Martin v. Fehse

• Decision Date: 20 December 1932
• Docket Number: No. 30769.,30769.
• Citation: 55 S.W.2d 440
• Parties: BELLE MARTIN v. JULIUS B. FEHSE, SR., and JULIUS B. FEHSE, JR., Appellants.
• Court: Missouri Supreme Court

55 S.W.2d 440

BELLE MARTIN v. JULIUS B. FEHSE, SR., and JULIUS B. FEHSE, JR., Appellants.

No. 30769.

Supreme Court of Missouri.

Division One, December 20, 1932.

Appeal from Circuit Court of St. Louis City. — Hon. William H. Killoren, Judge.

AFFIRMED AND REMANDED.

Wilbur C. Schwartz for appellants.

(1) The court did not err in giving Instruction 1 at the request of defendants, but did err in granting plaintiff a new trial on the ground that the court committed error by giving said instruction. Instruction 1 simply hypothesizes the facts which the evidence of the defendants tended to prove and announces the proposition that if the plaintiff herein was guilty of negligence which directly and solely caused her to be injured, and the defendant, Julius B. Fehse, Jr., the alleged agent, who was driving the automobile, was guilty of no negligence, the plaintiff was not entitled to recover. Matz v. Railroad, 217 Mo. 298. (2) Plaintiff, in her brief in support of her motion for new trial contended, and no doubt will contend here, that said instruction was one on contributory negligence and comes within the doctrine laid down in the case of Schuler v. St. Louis Can Company, 18 S.W. (2d) 42. Such a contention is not sound. But, if true, Julius B. Fehse, Jr., the alleged agent, who was actually driving the automobile at the time, did plead contributory negligence on the part of the plaintiff and said instruction is good as to him and the jury having found in favor of the defendant, Julius B. Fehse, Sr., the alleged principal, the verdict and judgment in his favor is for the right party and should be affirmed for the reason that he can only be liable by the reason of the negligence of his alleged servant and the verdict in favor of the servant necessarily acquits him. McGinnis v. Railroad, 200 Mo. 347; Lindman v. Kansas City, 308 Mo. 161; Michley v. Miss. Valley Steel Co., 221 Mo. 205. (3) Under a general denial the defendant, Julius B. Fehse, Sr., had a right to prove that the plaintiff was injured by her sole negligence. Ramp v. Met. Street Ry., 133 Mo. App. 700.

Douglas H. Jones for respondent.

(1) There was no adequate evidence to support the verdict. (2) The ruling of the trial court granting a new trial should be sustained if possible on any theory whatsoever. Grubbs v. K.C. Pub. Ser. Co., 45 S.W. (2d) 71; Tappemeyer v. Ryckoff, 45 S.W. (2d) 890; Smith v. K.C. Pub. Ser. Co., 43 S.W. (2d) 548; Yuronis v. Wells, 322 Mo. 1039, 17 S.W. (2d) 518; Riche v. St Joseph, 32 S.W. (2d) 578, 326 Mo. 691; Manthey v. Kellerman, 311 Mo. 147, 277 S.W. 927; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Dictrich v. Cape Brewery Co., 315 Mo. 507, 286 S.W. 38; King v. Mann, 315 Mo. 318, 286 S.W. 100; Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W. (2d) 886; Bankers' Mortgage Co. v. Osborn, 24 S.W. (2d) 215; Joy v. Bixby, 10 S.W. (2d) 342; Thayer v. Halterman, 10 S.W. (2d) 663; Crocker v. MacCartney, 24 S.W. (2d) 649. (3) Defendants' given Instruction 1 is erroneous in three particulars, in that (a) It fails to take into consideration the danger zone under the humanitarian doctrine; and (b) It improperly instructs that if plaintiff's negligence was the sole cause of the collision she cannot recover; and (c) That it assumes controverted facts. (a) Defendant's Instruction I is erroneous in that it ignores the danger zone under the humanitarian doctrine. Linders v. People's Motorbus Co., 326 Mo. 695, 32 S.W. (2d) 580; Shumate v. Wells, 9 S.W. (2d) 633; Causey v. Wittig, 11 S.W. (2d) 11; Jaegeles v. Berberich, 20 S.W. (2d) 577; Thompson v. Quincy, O. & K.C. Railroad Co., 18 S.W. (2d) 401; Schroeder v. Wells, 310 Mo. 642, 276 S.W. 60; State v. Trimble, 260 S.W. 1000; Maginnis v. Railroad Co., 268 Mo. 677, 187 S.W. 1165; Eckland v. Transit Co., 190 Mo. 593. (b) Defendant's Instruction 1 is erroneous in instructing that plaintiff cannot recover if her negligence was the sole cause of the collision. Shumate v. Wells, 9 S.W. (2d) 633; Schuetter v. Enterprise, 34 S.W. (2d) 976; Wright v. Quattrochi, 49 S.W. (2d) 3. (c) Defendants' Instruction 1 is likewise erroneous in assuming controverted question of fact. Mahaney v. K.C.C.C. & St. J., 46 S.W. (2d) 817; Causey v. Wittig, 11 S.W. (2d) 11, 321 Mo. 358. (4) Defendants' Instruction 3 is erroneous in that: (a) As to burden of proof it ignores the shifting to defendants of the burden of evidence as to contributory negligence. Tappemeyer v. Ryckoff, 45 S.W. (2d) 890. (b) Defendants' instruction gives the jury a roving commission to ascertain the facts necessary to a verdict in plaintiff's favor. Priestly v. Laederich, 2 S.W. (2d) 631; Jennings v. Cooper, 230 S.W. 325; Schide v. Gottschick, 43 S.W. (2d) 777; Lally v. Morris, 26 S.W. (2d) 52; Macklin v. Fogel, 326 Mo. 38, 31 S.W. (2d) 14; McCaslin v. Mullins, 17 S.W. (2d) 684. (c) Defendants' Instruction 3 is erroneous in instructing the jury that the burden of proof is on plaintiff to establish the facts necessary to a verdict "Under these instructions;" thereby telling the jury that plaintiff could not recover because there were no instructions in her favor." Rose v. Telegraph Co., 43 S.W. (2d) 562; Hopkins v. Am. Car & Foundry Co., 11 S.W. (2d) 65; Miller v. Callahan, 46 S.W. 948; Barber v. Am. Car & Foundry Co., 14 S.W. (2d) 478; Sullivan v. Frisco, 321 Mo. 697, 12 S.W. (2d) 735; Primmer v. Am. Car & Foundry Co., 299 S.W. 825; Schroeder v. Wells, 310 Mo. 62, 276 S.W. 60; Roemer v. Wells, 257 S.W. 1057; Ternetz v. St. Louis Lime & Cement Co., 252 S.W. 70; Armstrong v. Scullin Steel Co., 268 S.W. 386; English v. Sahlender, 47 S.W. (2d) 150.

FERGUSON, C.

An automobile owned by defendant J.B. Fehse, Sr., and being driven by his son, defendant, J.B. Fehse, Jr., struck and injured plaintiff, a pedestrian, a she was crossing Hickory Street in the city of St. Louis. Plaintiff brought this action for damages in the amount of $20,000. The case was tried in the Circuit Court of the City of St. Louis, and the verdict of the jury being for defendants, judgment was entered accordingly. Plaintiff's motion for a new trial was sustained and from the order of the trial court granting a new trial defendants bring this appeal.

The petition charges negligence under the humanitarian doctrine with other grounds of negligence also assigned. The defendants answered separately, the answer of the defendant, Fehse, Sr., being a general denial and that of defendant, Fehse, Jr., a general denial with a plea of contributory negligence. Defendants did not ask that any of the several assignments of negligence made in the petition be withdrawn. No instructions were offered or given on behalf of the plaintiff, but the court gave three instructions offered by defendants. Plaintiff's motion for a new trial was sustained on the ground that the "court erred in giving Instruction No. 1 offered in behalf of defendants," which instruction is as follows:

"The court instructs the jury that if you find and believe from the evidence that the plaintiff walked or stepped out into Hickory Street between two parked automobiles that were parked on the south curbing of Hickory Street at the place mentioned in the evidence, and that she was negligent in so doing, if you so find, and if you further find that she negligently and carelessly permitted herself, after walking and stepping out between two parked automobiles, to step directly into the path of the automobile driven by Julius Fehse, Jr., and so close thereto that the defendant Julius Fehse, Jr., thereafter, could not by the exercise of the highest degree of care have stopped his said automobile or swerved the same, thus and thereby avoiding the collision mentioned in the evidence, and that this negligence of the plaintiff in so stepping out between two parked automobiles, if you so find she was negligent in so doing, was the direct and sole cause of the collision mentioned in the evidence and the plaintiff's injuries, if any, and that defendant Julius Fehse, Jr., was free from any negligence, then your verdict must be for the defendant."

Defendants (appellants) do not here question that a submissible case was made under the humanitarian doctrine. The sufficiency of the evidence is not involved and for the purposes of this opinion the following statement of the evidence will, we think suffice. Hickory Street is an cast and west paved street in the city of St. Louis. Plaintiff, an elderly lady, resided with her daughter at 936 Hickory Street, on the south side of that street and about midway of the block between Ninth Street, a north and south cross street, on the east, and Tenth Street, a north and south cross street, on the west. The automobile which struck plaintiff was a Ford roadster owned by Fehse. Sr., but at the time being driven by his son Fehse, Jr., who was accompanied by a young lady. They were the only persons riding in the car. There was testimony that Fehse, Jr., was at the time driving the car with his father's consent and engaged upon an errand for his father. Plaintiff was struck and injured about eight P.M., Sunday night January 2, 1927, as she was crossing Hickory Street on her way to a church situate on the north side of that street approximately opposite her residence, which was on the south side. We find evidence in the record tending to show that plaintiff paused at the south curb line at a point in front of her residence and looked first to the west to Tenth Street then east to Ninth Street and again to the west and as no traffic of any kind was moving either east or west she stepped into Hickory Street and walked directly toward the north side of the street; that she was facing north and intent upon her course across the street and did not again glance to either the cast or west; that she had thus proceeded some three or four steps into the street, or eight to twelve feet north from the south curb, when the Fehse automobile came from the west so fast that when she first saw it the car was so close upon her ...