Kimbrough v. Chervitz

• Decision Date: 02 April 1945
• Docket Number: 39200
• Parties: Amos W. Kimbrough v. Morris Chervitz, Appellant
• Court: Missouri Supreme Court

186 S.W.2d 461

353 Mo. 1154

Amos W. Kimbrough v. Morris Chervitz, Appellant

No. 39200

Supreme Court of Missouri

April 2, 1945

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Reversed and remanded.

Wilbur C. Schwartz and Chelsea O. Inman for appellant.

(1) The evidence introduced by defendant tended to show that plaintiff ran in front of the westbound streetcar and in front of defendant's automobile when the automobile was only five or six feet away and could not be stopped in less than twelve feet; that the streetcar obstructed defendant's view so that he could not have seen the plaintiff sooner. Therefore, the defendant was entitled to a proper sole cause instruction based upon the foregoing facts. Doherty v. St. L. Butter Co., 339 Mo. 996, 98 S.W.2d 742; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373. (2) Instruction E requested by defendant properly submitted the issue of plaintiff's negligence as the sole cause of his injury by requiring the jury to find that plaintiff ran across Easton Avenue, closely in front of a moving westbound streetcar and into the path of defendant's automobile, at a time when defendant's automobile was approaching and so near to plaintiff that plaintiff should have known a collision was likely to result that in so running in front of the streetcar plaintiff was negligent and that such negligence was the sole cause of the collision, and that the same was not caused by any negligence of the defendant in any of the particulars submitted in other instructions. It was reversible error to refuse this instruction. Johnson v. Dawidoff, 177 S.W.2d 467; Bashkow v. McBride, 177 S.W.2d 637; Broderick v Brennan, 170 S.W.2d 686; Hopkins v. Highland Dairy Farms, 159 S.W.2d 254; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Bronson v. Abernathy, 130 S.W.2d 562, 344 Mo. 1171; Mendenhall v. Neyer, 149 S.W.2d 366, 347 Mo. 881; Jurgens v. Thompson, 169 S.W.2d 353; Shields v. Keller, 153 S.W.2d 60, 348 Mo. 326; Doherty v. St. Louis Butter Co., 98 S.W.2d 742, 339 Mo. 996; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Boyce v. Donnellan, 168 S.W.2d 120. (3) The evidence tended to show that plaintiff suddenly ran closely in front of the westbound streetcar and into the path of defendant's automobile; that defendant didn't see and could not, by the exercise of the highest degree of care, have seen plaintiff in time to have avoided striking him. Defendant was entitled to a converse instruction under the humanitarian doctrine based upon the defendant's evidence. Broderick v. Brennan, 170 S.W.2d 686; Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 467; Johnson v. Dawidoff, 177 S.W.2d 467. (4) Instruction F offered by defendant was a proper converse instruction under the humanitarian doctrine, since it required the jury to find that plaintiff attempted to run across Easton Avenue, running in front of a moving westbound streetcar toward the path of defendant's automobile; that the streetcar obstructed defendant's view of plaintiff so that defendant did not see and, by the exercise of the highest degree of care, could not have seen plaintiff in a position of imminent peril in time to have prevented the injury to plaintiff by the exercise of the highest degree of care. It was reversible error on the part of the trial court to refuse this instruction. Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 467; Oliver v. Morgan, 73 S.W.2d 993. (5) Defendant's counsel should have been allowed to argue to the jury that plaintiff must recover if at all upon his own theory that he was walking across the street and did not run in front of defendant's automobile in such close proximity that defendant could not avoid the accident, and it was error on the part of the trial court to disallow such argument. Elkin v. St. L. Pub. Serv. Co., 235 Mo. 951, 74 S.W.2d 600; Pentecost v. Wabash Ry. Co., 334 Mo. 572, 66 S.W.2d 533; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W.2d 864; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7. (6) Defendant's counsel was entitled to argue that plaintiff was required to exercise ordinary care for his own safety and in failing to do so was guilty of negligence which was the sole cause of the accident. The court erred in disallowing such argument. Grab v. Davis Const. Co., 233 Mo.App. 819, 109 S.W.2d 882; Hopkins v. Amer. Car & Foundry Co., 11 S.W.2d 65; Davis v. Roth, 65 S.W.2d 172; Jaggard v. Met. St. Ry. Co., 264 Mo. 142, 174 S.W. 371.

Mark D. Eagleton, Rene J. Lusser and Arthur J. J. Bohn for respondent.

(1) The trial court properly refused to give and read to the jury appellant's Instruction E, customarily designated as a sole cause instruction, because: There was no evidence in the case to support the giving and reading of such an instruction to the jury. Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60; Causey v. Wittig, 321 Mo. 358, 11 S.W.2d 11; McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 792; Stanich v. Western Union Telegraph Co., 153 S.W.2d 54; Semar v. Kelly, 176 S.W.2d 289; Johnson v. Dawidoff, 177 S.W.2d 467; Bashkow v. McBride, 177 S.W.2d 637; Broderick v. Brennan, 170 S.W.2d 686; Hopkins v. Highland Dairy Farms, 159 S.W.2d 254; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Branson v. Abernathy, 344 Mo. 1171, 130 S.W.2d 562; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; Jurgens v. Thompson, 169 S.W.2d 353; Doherty v. St. Louis Butter Co., 98 S.W.2d 742, 339 Mo. 996; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Boyce v. Donnellan, 168 S.W.2d 120. (2) Said instruction failed to hypothesize sufficient essential facts to justify a finding of sole cause negligence against respondent. See all cases cited under Point (1). (3) The trial court properly refused to give and read to the jury appellant's Instruction F, commonly designated as an instruction in the nature of a converse humanitarian instruction, for the reasons that said instruction was not justified on any of the evidence in the case, failed to hypothesize sufficient facts to authorize a verdict for the defendant, and unduly limited the danger zone established by the humanitarian doctrine instruction, on which respondent's case was submitted. Shields v. Keller, supra, and cases cited under Point (1). (4) The trial court properly refused to permit defendant's counsel to argue to the jury that plaintiff must recover, if at all, upon his own theory that he was walking, and that if he ran in front of the streetcar and ran in front of the automobile, plaintiff could not recover -- because said argument contravened the law applicable to the case. (5) The trial court properly refused to permit defendant's counsel to argue to the jury that plaintiff was obligated to exercise ordinary care for his own safety, because said argument contravened the law applicable to the case.

Bohling, C. Westhues, C., concurs; Barrett, C. , concurs in result.

OPINION

BOHLING

Morris Chervitz prosecutes this appeal from a judgment awarding Amos W. Kimbrough $ 2,650 for personal injuries received by reason of being struck by Chervitz's automobile. The case is certified here by the St. Louis Court of Appeals (180 S.W. 2d 772, 778) and is for determination as upon ordinary appellate process (Mo. Const., Art. 6, Amend. 1884, Sec. 6). Complaint is made of the refusal of two instructions undertaking to state legal defenses to plaintiff's humanitarian case and the refusal to permit certain argument to the jury.

Plaintiff was injured in the city of St. Louis at the intersection of Grand and Easton avenues. Double streetcar tracks are on each avenue. The usual stopping point for eastbound streetcars on Easton at Grand is 35 to 40 feet west of Grand. Plaintiff alighted from an eastbound streetcar on Easton and was struck by defendant's automobile as he was proceeding north across Easton. Plaintiff intended to go south on Grand. When he alighted from the eastbound streetcar he noticed a southbound streetcar stopped north of Easton on Grand and started to take it. He testified he was proceeding at a walk and although he looked east and saw the westbound streetcar there was no automobile there when he crossed the north streetcar rail and that the automobile came at a rapid speed.

A westbound streetcar had stopped to take on passengers at the intersection on the east side of Grand. Defendant was operating his automobile west on Easton and had stopped east or back of the middle exit door of the westbound streetcar. The traffic light changed in favor of the east and west traffic and the westbound streetcar and defendant started west; defendant's automobile being then about 120 feet from the point of impact. The westbound streetcar motorman first saw plaintiff when his streetcar was not very far from plaintiff and plaintiff was in front of the eastbound streetcar. Plaintiff at that time started to run north across the track and passed over the westbound track about 5 or 6 feet in front of the westbound streetcar. Defendant testified that he was operating his automobile 4 or 5 feet north of the westbound streetcar; that he was gradually picking up speed; that when the westbound streetcar and he were about 35 feet west of Grand, his automobile was in second gear, moving about 10 miles an hour and 5 feet back of the front end of the streetcar, which would put defendant probably 10 feet back of the front of the streetcar. According to the motorman plaintiff ran north in front of and to avoid the westbound streetcar and into the path of the defendant's automobile. A streetcar passenger testified plaintiff "jumped across the streetcar track and the automobile hit him." Defendant testified he suddenly saw a man right in front of him; he immediately applied his brakes, but the man was hit. "When I first saw Kimbrough he was...