Johnston v. Ramming

• Decision Date: 05 January 1937
• Docket Number: 34272
• Parties: Jean Johnston, a Minor, by Mildred Johnston, Next Friend, v. C. Carl Ramming, Appellant
• Court: Missouri Supreme Court

100 S.W.2d 466

340 Mo. 311

Jean Johnston, a Minor, by Mildred Johnston, Next Friend, v. C. Carl Ramming, Appellant

No. 34272

Supreme Court of Missouri

January 5, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Reversed and remanded (with directions).

Wm R. Schneider for appellant.

(1) An instruction properly based on defendant's evidence and theory of defense to the effect that the defendant could not have averted the injury in the exercise of the highest degree of care with the means and appliances at hand and with safety to himself is not error, in a case submitted solely on the humanitarian doctrine. Such evidence shows that the humanitarian rule does not apply, defeats plaintiff's case and should be given as defendant's theory of defense under the evidence. State ex rel. v. Becker, 85 S.W.2d 423; Gray v. Columbia Terminals Co., 52 S.W.2d 809; Shumate v. Wells, 9 S.W.2d 623; Lamoreaux v. Ry. Co., 73 S.W.2d 330. (2) An instruction, based on the evidence, which assumes a plaintiff to be in peril or danger while running toward and so near to the path of an oncoming automobile that she cannot avoid the path, is not erroneous because it does not refer to the plaintiff as approaching the path of the automobile. Taylor v. Kelder, 88 S.W.2d 440; State ex rel Himmelsbach v. Becker, 85 S.W.2d 423. (3) An instruction which tells the jury that questions asked on voir dire about a certain insurance company do not constitute evidence of either plaintiff or defendant being insured, and should be disregarded by them in arriving at their verdict, is not erroneous. Brooks v. Menaugh, 284 S.W. 805.

N. Murry Edwards for respondent.

(1) The court erred in giving Instruction 3, which attempted to submit the humanitarian doctrine, the sole issue in the case, because defendant admitted that he saw plaintiff several feet to the side of his automobile and this instruction limited the danger zone to the path of defendant's automobile. Therefore, the trial court properly sustained plaintiff's motion for a new trial upon this ground. Gray v. Columbia Terminals Co., 52 S.W.2d 812; Shumate v. Wells, 9 S.W.2d 635; Causey v. Wittig, 11 S.W.2d 15; Jageles v. Berberich, 20 S.W.2d 579; Thompson v. Railroad Co., 18 S.W.2d 406; Taylor v. Kelder, 88 S.W.2d 440; Meeks v. K. C. Pub. Serv. Co., 73 S.W.2d 337. (2) The court erred in giving defendant's Instruction 6, because said instruction directed the jury that although they were asked if they had any interest in the Southern Indemnity Insurance Company, that they were now instructed that there was no evidence in this case of either plaintiff or defendant being insured in respect to the accident and they would, therefore, disregard the question of the indemnity company. The court, therefore, properly assigned this as error in granting plaintiff a new trial. Brooks v. Menaugh, 284 S.W. 805.

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

OPINION

FERGUSON

Jean Johnston, an infant, brought this action in the Circuit Court of the City of St. Louis, by her next friend Mildred Johnston (her mother), for damages for personal injuries sustained when she was struck by an automobile owned and driven by defendant Ramming. The collision occurred on December 22, 1933, at or near the intersection of Laclede Avenue and Spring Street in the city of St. Louis. Upon a trial of the cause the jury returned a verdict for the defendant. The trial court sustained plaintiff's motion for a new trial and specified of record as grounds therefor error in giving, at the request of defendant, instructions numbered 3 and 6. The defendant appealed from the order granting a new trial. The petition alleges damages in the amount of $ 15,000 wherefore our jurisdiction of the appeal.

As appellant here, defendant contends that under the facts shown by his evidence his instructions 3 and 6 were not erroneous and were properly given. Respondent does not present or urge any of the other alleged errors set out in the motion for a new trial as grounds on which it ought to have been sustained and we therefore confine our ruling to the two instructions given at defendant's request and specified by the trial court as grounds for the order granting the new trial. This necessitates a summary of the evidence.

Laclede Avenue in the city of St. Louis is an east and west street. Spring Street, a north and south street, intersects Laclede Avenue. There are two parallel, east and west, street car tracks in the center section of Laclede Avenue. There are no street car tracks on Spring Street. Laclede Avenue, from curb to curb, is forty-six feet wide. Spring Street, south of Laclede Avenue, is thirty feet wide, from curb to curb. The following other undisputed measurements may be found pertinent. It is fifteen feet and six and one-half inches from the north rail of the north (westbound) street car track, on Laclede Avenue, to the south rail of the south (eastbound) street car track; fifteen feet and four inches from the south rail of the south (eastbound track) to the south curb of Laclede Avenue; two feet and ten inches from the south curb of Laclede Avenue to the sidewalk along the south side of Laclede Avenue; the sidewalk is six feet wide. A Kroeger store is located at the northeast corner of the intersection of Laclede Avenue and Spring Street; there is a vacant lot at the southeast corner and a "confectionery store" at the southwest corner. This confectionery store is referred to as "McCoy's" and plaintiff's evidence is that "it sets off of the corner 25 feet or more" and "faces north on Laclede Avenue." This statement is somewhat confusing but the inference the writer has drawn is that the confectionery store is located twenty-five feet or more south of Laclede and about the same distance west of Spring Street. However a plat showing the situation and distances, not reproduced in this record, was in evidence and before the jury. Plaintiff was, at the time, eight years of age. "About four o'clock on that afternoon she was with her mother at the Kroeger store on the northeast corner of the intersection. Plaintiff testified that she "left" her mother in the Kroeger store and started alone to McCoy's; that she first crossed Laclede Avenue to the south side thereof (being the southeast corner of the intersection) and while going thence west across Spring Street was struck by plaintiff's automobile moving south, across the intersection, on Spring Street.

Plaintiff and defendant are the only witnesses testifying as to the place and circumstances of the collision and the events immediately surrounding same. They relate contradictory versions. Plaintiff testified, in substance, that in attempting to cross Spring Street, from the east toward the west, she followed the usual path of pedestrians along the south side or line of the intersection; that before going into Spring Street "I looked both ways" but "did not see any automobile at all;" that she "then started" across the street and was "right in the middle of Spring Street" (the street is thirty feet wide from curb to curb) when she "first saw" defendant's automobile coming from the north and it was then in the intersection and on the north (or westbound) street car track on Laclede Avenue, according to the measurements, supra, the automobile was then approximately thirty to thirty-two feet from the path of pedestrian travel along the south side of the intersection that when "I saw Mr. Ramming's car on the first of the two tracks I tried to run to make it across the street;" that "the automobile struck me . . . it hit my right leg and I grabbed onto the headlight on the right side" of the automobile. Defendant testified that at the time of the collision a continuous line of automobiles were parked along the curb for a half block or more on both sides of Spring Street south of Laclede; that "the only place where there was any room (in this half block) for another car to get in was on the west side of the street at the fire plug . . . the balance of the street was filled with automobiles on both sides;" that these parked automobiles extended out from the curb into the street, on each side, six and one-half to seven feet (the street being thirty feet wide from curb to curb the open space for travel would thus be reduced to sixteen or seventeen feet); that "the center line of Spring Street (south of Laclede) was then about eight or nine feet from the outside of the automobiles parked on either side;" that driving south on Spring Street, north of Laclede, and upon reaching Laclede Avenue, or the north side of the intersection, he brought his automobile to a complete stop and waited until an automobile moving east on Laclede Avenue had passed; that he then had a clear view to the south, east and west; that he did not see plaintiff nor any other pedestrian in the intersection or about to enter thereon; that he then started his automobile and moved south across the intersection; that as he "crossed Laclede" he "noticed an automobile coming north about the alley south of Laclede on Spring Street;" that this northbound automobile was traveling on the east side of and about "a foot or two" from the center line of Spring Street; that his automobile was traveling on the west side of and about "one or two feet" from the center line of the street; that about twenty-five feet south of the south line of the intersection, and pedestrian path of travel over the south side of the intersection, the northbound automobile passed his automobile and plaintiff suddenly appeared or came in view from behind and "around in back of" the passing automobile, about two feet east of the center of the street and about six feet south of his automobile; that when she thus came into view "she was running...