidence, and the case went to the jury.

The plaintiff tried his case in a manner not commended by this court in that he put in his evidence and submitted the case, the defendant offering no evidence, without any instructions as to the law of the case other than an instruction on the measure of damages. Thus, while the petition states specifically in what way the defendant was negligent and what acts on its part, if found to be true, would constitute negligence, and the court, to whom alone the pleadings are addressed, was informed of the issues to be tried, yet the jury which was to try and determine such issues was left to grope in the dark as to the issues and without chart or compass to guide them in their deliberations. We say this because the only instructions given and read to the jury were the one on the measure of damages given for plaintiff and two withdrawal instructions given for defendant, the one telling the jury not to find for plaintiff because of defendant's violating any supposed ordinance of the city of St. Louis fixing the maximum rate of speed for trucks of a certain capacity, and the other not to find for plaintiff because of any supposed failure of the driver of the truck to sound his horn or give warning of the danger of the truck's approaching this crossing. We will qualify this by saying that the court did give another instruction for defendant telling the jury that plaintiff charged the defendant with negligence and that such charge must be sustained by a preponderance of the credible evidence and found to be "true as laid," and that the burden of proof as to this was on the plaintiff; but as to what negligence had to be proved or what acts of the defendant, if proved, would constitute negligence was left to the jury to guess as best it could. It is true that the defendant asked other instructions withdrawing other alleged grounds of negligence and telling the jury not to consider same or base a verdict thereon, but these instructions were refused and not read to the jury, and the jury did not know, even inferentially, that these grounds of negligence, whatever they were, were not withdrawn from their consideration. The defendant also asked a demurrer to the evidence, which the court refused, but the jury knew nothing of that.

The defendant made no objection, however, and saved no exception to the action of the court in thus submitting the case without instructions to guide and direct the jury in arriving at a verdict, and we must accept the situation as it is. We have, however, several times ruled that the plaintiff is not required to ask instructions on its part and the court is not required to give any unless asked. We need not discuss this matter further at this time.

Defendant's first insistence is that the court erred in not sustaining the demurrer to the evidence, but an examination of the argument discloses that this insistence is based not on a failure of the plaintiff's evidence to show negligence on the part of the operator of the truck, but on the fact that the plaintiff's evidence shows that he was himself guilty of contributory negligence as a matter of law, which barred his recovery. In this last contention we think defendant is correct. While plaintiff showed that defendant was negligent in more ways than one in running its truck against plaintiff yet he convicted himself of contributory negligence in deliberately walking in front of and in the line of travel of the on-coming truck. Plaintiff's evidence is that on the morning in question he walked west on the south side of Geyer Avenue to Broadway, which he had to cross in going to his destination; that it was then broad daylight and after waiting a moment at the curb to let a north-bound automobile pass, he looked and saw no cars near at hand and proceeded west across Broadway, some sixty or seventy feet wide and paved; that there were two street car tracks running north and south on Broadway which he would cross over; that as he approached the first or east street car track he saw defendant's truck turn into Broadway from the west on a side street about three hundred feet north of the crossing in question and then travel south astraddle of the west rail of the...