Moffatt v. Link
| Decision Date | 25 March 1921 |
| Citation | 229 S.W. 836,207 Mo.App. 654 |
| Parties | LALA MOFFATT, Respondent, v. LINDER W. LINK, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Webster Circuit Court.--Hon. C. H. Skinker, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Barbour & McDavid for appellant.
(1). The plaintiff was guilty of negligence in leaving the sidewalk and walking several hundred feet out in the roadway of the street on a very dark night and without once looking back, when to look was to see the lights of the approaching automobile, and without paying any heed or attention to her surroundings, or to her own safety. She knew that automobiles, jitneys and street cars frequently ran on this street both day and night, and plaintiff testified that she never looked back after she went into the roadway. Her contributory negligence is clearly established. Theobald v. Transit Co., 191 Mo. 429; Lowry v. Smith, 198 S.W. 437 (Mo. App.); Petty v. Railroad, 179 Mo 674; Minor v. Stevens, 42 L.R.A. (N. S.) 1178; Berry on Automobiles, sec. 214 and 215; McGauley v. Transit Co., 179 Mo. 590; Owens v. Railroad, 188 Mo.App. 454; Engleking v. Railroad, 187 Mo. 164; Willis v. Harby, 144 N.Y.S. 154; Mills v Powers, 102 N.E. 912; Harrigan v. Wright, 63 A 234; Wilkins v. Transp. Co., 101 N.Y.S. 650. (2) When to look is to see, the injured person is held to have seen. The lights on the automobile were burning and plainly visible to plaintiff if she had looked. McGee v. Railroad, 214 Mo. 545; Barrie v. Transit Co., 102 Mo.App. 91 and 93; Sanguinette v. Railroad, 196 Mo. 495; Hook v. Railway, 162 Mo. 580; Pennell v. Railroad, 153 Mo.App. 570; Dyrcz v. Railroad, 238 Mo. 47; Markowitz v. Railway, 186 Mo. 357; Kinlen v. Railroad, 216 Mo. 158. (3.) All witnesses who testified on the subject, Dr. Pipkin, Carl Thomas and Claude German saw the automobile lights. What they saw, the plaintiff could have seen if she had looked. Burge v. Railroad, 244 Mo. 94; Payne v. Railway, 136 Mo. 384; Vandeventer v. Railroad, 177 S.W. 838; Carlson v. Railway, 187 S.W. 845; Osborn v. Railroad, 179 Mo.App. 259. (4) The action being based on the Humane Rule, under the facts conceded and proved in the case at bar, plaintiff concedes that she was guilty of negligence in placing herself in a place of danger, and it was error to submit that issue to the jury. Clark v. Railroad, 242 Mo. 605; Webb v. Railroad, 196 S.W. 88 (Mo. App.); Laughin v. Railroad, 144 Mo.App. 205; Eiseman v. Griffith, 181 Mo.App. 186; Strauss v. Railroad, 166 Mo.App. 155; O'Farrell v. Railroad, 157 Mo.App. 619; Johnson v. Railroad, 203 Mo. 415; McGee v. Railroad, 214 Mo. 541; Whitesides v. Railroad, 186 Mo.App. 617-618; Kreymeyer v. Transit Co., 220 Mo. 650. When a different rule prevails is clearly illustrated in the following cases: O'Keefe v. Railways Co., 124 Mo.App. 613; Davis v. Railroad, 155 Mo.App. 318. (5.) The Humane Rule only applies and authorizes a recovery where the injured party is ignorant of, or oblivious to impending danger. And where the action is predicated on a breach of humane duty the burden is on the plaintiff to show affirmatively, that she was in imminent peril, was unconscious thereof, and that, had the defendant been in the exercise of ordinary care, he would have seen plaintiff and had knowledge of such facts in time, thereafter, to avert the injury with the means at hand and with safety to the occupants of the automobile. Ellis v. Railway, 234 Mo. 672; Knapp v. Dunham, 195 S.W. 1062; Miller v. Harvey, 199 Mo.App. 633; Williamson v. Railroad, 139 Mo.App. 492; Keele v. Railroad, 151 Mo.App. 377; Burde v. Railroad, 123 Mo.App. 634; Lewis v. Railway, 181 Mo.App. 423; England v. S.W. Ry. Co., 190 S.W. 32; Pope v. Railroad, 242 Mo. 238; Kinlen v. Railroad, 216 Mo. 164; Pennell v. Railroad, 153 Mo.App. 571; Moore v. Railroad, 176 Mo. 544; Veatch v. Railroad, 145 Mo.App. 238; Webb v. Railway, 196 S.W. 87; Guyer v. Railroad, 174 Mo. 350. (6.) The Humane Rule does not apply in cases where the driver had no warning that the party injured was oblivious to the situation, or that she was about to put herself in a position of danger. Ellis v. Railway, 234 Mo. 672; Knapp v. Dunham, 195 S.W. 1062; Miller v. Harvey, 199 Mo.App. 633; Williamson v. Railroad, 139 Mo.App. 492; Keele v. Railroad, 151 Mo.App. 377; McGee v. Railroad, 153 Mo.App. 498; Pennell v. Railroad, 153 Mo.App. 571; Pope v. Railroad, 242 Mo. 239; Kinlen v. Railroad, 216 Mo. 164; Haffey v. Railway, 154 Mo.App. 495; Shelton v. Railroad, 167 Mo.App. 410; Schupp v. Railroad, 166 Mo.App. 601; Sites v. Knott, 197 Mo. 712; Draper v. Railway, 199 Mo.App. 489; Wasmer v. Railroad, 167 Mo.App. 219; Reeves v. Railroad, 251 Mo. 178; Degonia v. Railroad, 224 Mo. 594; Veatch v. Railroad, 145 Mo.App. 239; Reno v. Railroad, 180 Mo. 488.
George W. Goad and John Schmook for respondent.
(1) The proximate cause of plaintiff's injury was defendant's negligence in operating his automobile as alleged and established by the evidence. Solomon v. Duncan, 194 Mo.App. 517; Knoxville Ry. and Light Co. v. Vaughilder, 132 Tenn. 487, 178 S.W. 1117; West Court Co. v. White, 130 Tenn. 530, 172 S.W. 301; Lawson v. Fon du Lac, 141 Wis. 57, 123 N.W. 629; McManus v. Wolverton, 10 N.Y.S. 545; McDonald v. Yoder, 101 P. 468; Felver v. Railroad, 216 Mo. 195, 212. (2) Plaintiff was not shown guilty of such contributory negligence as would bar her recovery as a matter of law. Dignum v. Weaver, 204 S.W. 566; Lowery v. Smith, 198 S.W. 437; Meenach v. Crawford, 187 S.W. 879; Sullivan v. Chauvenet, 186 S.W. 1090; Frankel v. Hudson, 271 Mo. 503; Osterman v. Implement Co., 255 Mo. 128; Caradine v. Ford, 195 Mo.App. 684; Hodges v. Chambers, 171 Mo.App. 563; Bongner v. Zeigenhein, 165 Mo.App. 328; Wyler v. Ratican, 150 Mo.App. 474; Felver v. Railroad, 216 Mo. 195, 212. (3) Under the evidence it was clearly a question for the jury whether or not defendant was guilty of negligence under the humanitarian rule. Rowe v. Hammond, 172 Mo.App. 203; Lowery v. Smith, 198 S.W. 439; Frankel v. Hudson, 196 S.W. 1123; Grouch v. Heffner, 184 Mo.App. 372; Hodges v. Chambers, 171 Mo.App. 563; Wyler v. Ratican, 150 Mo.App. 474. (4) Under the evidence, plaintiff was entitled to recover under the humanitarian rule, as defendant, by the exercise of ordinary care would have discovered plaintiff in a position of peril, in time, by the exercise of ordinary care, to have avoided injurying her. Taylor v. Met. St. Railway, 256 Mo. 213; Ostermeier v. Implement Co., 255 Mo. 128; Clark v. Railroad, 242 Mo. 570; White v. Railroad, 202 Mo. 560; Rowe v. Hammond, 172 Mo.App. 203; McDonald v. Yoder, 101 P. 568; McManus v. Wolverton, 19 N.Y.S. 545. (5) Specific acts of negligence--under statute or common law--together with negligence which invoke the humanitarian rule, may be pleaded in one count; and it is proper for the court to instruct the jury on both theories. Taylor v. Met. St. Railway, 256 Mo. 191; Fleming v. Railroad, 263 Mo. 189; Farrer v. Railroad, 249 Mo. 210; Clark v. Railroad, 242 Mo. 570; Nivert v. Railroad, 232 Mo. 636; Murphy v. Railroad, 228 Mo. 123; Krehmeyer v. Transit Co., 220 Mo. 639; White v. Railroad, 202 Mo. 560; Haly v. Railroad, 197 Mo. 23; Ropp v. Transit Co., 190 Mo. 144; Hoffinger v. Young, 179 S.W. 747; Owen v. Delano, 194 S.W. 756; Vaughn v. Lemp Brewing Co., 152 Mo.App. 48; De Rousee v. West et al., 200 S.W. 783. (6) Plaintiff is not required to allege, nor is the jury required to be instructed, that plaintiff was unconscious of her danger, and that defendant by the exercise of ordinary care could have seen that she was unconscious thereof. Morgan v. Railroad, 159 Mo. 262; Kinder v. Railroad, 216 Mo. 164; Bybee v. Dunham, 198 S.W. 190; Hoffinger v. Young, 179 S.W. 747-749; Ottofy v. Trust Co., 196 S.W. 428; Guenter v. Railroad, 108 Mo. 18; Riska v. Railroad, 180 Mo. 168; Chamberlain v. Railroad, 133 Mo. 587, 595, 602. (7) Plaintiff's instruction No. 1. followed the petition, was authorized by the evidence, and properly submitted to the jury the case made by plaintiff under the specific allegations of negligence. Cool v. Peterson, 189 Mo.App. 725; Sapp v. Hunter, 134 Mo.App. 685. (8) Plaintiff's instruction No. 2, properly submitted her case under humanitarian rule. Hoffinger v. Young, 179 S.W. 747, 749; Ottofy v. Trust Co., 196 S.W. 428; Murphy v. Railroad, 228 Mo. 70; Hall v. Railroad, 219 Mo. 577, 591; Vaughn v. Lemp Brewing Co., 152 Mo.App. 48; Guenter v. Railroad, 108 Mo. 18; Riska v. Railroad, 180, Mo. 168; Chamberlain v. Railroad, 133 Mo. 587, 595, 602; Eppstien v. Railroad, 197 Mo. 736; Rayburn v. Railroad, 187 Mo. 572; Rapp v. Transit Co., 190 Mo. 144; Morgan v. Railroad, 159 Mo. 270. (9) Plaintiff's fifth instruction properly submitted the law relative to the right of plaintiff and defendant on the public highway, and was not an abstract statement. Ottofy v. Trust Co., 196 S.W. 428; Dignum v. Weaver, 204 S.W. 566; Caradine v. Ford, 195 Mo.App. 684; Hodges v. Chambers, 171 Mo.App. 573; Wyler v. Ratican, 150 Mo. 474; Felver v. Railroad, 216 Mo. 195, 212; Rapp v. Railroad, 190 Mo. 160; Kennayde v. Railroad, 45 Mo. 255, 262.
At a prior term we affirmed the judgment in this cause, but granted a rehearing. Plaintiff sued to recover damages sustained by defendant running her down with his automobile in a public street in the city of Springfield, Missouri. Plaintiff recovered and defendant prosecutes this appeal.
The acts of negligence alleged are: (1) That defendant when approaching plaintiff failed to keep a vigilant watch for persons traveling on the street; (2) that defendant was operating his automobile at a great and dangerous rate of speed; (3) that the automobile was being operated in the nighttime...
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