Kirkham v. Jenkins Music Co.

• Decision Date: 21 April 1937
• Docket Number: No. 34367.,34367.
• Court: Missouri Supreme Court
• Parties: ETHEL KIRKHAM, Appellant, v. JENKINS MUSIC COMPANY, a Corporation, and I.R. LOOSEN.

104 S.W.2d 234

ETHEL KIRKHAM, Appellant, v. JENKINS MUSIC COMPANY, a Corporation, and I.R. LOOSEN.

No. 34367.

Supreme Court of Missouri, Division Two.

April 21, 1937.

Appeal from Jackson Circuit Court. — Hon. Marion D. Waltner, Judge.

REVERSED AND REMANDED.

I.B. Smith and Burns & White for appellant.

The court erred in the giving of defendant's Instruction 2 for the following reasons: (a) Because the instruction erroneously places the point of peril to plaintiff as being the time defendant says she stepped in front of his automobile. Hart v. Webber, 53 S.W. (2d) 914; Roemich v. Wilson, 28 S.W. (2d) 430; Silliman v. Munger Laundry Co., 44 S.W. (2d) 159; Bongner v. Ziegenhein, 147 S.W. 185; Young v. Bacon, 183 S.W. 1081; Martin v. Fehse, 55 S.W. (2d) 441; Gray v. Columbia Term, Co., 52 S.W. (2d) 809. (b) Because this instruction erroneously assumes that the path of defendant's approaching automobile was outside of, or to the left of the safety zone. (c) Because the instruction erroneously tells the jury that the defendant had the right to assume that the plaintiff would not step out of the safety zone. Goodwin v. Eugas, 236 S.W. 52; Webber v. Evans, 15 S.W. (2d) 373; McKenna v. Lynch, 289 Mo. 16, 233 S.W. 175. (d) Because the instruction tells the jury that the defendant had no duty to sound a warning, to slow down, stop his automobile, or swerve until it became apparent to him, by the exercise of the highest degree of care, that plaintiff intended to move out from the safety zone, thereby eliminating those duties of the defendant toward the plaintiff while she was in the safety zone. (e) Because the instruction requires the jury to consider antecedent negligence in connection with and as a part of the humanitarian doctrine. Nickelson v. Cowan, 9 S.W. (2d) 534; Mott v. Railroad Co., 79 S.W. (2d) 1057; Freeman v. Berberich, 60 S.W. (2d) 393. (f) Because the instruction unduly emphasizes the charge that the plaintiff stepped in front of the approaching automobile and out of the safety zone. (g) Because the instruction conflicts with plaintiff's instructions 1 and 2. Mott v. Railroad Co., 79 S.W. (2d) 1062; Freeman v. Berberich, 60 S.W. (2d) 393; State ex rel. v. Ellison, 272 Mo. 571, 199 S.W. 988.

Cooper, Neel, Kemp & Sutherland and Frank J. Rogers for respondents.

The court did not err in giving defendant's Instruction 2. (a) Said instruction does not erroneously limit the danger zone. State ex rel. Vulgamott v. Trimble, 253 S.W. 1018; Ridge v. Jones, 71 S.W. (2d) 716; Phillips v. Henson, 30 S.W. (2d) 1067; State ex rel. Fleming v. Bland, 15 S.W. (2d) 800; Simon v. Met. St. Ry. Co., 213 S.W. 147; Kent v. Kiel, 97 S.W. (2d) 885; Doyle v. Merchants Bridge Term. Ry. Co., 31 S.W. (2d) 1013; Reith v. Tober, 8 S.W. (2d) 607; Shultz v. Smercina, 1 S.W. (2d) 113. (b) Said instruction does not erroneously assume that the path of defendants' automobile was outside of or to the left of the safety zone. Larey v. Railroad Co., 64 S.W. (2d) 684; Rudy v. Autenreith, 287 S.W. 852. (c) It was not error for the instruction to tell the jury that the defendants had the right to assume that plaintiff would not step out of the safety zone. Smith v. Wells, 31 S.W. (2d) 1014; Clark v. Railroad Co., 6 S.W. (2d) 960. (d) It was not error for said instruction to ignore the alleged acts of antecedent negligence which plaintiff abandoned and to limit defendants' duties to plaintiff to those arising after the position of peril arose. (e) Said instruction does not erroneously require the jury to consider plaintiff's antecedent negligence and even if such were true, it is proper in cases not submitted solely under the humanitarian doctrine to refer to plaintiff's antecedent or contributory negligence. Rawie v. Railroad Co., 274 S.W. 1031; Wholf v. Ry. Co., 73 S.W. (2d) 198. (f) Said instruction does not unduly emphasize the charge that the plaintiff stepped in front of the approaching automobile and out of the safety zone. (g) Said instruction does not conflict with plaintiff's Instructions 1 and 2, but merely presents the converse of such instructions. Coshon v. Otey, 222 S.W. 808; White v. Distributing Co., 47 S.W. (2d) 249.

WESTHUES, C.

Appellant, plaintiff below, filed this suit to recover $10,000 in damages, alleged to have been sustained when she was struck by a car driven by the respondent, I.R. Loosen, while he was in the employ of respondent Music Company. There was a verdict and judgment for defendants and plaintiff appealed.

The collision occurred on Walnut Street, near the south line of Twelfth Street in Kansas City, Missouri. Walnut Street is a north and south roadway, and Twelfth Street runs east and west. There was a double street car track on Walnut Street. Plaintiff's evidence disclosed that on the afternoon of July 6, 1932, she and her small nephew attempted to cross Walnut Street from east to west in the pedestrian way on the south side of Twelfth Street; that when she arrived in the safety zone, which was located east of the car tracks, the stop and go lights changed in favor of north and south traffic; that she stopped in the safety zone; that a street car traveling north stopped in front of her for the purpose of discharging passengers. Plaintiff testified she walked south in the safety zone to permit the passengers to alight and occupy the northern part of the safety zone and pedestrian way. Plaintiff stated that after the street car moved north and the passengers left she walked due north in the safety zone intending to turn west in the pedestrian way when the lights were in her favor; that she was watching the lights on the northeast corner of Twelfth and Walnut. Plaintiff further testified that as she was thus proceeding north in the safety zone she was struck by respondent's car, which was traveling north on Walnut Street; that she did not see the car approaching and that no warning was given.

Defendant Loosen testified to the following state of facts: That he was in a car traveling north on Walnut Street on an errand for the Music Company; that he saw plaintiff walking north in the safety zone; that he was traveling in the east car tracks immediately to the west of the zone; that he did not sound a warning or slacken his speed, which was about fifteen miles per hour, and when he reached a point within a few feet of plaintiff she suddenly turned and took a step to the west in the path of his car; that he immediately swerved to the west and stopped his car within a few feet, but that the fender of the car came in contact with plaintiff, knocking her to the pavement. He testified that he at no time entered the safety zone and that plaintiff gave no warning or indication that she was going to move out of the safety zone. A number of witnesses testified for the defendants.

The case was submitted to the jury on the alleged primary negligence, relating to defendant's driving through the safety zone. In another instruction the case was submitted to the jury under the humanitarian doctrine in failing to warn or swerve the car after defendants saw that the plaintiff was in a position of peril.

The only assignment of error briefed for a reversal of the judgment pertains to the giving of the following instruction on defendant's behalf:

"The court instructs the jury that the defendant, Mr. Loosen, had a right to assume that the plaintiff would not step out of the safety zone, if you find that she did, into the path of his approaching automobile, if so, and if you find that she did step out of the safety zone then there was no duty upon defendant Loosen to sound a warning or slow down or stop his automobile or swerve same until it became apparent to him, by the exercise of the highest degree of care, that plaintiff intended to move from said safety zone and into the path of his approaching automobile, if you find that she did; and the court further instructs you that if you find that plaintiff stepped out of said safety zone and into the path of defendant Loosen's approaching automobile, if so, in such close proximity to said automobile that the defendant Loosen could not, by the exercise of the highest degree of care, have avoided striking plaintiff, then your verdict will be for the defendants."

[1] In appellant's brief the instruction was assailed upon several grounds. One of these assignments, which has given us much concern, is appellant's contention that the instruction unduly limited the danger zone, in that it told the jury, as a matter of law, that the driver of the car had the right to assume that the plaintiff would not step out of the safety zone and that he owed plaintiff no duty until it became apparent to him, by the exercise of the highest degree of care, that plaintiff intended to move from said safety zone. The point of collision was about forty feet south of the pedestrian way. Plaintiff testified that she did not step out of the safety zone and did not intend doing so until she reached the pedestrian way and then only if the traffic signals were in her favor. There was no evidence introduced of any act on the part of plaintiff which would indicate that she intended to step out of the zone.

The humanitarian doctrine is not applicable unless plaintiff was in a position of peril. Now then if we assume, which we must do in discussing this particular point, that plaintiff was struck at a point outside of the safety zone, and that defendant was at all times driving his car west of the zone, when did the peril arise? If plaintiff had continued on her course due north in the zone, and defendant's car continued on its course due north, west of the safety zone, there would not have been a collision. Does it not necessarily follow then that the peril did not arise until the defendant could have discovered, by the exercise of the highest degree of care, that plaintiff intended to step out of the zone to the west? We think so, and the instruction is in harmony with this theory. Appellant has cited a...