McCombs v. Ellsberry

• Decision Date: 11 July 1935
• Parties: Marie McCombs v. Oliver Ellsberry, Also Known as Ollie Ellsberry, and Walter Fellis, Defendants, Walter Fellis, Appellant
• Court: Missouri Supreme Court

85 S.W.2d 135

337 Mo. 491

Marie McCombs v. Oliver Ellsberry, Also Known as Ollie Ellsberry, and Walter Fellis, Defendants, Walter Fellis, Appellant

Supreme Court of Missouri

July 11, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Charles W Rutledge, Judge.

Reversed and remanded.

John T Sluggett, Jr., for appellant.

(1) Legal conclusions pleaded tender no issue and are subject to collateral attack without motion. Kramer v. K. C Co., 311 Mo. 383, 279 S.W. 46. Under the humanitarian rule plaintiff, to recover, must show: (a) Plaintiff was in a position of peril. (b) Defendant had notice thereof (if it were the duty of defendant to have been on lookout, constructive notice suffices). (c) Defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others. (d) He failed to exercise the highest degree of care to avert such impending injury; and (e) By reason thereof plaintiff was injured. Banks v. Morris & Co., 302 Mo. 267, 257 S.W. 484; Ziegelmeier v. Ry. Co., 51 S.W.2d 1029; Wilson v. Wells, 13 S.W.2d 541. The evidence in this case wholly failed to show that plaintiff was in a position of peril at any time prior to the collision. Ziegelmeier v. Ry. Co., 51 S.W.2d 1029. "Peril" as used in the humanitarian doctrine means an imminent impending or certain peril and goes beyond the bare possibility of an injury occurring. State ex rel. v. Trimble, 300 Mo. 92, 253 S.W. 1014; Stewart v. Mo. Pac., 308 Mo. 383, 272 S.W. 694. That injured person's position was such that he might possibly be injured if another person should commit a negligent act is insufficient to make out a case under the humanitarian doctrine. Ridge v. Jones, 71 S.W.2d 713. Plaintiff was not entitled to go to the jury under the humanitarian doctrine in the absence of evidence showing the distance between the two automobiles when plaintiff entered the danger zone. McGowan v. Wells, 324 Mo. 652; State ex rel. v. Reynolds, 233 S.W. 223; Reno v. Railroad Co., 180 Mo. 488; Rowe v. Rys. Co., 247 S.W. 446; Boyd v. Rys. Co., 105 Mo. 371; Mockowik v. Railroad Co., 196 Mo. 570. Motorists first entering intersection held not bound to anticipate another's excessive speed and inability to stop motor truck. Stelmach v. Saul, 50 S.W.2d 721; Sponsler v. Schroeder, 72 S.W.2d 152. The humanitarian doctrine does not take into consideration any negligence of the parties arising prior to the situation of peril. Ritz v. Cousins Lbr. Co., 59 S.W.2d 1078; Homan v. Railroad Co., 64 S.W.2d 624; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014. (2) A defendant can complain of instructions given at request of a codefendant which affect the question of his liability to plaintiff. Barr v. Nafziger Baking Co., 41 S.W.2d 563, 328 Mo. 423; Story v. Peoples Motorbus Co., 37 S.W.2d 898; Pierce v. Michel, 60 Mo.App. 187; Asmus v. United Ry. Co., 152 Mo.App. 521, 134 S.W. 92. Where defendant in tort action obtained instruction assuming material controverted fact constituting negligence on part of codefendant held erroneous and was prejudicial to codefendant. Barr v. Nafziger Baking Co., 41 S.W.2d 563, 328 Mo. 423. (3) Motorist first entering intersection held not bound to anticipate another's excessive speed and inability to stop motor truck. Stelmach v. Saul, 50 S.W.2d 721; Sponsler v. Schroeder, 72 S.W.2d 152. It is almost universally held that where two or more persons have a common purpose in driving an automobile, whether for business or pleasure, and its operation is under their joint control, the negligence of the driver is to be imputed to the other member or members of the joint enterprise. Counts v. Thomas, 63 S.W.2d 419; Tannehill v. Ry. Co., 279 Mo. 158, 213 S.W. 822; Treadway v. United Rys. Co., 300 Mo. 156, 253 S.W. 1037; McKerall v. Ry. Co., 257 S.W. 166; Roland v. Anderson, 282 S.W. 754; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Perrin v. Wells, 22 S.W.2d 863. When the charge of joint mission and enterprise is supported by the evidence, it is the duty of the court to instruct the jury on such issue. Parsons v. Himmelsbach, 68 S.W.2d 843; Pence v. K. C. Laundry Co., 59 S.W.2d 636.

Albert E. Hausman for respondent.

(1) The petition states a cause of action; it is actionable negligence to drive an automobile into another automobile approaching at right angle on an intersecting street, when by the highest degree of care in checking speed or changing direction, the collision would have been avoided. Banks v. Morris & Co., 302 Mo. 254. (2) Plaintiff came into a position of peril when it became, or would have become, apparent to a driver using the highest degree of care, that a collision would occur, unless one or both of the auto drivers involved, namely, Ellsberry and Fellis, checked speed or changed direction. Smith v. K. C. Pub. Serv. Co., 328 Mo. 979; Maginness v. Railroad Co., 268 Mo. 678; Smith v. Railroad Co., 321 Mo. 105; Larkins v. Wells, 278 S.W. 1087; Allen v. Kessler, 64 S.W.2d 630; Lydon v. Atlas T. Co., 53 S.W.2d 38. (3) The court will take judicial notice that a passenger automobile, being driven on a city street at a speed of seven miles per hour, about midway between the curbs of a street thirty-five feet wide, at an intersection with a right angle street thirty feet wide, can be sufficiently checked in speed or changed in direction to avoid a collision with an automobile which was seen or could have been seen on the intersecting street, from 75 to 125 feet distant, approaching at a speed of twenty-five miles per hour. Chawkley v. Railroad Co., 317 Mo. 782; Spoeneman v. Uhri, 60 S.W.2d 9; Latson v. St. Louis Transit Co., 192 Mo. 463. (4) Right of way at intersection of streets does not relieve party arriving first at intersection from duty to exercise highest degree of care for safety of his passenger or guest. Brooks v. Menaugh, 284 S.W. 804; Pappas Pie Co. v. Stroh, 67 S.W.2d 793. (5) Appellant Fellis was owner and driver of the automobile; respondent Mrs. McCombs was his passenger or guest. As between them the doctrine of imputed negligence has no application. The driver, whether he be agent or servant or host, must exercise the highest degree of care for the safety of his passenger. Kaley v. Huntley, 63 S.W.2d 21; Donohoe v. Jett, 137 A. 724; 18 R. C. L. 502, sec. 13; 5-6 Huddy Ency. of Automobile Law 290, sec. 149. (6) No error was committed in giving Instruction 5 for defendant Ellsberry. (a) It did not direct a judgment against appellant. (b) It only defined the rights of defendant Ellsberry. Maher v. Donk Bros., 20 S.W.2d 888. (c) It did not assume negligence on the part of appellant. Conrad v. Hambra, 25 S.W.2d 808; Hunt v. St. Louis, 278 Mo. 213; Phelan v. Paving Co., 183 Mo. 531; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Warren v. Giudici, 50 S.W.2d 634; Lewis v. Railroad Co., 50 S.W.2d 122; Hummel v. Railroad Co., 15 S.W.2d 363; Adams v. St. L. Pub. Serv. Co., 32 S.W.2d 100; Flynn v. St. L. Pub. Serv. Co., 41 S.W.2d 885; Lepchenski v. Railroad Co., 59 S.W.2d 610; Cummins v. Holly, 60 S.W.2d 52; Christiansen v. St. L. Pub. Serv. Co., 62 S.W.2d 828; McCleery v. Marshall, 65 S.W. (2d), 1042; Hill v. St. L. Pub. Serv. Co., 64 S.W.2d 633; Sisk v. Railroad Co., 67 S.W.2d 830; Kinlen v. Railroad Co., 216 Mo. 161; Ludwig v. Cooperage Co., 156 Mo.App. 117; Geary v. Railroad Co., 138 Mo. 251; Moore v. Transit Co., 193 Mo. 411; Heriford v. Railroad Co., 220 S.W. 899; O'Leary v. Scullin Steel Co., 303 Mo. 363; Bosley v. Wells, 260 S.W. 125; Guthrie v. Wenzlick, 54 S.W.2d 805; Costello v. Kansas City, 280 Mo. 576. (7) Appellants' Instruction 9 was properly refused. It was abstract; did not authorize a verdict for or against either party, and it did not correctly state the law. Brooks v. Menaugh, 284 S.W. 803, 323 Mo. 1089; Baker v. Scott County Milling Co., 43 S.W.2d 411; Pappas Pie Co. v. Stroh, 67 S.W.2d 793.

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

OPINION

BOHLING

From a judgment for $ 8000 obtained by Marie McCombs against Walter Fellis and Oliver Ellsberry for personal injuries sustained in an automobile accident, Fellis appeals.

Respondent had occasion to transact some business at the city hall in St. Louis, and appellant offered, purely as an accommodation to respondent for which he received no remuneration, to take respondent in his Essex coach. Appellant was driving his car, with a party seated in the front seat and respondent occupying the rear seat. The accident occurred on the return trip shortly after the noon hour on July 16, 1930, at Spring Avenue and Forest Park Boulevard, public thoroughfares of the city intersecting at right angles. Spring Avenue is a north and south street thirty to thirty-five feet in width, and Forest Park Boulevard an east and west street, with two traffic lanes, each thirty feet in width -- the north lane used by westbound traffic and the south lane by eastbound traffic -- with a parkway or grass plot, forty to forty-five feet in width, between said traffic ways. Oliver Ellsberry was operating a big six seven-passenger Studebaker sedan, as a service car, west along the north lane of Forest Park Boulevard, with Nadine Robinson as a passenger seated in the front seat. Appellant, going east along the south lane of Forest Park Boulevard, turned left into Spring Avenue and proceeded toward the north lane of Forest Park Boulevard. There was no traffic on the highways in question interfering with the operation of either automobile. The occupants of the Studebaker, Ellsberry while from one hundred to one hundred and twenty-five feet and Nadine Robinson while about a quarter block east of Spring Avenue, saw the Essex just prior to or at the time it was turning into Spring Avenue. While the Essex was turning into Spring...