Pelzer v. Zeltmann
| Decision Date | 05 October 1937 |
| Docket Number | No. 24277.,24277. |
| Parties | PELZER v. ZELTMANN. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.
"Not to be published in State Reports."
Suit by Edward Pelzer against Jacob Zeltmann. Judgment for the plaintiff, and the defendant appeals.
Reversed and remanded.
Wilbur C. Schwartz, of St. Louis, for appellant.
Gerritzen & Gerritzen, of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action for personal injuries and property damage sustained by plaintiff on November 15, 1934, when the automobile which he was operating was struck by an automobile driven by defendant. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $1,500. Judgment was rendered accordingly, and defendant's appeal to this court has followed in the usual course.
The collision occurred about 6:30 o'clock in the evening in front of plaintiff's home at 3711 Gravois, in the city of St. Louis.
Plaintiff, according to his own evidence, was backing his automobile at an angle from the street into the driveway of his home when it was run into by defendant's westbound automobile, the right rear end of defendant's car striking the left front corner of plaintiff's car as defendant swung over to the left toward the street car tracks in a belated attempt to avoid a collision. Defendant for his part denied having ever changed his course in the street, but testified that he at no time saw plaintiff's automobile prior to the collision and was only apprised of the fact of a collision when he heard the noise of the impact as he passed the point where the collision occurred.
Abandoning the assignments of primary negligence contained in his petition, plaintiff submitted his case upon the theory of negligence under the humanitarian doctrine, embracing the elements of defendant's failure to have stopped, slackened the speed of, or swerved his automobile in time to have avoided the collision.
The answer was a general denial, coupled with a plea of contributory negligence to the effect that plaintiff, without looking or paying any attention to what he was doing, had caused, suffered, and permitted the left front part of his automobile to contact the right rear part of defendant's automobile.
The reply was in the conventional form.
Defendant's assignments of error are addressed to the giving of two of plaintiff's three instructions.
In plaintiff's principal instruction No. 1 he conditioned his recovery upon a finding by the jury, among other things, that defendant could have averted a collision in the manner hypothesized "with reasonable safety to his said automobile and the occupants thereof." Defendant argues that this particular requirement was not enough, but that plaintiff should have gone further, and, as an essential element of his case, have included the hypothesis that defendant could have avoided the collision without injury to persons other than the occupants of defendant's automobile.
We think that under the particular facts of the case this criticism of the instruction is unavailing. It is to be borne in mind that the element of the avoidance of injury to others does not inhere in every humanitarian doctrine case, but is required to be taken into consideration upon the question of the defendant's liability only where there is evidence that for the defendant to have employed the means at his disposal to have averted striking the plaintiff would have endangered the safety of other persons. McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.(2d) 907. In other words, the defendant is not to be convicted of negligence under the humanitarian doctrine if he could have avoided injuring the plaintiff only by inflicting injury upon himself or third persons, or even only by exposing himself or them to an unreasonable hazard. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.(2d) 9.
In this case there was no evidence, at least from plaintiff's standpoint, that the stopping, slackening the speed, or swerving of defendant's automobile would have endangered the safety of other persons in the vicinity. Plaintiff's own testimony was that there was nothing in front of defendant's automobile up until the time of the collision, and in fact that there were no other vehicles being driven westwardly on Gravois at the moment. It is true that there was...
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