Mahl v. Terrell

• Decision Date: 17 December 1937
• Docket Number: 34623
• Citation: Mahl v. Terrell, 111 S.W.2d 160, 342 Mo. 15 (Mo. 1937)
• Parties: Hedwig Mahl v. J. F. Terrell, W. L. Terrell and Henry W. Kiel, Trustee for St. Louis Public Service Company, Defendants, Henry W. Kiel, Trustee for St. Louis Public Service Company, Appellant
• Court: Missouri Supreme Court

111 S.W.2d 160

342 Mo. 15

Hedwig Mahl v. J. F. Terrell, W. L. Terrell and Henry W. Kiel, Trustee for St. Louis Public Service Company, Defendants, Henry W. Kiel, Trustee for St. Louis Public Service Company, Appellant

No. 34623

Supreme Court of Missouri

December 17, 1937

Appeal from Circuit Court of City of St. Louis; Hon. John A Witthaus, Judge;

Reversed.

T E. Francis, B. G. Carpenter and Wm. H. Allen for appellant.

A situation of "imminent peril" is the basic fact with which the humanitarian doctrine deals. No duty arises under that doctrine until a situation of imminent peril has come into existence; and no recovery may be had thereunder unless there is substantial evidence tending to show that after the peril arose the defendant knew of such peril, or was chargeable with knowledge thereof, and could thereafter have averted the threatened injury by the exercise of due care with the means at his command. Elkin v. St. L. Pub Serv. Co., 335 Mo. 951; Ziegelmeier v. E. St. Louis & Sub. Ry. Co., 330 Mo. 1018; State ex rel. Fleming v. Bland, 322 Mo. 572; State ex rel. Vulgamott v. Trimble, 300 Mo. 109; Ridge v. Jones, 335 Mo. 219; Lamoreux v. Ry. Co., 87 S.W.2d 640; Banks v. Morris & Co., 302 Mo. 267; Under the evidence adduced, the service car and its occupants were obviously not in a position of imminent peril until the street car was so far across the highway, in front of the oncoming service car, as to make it impossible for the motorman to do aught to prevent the collision. The term "imminent peril," within the contemplation of the humanitarian rule, does not mean remote, uncertain or contingent peril, but peril "immediately impending." Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951; Ridge v. Jones, 335 Mo. 219; Ziegelmeier v. E. St. Louis & Sub. Ry. Co., 330 Mo. 1018; State ex rel. Vulgamott v. Trimble, 300 Mo. 109; Stewart v. Mo. Pac. Ry. Co., 308 Mo. 383; Banks v. Morris & Co., 302 Mo. 267. The mere fact that one is in a position such as to make it possible that he may be injured by reason of succeeding events does not by any means mean that he is in a position of "imminent peril" -- peril "immediately impending." State ex rel. Vulgamott v. Trimble, 300 Mo. 92; Wallace v. Ry. Co., 336 Mo. 289. Testimony that is contrary to undisputed physical facts, or to physical laws, or inherently impossible, is wholly without probative value and will be rejected in determining whether a prima facie case was made. Alexander v. St. L.-S. F. Ry. Co., 327 Mo. 1020; Ziegelmeier v. E. St. Louis & Sub. Ry. Co., 330 Mo. 1019; Sexton v. Met. St. Ry. Co., 245 Mo. 273; Hook v. Mo. Pac. Ry. Co., 162 Mo. 581; Roseman v. United Rys. Co., 251 S.W. 106. The motorman of a street car is not required to anticipate that the driver of an automobile will deliberately drive it into the side of his car while the latter, in plain view, is slowly proceeding across a broad highway and after having proceeded so far across as to bring the rear thereof near the center of the highway. Ziegelmeier v. E. St. Louis & Sub. Ry. Co., 330 Mo. 1017.

E. McD. Stevens, John J. Nangle, George Gantner and Harry S. Rooks for respondent.

The court properly refused to direct peremptorily a verdict for defendant Kiel since the evidence presented a submissible case for the jury on pleaded specifications of negligence, to-wit: The evidence presented a submissible case for the jury on the pleaded negligence that the motorman of the street car saw or, by exercise of ordinary care, would have seen the service car with plaintiff therein in imminent peril of collision, in time for the motorman thereafter, by ordinary care, to have averted the collision, but negligently failed to do so. Ziegelmeier v. Ry. Co., 330 Mo. 1013; Flynn v. St. L. Pub. Serv. Co., 41 S.W.2d 888; Homan v. Mo. Pac. Ry., 334 Mo. 61, Id., 335 Mo. 30; McCombs v. Fellis, 337 Mo. 491; Womack v. Mo. Pac. Ry., 337 Mo. 1160; Kloeckener v. St. L. Pub. Serv. Co., 331 Mo. 396; Lyons v. Met. St. Ry., 253 Mo. 143; Vandenberg v. Snider, 83 S.W.2d 201; Burow v. St. L. Pub. Serv. Co., 79 S.W.2d 478; Montague v. Mo. & Kan. Int. Ry., 305 Mo. 282. The evidence was sufficient for the jury to find that, at a time when the motorman could, by ordinary care and with reasonable safety, have stopped the street car in ample time to prevent it intercepting the service car, the motorman could by ordinary care have seen the service car with plaintiff therein approaching at a speed and distance under conditions such that it could not or would not stop in time to prevent a collision if intercepted, which constituted "imminent peril" as defined by this court, and presented a submissible humanitarian doctrine case. Testimony as to facts seen by direct observation is not destroyed in probative value by testimony of the same witness as to opinion estimates of speed and distance merely because inconsistent. Christner v. Ry. Co., 228 Mo.App. 225; Haddow v. St. L. Pub. Serv. Co., 38 S.W.2d 287; Tunget v. Cook, 94 S.W.2d 925. The evidence was sufficient for the jury to find that the motorman could have seen that a collision and injury was certain so long as he allowed the street car to proceed across the highway, and at a time when he easily could have stopped. However, even if he could not then see that the injury was certain to occur because it appeared to him that there was a mere possibility that the service car might stop, that construction of the evidence is still sufficient because to constitute "imminent peril" under the humanitarian doctrine, it is not necessary that "injury" be certain, it is sufficient if the "peril" be certain and immediately impending. Wallace v. St. J. Ry., L., H. P. Co., 336 Mo. 289; Ridge v. Jones, 335 Mo. 225.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This is an action to recover damages for personal injuries alleged to have been sustained as the result of a collision between a service car and a street car, at the intersection of Manchester Road and the street car tracks immediately west of Dorthy Street, in St. Louis County, Missouri. Plaintiff obtained a judgment in the sum of $ 25,000 against all of the defendants. They were: J. F Terrell, W. L. Terrell, and Henry W. Kiel, trustee for the St. Louis Public Service Company. Kiel, as trustee for the Public Service Company, owner of the street railway system, appealed.

The case was submitted to the jury under the humanitarian doctrine. The undisputed facts, as we gather them from the evidence, are: The collision occurred on July 11, 1934, at about six-thirty P. M. Manchester Road, at the point in question, is a four lane concrete highway, forty feet wide, running in an easterly and westerly direction. A double street car track crosses the highway in a north and south direction, somewhat northeasterly and southwesterly. About two hundred feet east of the intersection, on Manchester Road, is a sign "Railroad Crossing." To the south of the intersection and to the east of the tracks is a "stop" sign for street cars, and also a platform for passengers intending to board or leave the street cars. The service car that figured in the collision was a large Packard sedan, carrying seven passengers at the time of the collision. The service car was traveling west in the lane immediately north of the center line of Manchester Road and the street car was traveling north on the east track. The service car struck the street car near the rear end, derailing it. The service car swerved to the left just before the collision and the rear end of the car skidded into and struck the street car. The glass in a number of the windows of the street car was shattered. Two of the passengers in the service car were killed and a number of the others were seriously injured.

Plaintiff's witnesses testified that the street car stopped south of the highway, then moved slowly across it, beginning at a speed of about two miles per hour and gradually increasing to about six or seven miles per hour at the time of the collision. Plaintiff's witnesses testified that the service car was traveling at about twenty-five or thirty miles per hour; that a light rain had fallen just before the collision; that there was a slight incline toward the tracks on Manchester Road. Plaintiff testified that when the service car reached a point about thirty feet from the car tracks she felt the application of the brakes, then a swerve to the left. She testified the road was clear ahead of her at the time the brakes were applied; that she fainted before the collision and remained unconscious for some time after the collision. She was seriously injured. A police officer testified that there were marks on the concrete to the north of the center of the road, where the rear wheels of the street car had left the tracks. Another witness, who was a passenger in the service car, testified that the service car was traveling about thirty miles per hour; that when it reached a point about sixty or seventy feet from the tracks he felt the application of the brakes; that the street car was standing still, at that time, south of the highway; that when the service car was about thirty feet from the tracks it began to swerve to the left and the rear end skidded around and struck the street car. Another witness, also a passenger on the service car, testified that the street car was standing still south of the highway when the service car was about eighty-five feet from the crossing; that the street car started across the highway at a speed of two or three miles per hour and had increased its speed to about seven or eight miles per hour at the time of the collision; that when the service car was about sixty feet from the track it was going twenty or twenty-five miles per hour; that prior to the application of the brakes it...