Kloeckener v. St. Louis Pub. Serv. Co., No. 30395.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Hyde
• Citation: 53 S.W.2d 1043
• Parties: WILLIAM A. KLOECKENER v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
• Docket Number: No. 30395.
• Decision Date: 22 October 1932

53 S.W.2d 1043 WILLIAM A. KLOECKENER
v.
ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant. No. 30395. Supreme Court of Missouri, Division One. October 22, 1932.^*

Appeal from Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.

AFFIRMED.

T.E. Francis, B.G. Carpenter and Allen, Moser & Marsalek for appellant.

(1) The evidence shows, without dispute, that after plaintiff stopped his automobile, at a point about thirty-five or forty-five feet south of defendant's track, he drove it northwardly to the point of the collision without looking for cars which might be approaching thereon. Plaintiff testified that he looked both ways at the time he stopped, but saw no car at that time, and then looked straight ahead as he went toward and onto the track. His failure to make any effort, as he approached the track, to discover whether a car was approaching, convicts him of contributory negligence, as a matter of law. State ex rel. Maclay v. Cox, 320 Mo. 1218; Evans v. Railroad Co., 289 Mo. 493; Sanguinette v. Railroad, 196 Mo. 466; Markowitz v. Met. St. Ry. Co., 186 Mo. 350; Smith v. Wells, 31 S.W. (2d) 1024; Gersman v. A.T. & S.F. Ry. Co., 229 S.W. 167; Gubernick v. United Rys. Co., 217 S.W. 35; Zlotnikoff v. Wells, 220 Mo. App. 869; Paul v. United Rys. Co., 152 Mo. App. 577, opinion adopted 160 Mo. App. 599; Bendick v. Wells, 253 S.W. 394; Underwood v. West, 187 S.W. 84. Plaintiff's own testimony conclusively shows that it was a physical impossibility for him to have failed to see the approaching car by looking either when at the south line of Pershing Avenue, or at any time thereafter before going into the danger zone. He had a clear view to the west for a block or more; and to look was to see. Under the circumstances his failure to exercise any care to ascertain whether a car was approaching from the west, while he was yet at a place of safety, and before entering the danger zone, convicts him of negligence as a matter of law. Monroe v. Railroad, 297 Mo. 633; Boring v. Met. St. Ry. Co., 194 Mo. 541; Kelsay v. Railway Co., 129 Mo. 372; Evans v. Ill. Cent. Ry. Co., 233 S.W. 399; Hale v. St. Joseph Ry. Co., 287 Mo. 518; Laun v. Railroad, 216 Mo. 578; Reno v. Railroad, 180 Mo. 469. (2) The plaintiff wholly failed to show any right of recovery under the humanitarian theory. In order to justify submission of the case on this theory, it was incumbent upon plaintiff to prove that defendant's servant in charge of the street car, by the exercise of ordinary care, could have averted the collision after the plaintiff entered a position of peril. The evidence wholly fails to show where the car was when plaintiff entered into such position. Banks v. Morris & Co., 302 Mo. 266; Lackey v. United Rys. Co., 288 Mo. 120; Paul v. United Rys. Co., 152 Mo. App. 583; Wilkerson v. Railway Co., 140 Mo. App. 316; Zurfluh v. Peoples Ry. Co., 46 Mo. App. 642; Bibb v. Grady, 231 S.W. 1022; Riggs v. Kansas City Rys. Co., 220 S.W. 697. (3) The evidence shows without dispute that as plaintiff approached the track from a point thirty-five or forty-five feet therefrom, he was operating his automobile slowly, at the rate of about five miles per hour; that he could stop it within a few feet. Under such circumstances the motorman had the right to assume that plaintiff would exercise ordinary care for his own safety, and would stop before going on the track in front of the approaching car. Markowitz v. Met. St. Ry. Co., supra; Schmidt v. Railroad, 191 Mo. 233; Guyer v. Railroad, 174 Mo. 350; Beal v. Railway Co., 256 S.W. 735. (4) The plaintiff did not enter a position of imminent peril, within the purview of the humanitarian rule, until his automobile was very close to the track. McGowan v. Wells, 24 S.W. (2d) 633; Petty v. Railway Co., 179 Mo. 666; Guyer v. Railroad, 174 Mo. 351. (5) To entitle him to recover the burden was upon plaintiff to prove his case by substantial evidence. There is no substantial evidence in the record tending to show liability on defendant's part, under the humanitarian rule, but, on the contrary, plaintiff's alleged right of recovery under said rule is based upon speculation and conjecture, and is clearly insufficient to entitle him to recover. Williams v. Van Blarcom, 258 Mo. 418; Miller v. Wilson, 288 S.W. 997.

Freeland L. Jackson for respondent.

(1) In ruling on demurrer to evidence, appellate court must consider all testimony and evidence in light most favorable to plaintiff, and give him every favorable inference of fact which evidence warranted and all countervailing inferences must be rejected. Morton v. St. Louis-S.F. Ry. Co., 20 S.W. (2d) 34; Stewart v. Sheidley, 16 S.W. (2d) 607; Stewart v. Laclede Gas Light Co., 241 S.W. 909. And where witness' answer to material question was ambiguous, court on demurrer to evidence cannot draw inference most favorable to defendant. Ceck v. Mallinckrodt Chemical Co., 20 S.W. (2d) 509; Stewart v. Laclede Gas Light Co., 241 S.W. 909. Demurrer to evidence admits as true every fact and circumstance which evidence adduced by plaintiff tends to prove, and plaintiff is entitled to benefit of every inference of fact which may reasonably be drawn therefrom. Morton v. St. Louis-S.F. Ry. Co., 20 S.W. (2d) 34; Nickelson v. Cowan, 9 S.W. (2d) 534; Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S.W. 14. Plaintiff having stopped his automobile a few feet (thirty feet) from the track on which he was struck, from which point he looked west and could see a distance of better than 300 feet, and saw that there was no car within that distance; that the track was clear, was not guilty of contributory negligence as a matter of law, even if he proceeded across the track without again looking to west. Maloney v. United Rys. Co., 183 Mo. App. 292, 167 S.W. 471; Wack v. Railway, 157 S.W. 1070; Ziegeler v. United Rys. Co., 220 S.W. 1018; Hoodenpyle v. United Rys. Co., 236 S.W. 913; Hall v. St. L. & S. Ry. Co., 124 Mo. App: 661, 101 S.W. 1137. (a) Where plaintiff, when thirty fect from defendant's track, looked and could see a distance of more than 300 feet and saw that the track was clear throughout all that distance, and if he would have had time to travel across the track before a car traveling at a usual rate of speed could reach the crossing, he is not guilty of contributory negligence as a matter of law in not again looking. Maloney v. United Railways Co., 183 Mo. App. 292, 167 S.W. 472; Strauchon v. Met. St. Ry., 232 Mo. 587, 135 S.W. 14. Where plaintiff offers proof of both ordinary negligence and negligence under humanitarian theory and defendant demurs to evidence on ground of plaintiff's contributory negligence, such demurrer being general, is properly overruled, as contributory negligence is no defense under humanitarian theory. Williams v. Fleming, 267 S.W. 6; Schroeder v. Wells, 276 S.W. 60; Bode v. Wells, 15 S.W. (2d) 336. (b) A plaintiff enters the danger zone at the moment he approaches so near the point of collision and under such conditions that it was or should have been apparent to the motorman that he would not or could not stop his automobile before going upon the track. Larkin v. Wells, 278 S.W. 1088; State ex rel. Railway Co. v. Trimble, 260 S.W. 1000; Logan v. Railroad Co., 254 S.W. 705; Ellis v. Railroad Co., 138 S.W. 23. (c) Where conduct of person driving toward track would lead prudent motorman to conclude he was going on the track in front of the car, motorman's right to act on presumption that person will stop before going on track, ceases. Ellis v. Met. St. Ry. Co., 138 S.W. 24; Eckhard v. St. Louis Transit Co., 89 S.W. 610; Logan v. Railroad Co., 254 S.W. 711. (d) Plaintiff entered the danger zone and into a position of imminent peril from the time be left the south curb of Pershing and drove steadily toward the track with his mind preoccupied and his attention directed elsewhere than to the oncoming car. Ellis v. Met. St. Ry. Co., 138 S.W. 30; Larkin v. Wells, 278 S.W. 1088; Logan v. Railroad Co., 254 S.W. 711. (2) Where a car was stopped in 100 to 150 feet after a collision defendant was not prejudiced by testimony of expert that a car could have been stopped within 100 to 200 feet, and evidence as to character of equipment and expert testimony is functus officio. Ellis v. Met. St. Ry., 138 S.W. 32; Huckshold v. Ry. Co., 234 S.W. 1074; Beier v. Transit Co., 197 Mo. 231, 94 S.W. 876; Latson v. Transit Co., 192 Mo. 466, 91 S.W. 109; Kinlen v. Met. St. Ry., 216 Mo. 145, 115 S.W. 523. This instruction was not erroneous, nor misleading in that it referred to defendant's "car men in charge of defendant's car," and it could not be said to impose a duty upon any servant of defendant, except the one in charge...