Pennington v. Weis

• Decision Date: 04 December 1944
• Docket Number: 39057
• Citation: 184 S.W.2d 416,353 Mo. 750
• Parties: Willard Pennington v. John Weis, Jr., et al., Doing Business as John J. Meier & Company, Appellants
• Court: Missouri Supreme Court

184 S.W.2d 416

353 Mo. 750

Willard Pennington v. John Weis, Jr., et al., Doing Business as John J. Meier & Company, Appellants

No. 39057

Supreme Court of Missouri

December 4, 1944

Rehearing Denied or Motion to Transfer to Banc Overruled January 2, 1945.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Paul C. Sprinkle, William F. Knowles and Sprinkle & Knowles for appellants.

(1) The court erred in refusing to sustain appellants' demurrer at the close of all the evidence for the reason that plaintiff did not make a submissible case for the jury in that it was shown by all of the testimony that so far as an attempt to recover upon primary negligence, the plaintiff was guilty of contributory negligence as a matter of law, and it was further shown by all the evidence that so far as humanitarian negligence was concerned, the plaintiff never did get into a position of imminent peril in time for appellants' driver to have avoided the collision. Banks v. Morris, 257 S.W. 482, 302 Mo. 254; Shields v. Keller, 153 S.W.2d 60, 348 Mo. 326; McGowan v. Wells, 24 S.W.2d 633, 324 Mo. 652; Camp v. Kurn, 142 S.W.2d 772, 235 Mo.App. 109; Thomasson v. Henwood, 146 S.W.2d 88, 235 Mo.App 1211; Zickefoose v. Thompson, 148 S.W.2d 784, 347 Mo. 579; Lamoreux v. Railway Co., 87 S.W.2d 640, 337 Mo. 1028; Robards v. Kansas City Pub. Serv. Co., 177 S.W.2d 709; Sullivan v. Railway Co., 297 S.W. 945, 317 Mo. 996; State ex rel. Wabash Ry. Co. v. Bland, 281 S.W. 690, 313 Mo. 246; Bebout v. Kurn, 154 S.W.2d 120, 348 Mo. 501; Smithers v. Barker, 111 S.W.2d 47, 341 Mo. 1017. (2) The court erred in giving Instruction 1 on behalf of the plaintiff, which instruction is one under the humanitarian doctrine, and which instruction was incomplete and failed to submit said doctrine to the jury within legal limits, in that said instruction allows a recovery under said doctrine when the plaintiff was approaching a position of imminent peril; said instruction does not inform the jury as to when plaintiff was in a position of imminent peril, but said instruction grants the jury a roving commission to decide for itself all of the elements necessary for a recovery under said doctrine. Perkins v. Terminal Co., 102 S.W.2d 915, 340 Mo. 868; Smithers v. Barker, 111 S.W.2d 47, 341 Mo. 1017; Buehler v. Festus Mercantile Co., 119 S.W.2d 961, 343 Mo. 139; Lotta v. Kansas City Pub. Serv. Co., 117 S.W.2d 296, 342 Mo. 743; Hilton v. Terminal Assn., 137 S.W.2d 520, 345 Mo. 987; Poague v. Kurn, 140 S.W.2d 13, 346 Mo. 153; Evans v. Farmers Elevator Co., 147 S.W.2d 593, 347 Mo. 326; Chastain v. Winton, 152 S.W.2d 165, 347 Mo. 1211; Kick v. Franklin, 137 S.W.2d 512, 345 Mo. 752; Branson v. Abernathy Furniture Co., 130 S.W.2d 562, 344 Mo. 1171; Clifford v. Pitcairn, 131 S.W.2d 508, 345 Mo. 60; State ex rel. Snider v. Shain, 137 S.W.2d 527, 345 Mo. 950; Duckworth v. Dent, 142 S.W.2d 85, 346 Mo. 518; Baker v. Wood, 142 S.W.2d 83; Roach v. Kansas City Pub. Serv. Co., 141 S.W.2d 800.

Ben W. Swofford, Mitchell J. Henderson, Jr., and T. James Conway, Jr., for respondent.

(1) The defendants' demurrer to the evidence was properly overruled. The evidence in the record, viewed in its light most favorable to the plaintiff, clearly makes out a submissible case under the humanitarian doctrine and all necessary elements for recovery under that doctrine are present and supported by substantial evidence. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Mayfield v. K.C. Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784; Perkins v. Terminal Ry. Co., 340 Mo. 868, 102 S.W.2d 915; Crews v. K.C. Public Serv. Co., 341 Mo. 1090, 11 S.W.2d 54; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Brown v. Callicotte, 73 S.W.2d 190; Hopkins v. Sweeney Automobile School, 196 S.W. 772; Drake v. Thym, 231 Mo.App. 383, 97 S.W.2d 128; Pence v. K.C. Laundry Serv. Co., 332 Mo. 930, 59 S.W.2d 633. (2) Plaintiff's Instruction 1 properly submitted the case to the jury upon the humanitarian doctrine. It was not necessary for the plaintiff to prove in the trial or hypothecate in his instruction the fact that he was either in the intersection or in the direct path of the truck in order to rely on the humanitarian doctrine. Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420; Collins v. Beckmann, 79 S.W.2d 1052; Hawken v. Schwartz, 72 S.W.2d 877; Oliver v. Morgan, 73 S.W.2d 993; Gray v. Columbia Terminals Co., 52 S.W.2d 809. (3) The jury was required to find that the plaintiff was in a position of imminent peril before any duty to act under the humanitarian doctrine was placed upon the defendant's driver in Instruction 1. Perkins v. Terminal Ry. Co., 340 Mo. 868, 102 S.W.2d 915; State ex rel. Snider v. Shane, 345 Mo. 950, 137 S.W.2d 527; Zickefoose v. Thompson, 157 S.W.2d 259; Reiling v. Russell, 348 Mo. 279, 153 S.W.2d 6; Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105; Hein v. Peabody Coal Co., 337 Mo. 626, 85 S.W.2d 604; Brown v. Callicotte, 73 S.W.2d 190; Marshak v. Grocery Co., 83 S.W.2d 185. (4) Plaintiff was not required to define the term "imminent peril" nor set forth the exact point where the plaintiff's position of imminent peril began since this was a question of fact for the jury. Perkins v. Terminal Railroad Assn., 340 Mo. 868, 102 S.W.2d 915; Bryant v. K.C. Rys. Co., 286 Mo. 342, 228 S.W. 472; Allen v. Kessler, 64 S.W.2d 631; Kloeckener v. St. Louis Pub. Serv. Co., 331 Mo. 396, 53 S.W.2d 1043; Womack v. Mo. Pac. Ry. Co., 337 Mo. 1160, 88 S.W.2d 368; Oliver v. Morgan, 73 S.W.2d 993; Woods v. Moffitt, 225 Mo.App. 801, 38 S.W.2d 525.

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

OPINION

WESTHUES

Willard Pennington obtained a judgment against the defendants in the sum of $ 18,000 as damages for personal injuries sustained in a collision between a truck owned by the defendants and a motorcycle being operated by Pennington. Failing to obtain a new trial defendants appealed.

The case was submitted to a jury under the humanitarian doctrine. Defendants' principal contention is that the evidence was insufficient to sustain the verdict. The collision occurred about 10:30 a.m., February 5, 1943, at the intersection of Charlotte street and Independence avenue, Kansas City, Missouri. The truck in question was being driven north on Charlotte street and the motorcycle west on Independence avenue. There was a sign on Charlotte street warning traffic to slow down to ten miles per hour for the intersection and a sign on Independence avenue giving a warning to slow to fifteen miles per hour. The driver of the truck testified that he almost came to a stop at the south line of Independence to permit two cars which were being driven east on Independence avenue to pass in front of him; that he entered the intersection at a speed of about two to four miles per hour; that he looked east and saw a motorcycle about one hundred and fifty feet away approaching the intersection; that he assumed or thought he had sufficient time to cross the intersection ahead of the motorcycle; that he increased his speed and drove through the intersection without again looking to the east; that he did not notice the motorcycle any more until he felt it strike his truck. He testified that the front end of the truck was then about even with the building line north of Independence avenue. Plaintiff testified that he slowed down to about fifteen miles per hour as he approached the intersection; that when he was about twenty-five feet from the east line of Charlotte street he looked to the south and then to the north and noticed no cars approaching; that when he turned his head from the north to look straight ahead he saw the truck, traveling fifteen to twenty miles per hour, crossing the intersection; that he immediately applied the brakes and turned north with the truck in an attempt to avoid a collision; that the left handle bar of the motorcycle came in contact with the truck. Plaintiff was thrown to the pavement and sustained serious injuries. His pelvis was fractured and his right kidney was injured to such an extent that it had to be removed.

We need not review the evidence to determine whether plaintiff was negligent in placing himself in a position of peril, because under the humanitarian doctrine that is no defense. We will assume, therefore, that plaintiff's peril was due to his own negligence. The question for decision is, does the evidence justify a finding that a collision could have been avoided if the operator of the truck had exercised due care? That answer must be in the affirmative. The evidence of the driver of the truck materially aided plaintiff's case. He testified that he saw the motorcycle approaching from the east, a distance of about one hundred and fifty feet, when the truck was entering the intersection. The driver then looked north and paid no further attention to the motorcycle. This in view of the fact that he should have known that the motorcycle would be dangerously near his truck by the time the truck came into its pathway. The driver also testified that when the front end of the truck was entering the north half of Independence avenue he could have turned west on that street. There was no traffic going south on Charlotte at that time. The driver also stated that when he was south of the center of Independence avenue he could have stopped his truck within a distance of a foot. A jury could well have found from the evidence that the driver of the truck was guilty of negligence in not glancing to the east to see where the motorcycle was before the truck was driven across the center line of Independence avenue....