Kelly v. Lahey

Decision Date18 July 1950
Docket NumberNo. 27800,27800
Citation232 S.W.2d 177
PartiesKELLY v. LAHEY.
CourtMissouri Court of Appeals

Francis R. Stout, of St. Louis, for appellant.

Joseph W. Murphy, Keegan & Rickhoff and Gregg W. Keegan, all of St. Louis, Orville Richardson, of St. Louis, of counsel, for respondent.

WOLFE, Commissioner.

This is a suit for damages arising out of personal injuries sustained by the plaintiff when a stretcher he was adjusting was struck by defendant's ambulance. The Illinois Terminal Railroad Company was originally joined as a defendant but a motion for a directed verdict was submitted by it and sustained by the court at the close of plaintiff's case. The trial continued against the defendant, Francis Lahey, and the jury returned a verdict against him in favor of the plaintiff in the sum of $9,500. This amount was reduced to $6,000 after an order of remittitur by the trial court. The defendant appeals.

George Kelly, the plaintiff, was employed as an ambulance driver for the City of St. Louis. Early in the morning of December 14, 1947, he answered a call to an accident that had occurred on McKinley Bridge. A train of the Illinois Terminal Railroad had collided with an automobile at a point on the bridge slightly west of the Missouri bank of the Mississippi River.

Kelly drove the city ambulance to the scene of the accident and found there the wrecked automobile with its rear end against the south rail of the bridge and its front facing northward. He drove past the automobile and stopped about 15 feet from it. In the front seat of the automobile was an unconscious woman. The door beside her was jammed and Kelly, with the aid of policemen who were present, managed to pull it open. A metal stretcher on wheels was placed at a convenient distance from the wrecked automobile and parallel to it. Kelly put the woman upon the stretcher and fastened the breast straps over her. He then started to fasten the foot straps when an ambulance coming from the east struck the stretcher causing it to hit Kelly and to knock him back into the wrecked automobile.

It was not until after this had occurred that Kelly saw the ambulance but just prior to the time it hit the stretcher he heard some one shout and the people who were assisting him jumped aside. The police officers called as witnesses by the plaintiff testified that they saw the defendant's ambulance approaching while it was some distance away but they assumed that it would stop. As it got within about 30 or 40 feet of them it skidded on a heavy frost which covered the road surface of the bridge and ran into the stretcher.

Warning flares were burning and an employee of the Terminal Railroad some 150 or 200 feet east of the accident had attempted to flag the ambulance to a stop but its siren was sounded and it continued ahead.

Jerry Zahn, the driver of the defendant's ambulance, testified that he received an emergency call at 5:00 a. m., directing him to go to an accident on McKinley Bridge, and that he drove about two miles to the bridge. The road that he traversed on his way there was dry but the bridge surface had moisture upon it. He knew that the surface was slippery when wet as he had traveled it in all kinds of weather and he described its condition on that day as being dewy. He testified that he saw the wrecked car ahead of him when he was 150 feet east of it and slowed his ambulance down to a speed of 10 or 12 miles per hour. When he was 75 feet away he again reduced his speed and was traveling at about 4 or 5 miles per hour when he reached a point 30 feet from the wrecked car. Here he applied his brakes in an attempt to stop but the ambulance slid forward into the wrecked automobile. Zahn backed his ambulance away and the plaintiff, with the assistance of the police officers, placed the injured woman in the city ambulance and drove it to the City Hospital.

Kelly's knee and back pained him and after reaching the hospital X rays were taken of his leg after which he was sent home. A Dr. Klein was called to see him and found him complaining of pains in his back and left knee. Both of these areas were discolored by bruises on the day following. At the time of the trial Kelly still complained of pain in his back and was wearing a belt designed 'to support the lumbo-sacral muscles and the sacro-iliac area'.

The petition charged both specific negligence and humanitarian negligence but the plaintiff elected to go to the jury on the latter charge.

Instruction No. 2, which submitted the case to the jury under the humanitarian doctrine, predicated a verdict for the plaintiff on the failure of defendant's driver 'to have stopped the said automobile-ambulance, swerved the same or sounded a warning of the approach and movement of the said automobile-ambulance, and thus have avoided colliding with a stretcher which struck plaintiff'. It is contended that the instruction was erroneous in that the facts did not present a case within the humanitarian rule. The defendant asserts that when we view the evidence in a light most favorable to the plaintiff it falls short of proving that the defendant's driver could have done anything to avert striking the stretcher after the plaintiff came into a position of discoverable peril.

The plaintiff himself did not see the ambulance but did hear some one shout, 'Look out', immediately before it struck the stretcher. It was a police officer named Dalton that had shouted the warning and in testifying on behalf of the plaintiff he stated that he saw the ambulance coming from about two blocks distance. He was standing at the door of the wrecked car and waved his flashlight. He thought the ambulance would stop. Describing the incident further Dalton stated: 'He came over with his lights blinking, and there was a lot of frost, just like a light of snow on the bridge, and he just skidded right into the whole bunch there.'

Officer Silch, who was also assisting at the accident, stated that he heard the ambulance siren and looked up and saw its lights approaching. When it reached a point 40 or 50 feet away it was traveling at the rate of 15 or 20 miles per hour. Then he related: 'Well, it appeared that he was applying his brakes, but it didn't stop, he was skidding, and when he got about 20 feet away, we saw he was going to hit us, and I jumped back, and, I don't know, Kelly was in between the car and the stretcher, and it happened so quick, the left side of that ambulance hit the stretcher and forced the stretcher against the car, and Kelly----'.

The humanitarian doctrine as it relates to the driving of automobiles on public highways embraces situations where the plaintiff, oblivious of his danger, is in a position of imminent peril of being struck by the defendant's car. After such peril is discoverable, in the exercise of the highest degree of care, the defendant is required to use the means at hand, with safety to himself, to avoid injuring the plaintiff. Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935; Wright v. Spieldoch, 354 Mo. 1076, 193 S.W.2d 42; Smith v. Fine et al., 351 Mo. 1179, 175 S.W.2d 761.

In the case of Smith v. Siedhoff, Mo.Sup., 209 S.W.2d 233, loc. cit. 236, our Supreme Court stated: 'Even so much as a birds-eye view of the personal injury litigation in this state for the past three or four decades would demonstrate how widely the humanitarian rule has been sought to be invoked and applied to varying states of fact. The case made law of Missouri has widely extended the rule, far beyond its original concept. But not every state of facts resulting in injuries from moving objects gives rise to such a cause of action.'

The extent to which the humanitarian rule has expanded beyond its original concept has not altered the requirement that its application is confined to the space of time after the peril is discoverable and the rule is not applicable to the negligence of the defendant prior to the time the peril arose. In other words, the...

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    ... ... Co., 331 Mo. 933, 55 S.W.2d 673, 676; Mt. Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co., 285 Mo. 669, 227 S.W. 67, 74(6); Kelly v. Lahey, Mo.App., 232 S.W.2d 177, 180(3, 4). We need not determine the applicability of the rule under the facts of this case, because we find no ... ...
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