Lottie Banks v. Morris & Company

• Citation: 257 S.W. 482,302 Mo. 254
• Decision Date: 04 January 1924
• Docket Number: 22714
• Parties: LOTTIE BANKS v. MORRIS & COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

257 S.W. 482

302 Mo. 254

LOTTIE BANKS v. MORRIS & COMPANY, Appellant

No. 22714

Supreme Court of Missouri

January 4, 1924

Appeal from St. Louis City Circuit Court; Hon. J. Hugo Grimm, Judge.

Affirmed (upon condition).

Leahy Saunders & Walther for appellant.

(1) "In order to make the defendant liable, notwithstanding contributory negligence of plaintiff, the defendant must not only be aware of the danger in time to avert it, but must also know, or have reason to believe, that the plaintiff is oblivious of the danger and is in a position where he cannot extricate himself from it." This is the rule in Missouri. Degonia v. Railroad, 224 Mo. 564, 575 586; Quigley v. Traction Co., 180 Mo.App. 287, 308; Waddell v. Railroad, 213 Mo. 8, 16; Dutcher v Railroad, 241 Mo. 137, 165. It is also the rule in nearly all of the other states. Wallis v. So. Pac. Railroad Co., 195 P. 480; Arnold v. Railroad, 175 Cal. 1; 20 R. C. L. sec. 117, p. 143; Herrick v. Water Power Co., 75 Wash. 149, 156. (2) The facts to support the doctrine of last chance must be pleaded. Quigley v. Traction Co., 180 Mo.App. 308; Degonia v. Railroad, 224 Mo. 586, 595; 8 Thompson on Negligence, sec. 7466; Sutherland on Code Pleading Practice, sec. 4177; Cummings v. Railroad Co., 26 Mont. 434; Kennon v. Gilmer, 4 Mont. 433; Beach on Contributory Negligence, sec. 32, p. 41, note. (3) The element of obliviousness is essential to the establishment of a case under the clear last-chance doctrine, in the circumstances pleaded in the case at bar, and pleading obliviousness is not the negativing of contributory negligence on the part of the plaintiff, but the statement of one of the facts out of which the negligence of the defendant arises. Without such an allegation the petition does not show that there was any duty upon the defendant which the defendant omitted to perform. Stated in another way, the petition without this essential allegation shows that the proximate cause of the injury was the negligence of the plaintiff instead of the defendant. Sutherland on Code Pleading Practice, secs. 4173, 4177; Beach on Contributory Negligence, secs. 32, 35, and note, p. 41. (4) It is the antecedent negligence of the plaintiff upon which the humanitarian rule is predicated. Clark v. St. Joseph Terminal Railroad Co., 242 Mo. 520, 609. But, when circumstances are present which give rise to a duty upon the defendant to avoid injuring the plaintiff, notwithstanding the latter's own negligence, there can be no such thing as contributory negligence as against the defendant's duty arising out of the situation in which the plaintiff's own negligence has placed him. So the courts say that "contributory negligence is not a defense to a cause founded on the last-chance rule." Borders v. Street Railway, 168 Mo.App. 172, 176; Grout v. Central Railroad Co., 125 Mo.App. 552; Bonsall v. Railroad, 152 Iowa 579; Smith v. Herbel, 157 Mo.App. 177. (5) The result in the case of Karte v. Brockman Manufacturing Company, 247 S.W. 417, is not dependent upon the remarks of the court regarding the necessity for pleading that the plaintiff's deceased husband was oblivious to the approaching danger. The decision can rest solely upon the other ground advanced in the opinion that obliviousness was admitted as a fact in the trial court and the case tried below upon the theory that it was not an issue. It was upon this latter ground that the decision of this court rested in Simpson v. Wells, 237 S.W. 520.

Edward W. Foristel and O. J. Mudd for respondent.

(1) The petition contains allegations of all the necessary constitutive facts of a cause of action on negligence, the "imminent danger" of the plaintiff, its discovery to the truck driver, his ability thereafter to stop and failure to do so, and proximate result of that failure in injury to the plaintiff. Secs. 1220, 1239, R. S. 1919; Phillips v. Railway Co., 226 S.W. 863; State ex rel. Vulgamott v. Trimble, 253 S.W. 1014; St. Louis & S.W. Ry. Co. v. Canbron, 188 S.W. 1130. (2) "A position of imminent danger" on the part of the plaintiff, when actually or constructively known to defendant, immediately casts upon the defendant the duty then to exercise ordinary care (proportional to the calls of that danger) to avoid injury to plaintiff; and a petition stating those facts, although alleging the "imminent danger" of plaintiff in those words only and without any direct allegation of obliviousness or consciousness and inability to extricate, is a sufficient statement of facts invoking the humanitarian doctrine as a bar to the defense of contributory negligence, and it has been consistently and uniformly so recognized, declared and applied by this court as the law of this State from its very first decision applying the doctrine. Isabel v. Railroad 60 Mo 482; Harlan v. Railroad, 64 Mo. 483; Maher v. Railroad, 64 Mo. 267, 276; Zimmerman v. Railroad, 71 Mo. 476; Werner v. Railroad, 81 Mo. 374; Scoville v. Railroad, 81 Mo. 434; Donahoe v. Railway Co., 83 Mo. 545, 551; Bergman v. Railway Co., 88 Mo. 683; Rine v. Railroad, 88 Mo. 399; Guenther v. Railroad, 95 Mo. 286; Kellny v. Railroad, 101 Mo. 67; Hanlon v. Railroad, 104 Mo. 381; Guenther v. Railroad, 108 Mo. 18; Schlereth v. Railway Co., 115 Mo. 101; Moore v. Railroad, 126 Mo. 265; Lloyd v. Railroad, 128 Mo. 595; Schlereth v. Railroad, 128 Mo. 595; Chamberlain v. Railway Co., 133 Mo. 587; Morgan v. Wabash Railway Co., 159 Mo. 262; Klockenbrinck v. Railway Co., 172 Mo. 678; Riska v. Railroad, 180 Mo. 168; Holmes v. Mo. Pac. Ry. Co., 207 Mo. 149; Lange v. Railway Co., 208 Mo. 458, 477; Powell v. Railways Co., 226 S.W. 916; Murphy v. Railroad, 228 Mo. 56. (3) Even if either obliviousness to her peril or inability to avoid it is essential to a recovery by the plaintiff, but neither is expressly alleged in the petition; yet, if the allegation that plaintiff was in a position of imminent danger, by inference or intendment, implies the one or the other of these conditions as a cause or concomitant of the "imminent peril," then the allegation is sufficient against attack made for the first time after verdict and judgment, and the omission of a direct or express allegation of obliviousness is not fatal. Shaber v. Van Wormer, 33 Mo. 386; Bank v. Scalzo, 127 Mo. 188; Robinson v. Levy, 217 Mo. 498, 517. (4) But plaintiff in her petition confined her allegations to a statement of facts and circumstances showing defendant's negligence and her injury as a proximate result thereof; and so she had no concern there with a charge of contributory negligence on her part (which could come into the case only on a plea of it in an answer), nor with any of its vital incidents, and was not called upon or required to plead it so as to avoid it or to anticipate it. Hall v. Coal & Coke Co., 260 Mo. 351, 367. (5) If obliviousness is considered as a shield against the operation of the relevant doctrine of the Kinlen Case, that one who consciously or voluntarily enters into danger cannot recover for the results of his act in doing so, it enters the case only as an avoidance of the defense of contributory negligence. But if considered as a cause or source of the danger, or as a means of its discovery, then, again, it is not necessary to allege it in the petition, or not reversible error to omit it from the petition, because the "imminent danger" alleged is the ultimate, the constitutive "foundation" fact of the humanitarian doctrine, and it is not required that plaintiff plead the conditions which gave rise to that imminent danger. See v. Cox, 16 Mo. 166; Railroad Co. v. Kenney, 41 Mo. 273; Alcorn v. Railroad, 108 Mo. 81; Gates v. Watson, 54 Mo. 590; Midway Trust Co. v. Davis, 288 Mo. 574. (6) If the petition contains allegations sufficient for a cause of action on negligencetort, the defendant by its answer traversed the allegations of the petition, without any challenge to its legal sufficiency as a statement of a cause of action; and then, if, at the trial, defendant thought that plaintiff was making a case on her proofs as on a different character of negligence than that stated in her petition, the defendant was bound then and there to proceed as for a variance between the pleadings and the proofs, as required by the statute. Failing to do so, defendant has waived its right to be heard here on such complaint. R. S. 1919, sec. 1272; Fischer v. Max, 49 Mo. 404; Wells v. Sharp, 57 Mo. 56; Shelton v. Durham, 76 Mo. 434, 437; Harrison v. Lakenan, 189 Mo. 599; Von Treba v. Gas Light Co., 209 Mo. 648, 660; Railroad v. Railroad, 222 Mo. 461, 486. (7) This court has never held that the absence of "obliviousness to the danger" in all cases necessarily defeats a recovery. (8) So far as the obliviousness of the plaintiff relates to the discovery of the peril, it is clearly matter of evidence, and efficiently predicated by the allegation of actual or constructive knowledge on the part of the truck driver. But, in any event, the need of an allegation of it is dispensed with here, because the truck driver was not affected by the state of mind, either of obliviousness or consciousness on the part of the plaintiff. He did not rely on her consciousness of her peril, or claim to have been in any manner affected by it. For this reason it became an immaterial element, and failure to submit it was, on the evidence, harmless. Bybee v. Dunham, 198 S.W. 193; Newton v. Harvey, 202 S.W. 251; Dunn v. Kansas City, 204 S.W. 594; Heryford v. Spitcaufsky, 200 S.W. 125; Lilly v. Railway Co., 209 S. W., 971. (9) The true meaning and legal significance of the socalled humanitarian or last chance doctrine is that it is an exception to or avoidance of the application and bar of the doctrine of contributory negligence as a defense to a negligence-tort action. Hanlon v. Railway Co., 104 Mo. 389; Morgan v....