Phillips v. Henson

• Decision Date: 04 September 1930
• Docket Number: No. 28523.,28523.
• Citation: 30 S.W.2d 1065
• Parties: LLOYD A. PHILLIPS, Appellant, v. FRANK L. HENSON.
• Court: Missouri Supreme Court

30 S.W.2d 1065

LLOYD A. PHILLIPS, Appellant, v. FRANK L. HENSON.

No. 28523.

Supreme Court of Missouri. Division One.

September 4, 1930.

Appeal from Circuit Court of St. Louis County. — Hon. John W. McElhinney, Judge.

REVERSED AND REMANDED.

Inman, Horsefield & Cravens for appellant.

(1) It was the duty of the defendant to give a signal of his intention to turn his truck at the intersection, and plaintiff's offered instruction, refused by the court, submitting that issue, should have been given. Laws 1921 (1st Ex. Sess.) p. 94, sec. 21, subsec. J; Thompson v. Smith, 253 S.W. 1023; Mueller v. Holekamp, 260 S.W. 122; Berry on Automobiles (4 Ed.) 848, secs. 909, 910. Failure to so signal is negligence per se. Propulonris v. Const. Co., 213 S.W. 792. (2) Plaintiff was not guilty of contributory negligence as a matter of law. Trimbell v. Price, 282 S.W. 89; Reitz v. Hodgkins, 185 Ind. 163. (3) The evidence entitled plaintiff to go to the jury upon the humanitarian doctrine, and plaintiff's offered instruction properly submitted that doctrine. Evans v. Klussmeyer, 301 Mo. 361; Treadway v. United Rys. Co., 282 S.W. 441. (4) The instruction properly hypothesized the defendant's duty to exercise the highest degree of care under the humanitarian doctrine, and should have been given. Gude v. Weich Bros., 16 S.W. (2d) 59; Hults v. Miller, 299 S.W. 85; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; State ex rel. Dowell v. Allen, 250 S.W. 580; Threadgill v. United Railways Co., 279 Mo. 466, 214 S.W. 161; Monroe v. Railway Co., 297 Mo. 633, 249 S.W. 644; Bruce v. Packing Co. (Mo. App.), 6 S.W. (2d) 986. (5) Instruction 4, given at the request of the defendant, was erroneous and prejudicial, because it completely ignored and omitted plaintiff's right to recover under the humanitarian or last-chance doctrine, and denied him a recovery if he was guilty of contributory negligence. Burke v. Pappas, 316 Mo. 1235, 293 S.W. 145; Spindler v. Wells, 276 S.W. 387; Yakoboski v. Wells, 253 S.W. 72; Jackson v. Railway Co., 232 S.W. 752; Nipper v. Railway Co., 145 Mo. App. 224. (6) Instruction 5 is erroneous and prejudicial, because it tells the jury that if plaintiff was guilty of contributory negligence he has no case and their verdict must be for the defendant. This instruction ignores and specifically excludes the humanitarian doctrine from the consideration of the jury. Authorities under Point 5. (7) Non-direction constitutes reversible error where good specific instructions are asked and refused. Morgan v. Mulhall, 214 Mo. 462. (8) Since defendant's instructions numbered 4 and 5 are erroneous they are presumed to be prejudicial. Avery v. Insurance Co., 280 S.W. 726.

Hausner & Versen and George Barnett for respondent.

(1) The court properly refused Instruction 1 requested by plaintiff because: (a) The instruction was erroneous and improper for the reason that it required defendant to give a warning when plaintiff admitted that he was fully aware of the presence of the truck. Under these circumstances defendant's failure to sound horn could not have been the proximate cause of the collision. Priede v. Crandall, 187 S.W. 605; Hannah v. Butts, 14 S.W. (2d) 31; Steigleder v. Londale, 253 S.W. 487; Peterson v. United Railways Co., 270 Mo. 67, 192 S.W. 938; De Wolf v. Stix, Baer & Fuller D.G. Co., 240 S.W. 1094; Winkler v. United Railways Co., 229 S.W. 229; Woods v. Railways Co., 187 S.W. 11; Murray v. Transit Co., 176 Mo. 183; Hutchinson v. Railway, 195 Mo. 546; Heintz v. Transit Co., 115 Mo. App. 667; Mockowik v. Railway, 196 Mo. 550; Gubernick v. United Railways Co., 217 S.W. 34. (b) The instruction was erroneous and therefore properly refused, for the reason that the statute with reference to giving a signal of intention to turn to the left is entirely for the protection of persons approaching from the rear. Laws 1921 (1st Ex. Sess.) 93. (c) The instruction could not have been predicated upon any theory of common-law negligence, for the reason that it did not require a finding that the acts therein referred to were done negligently. Curlin v. Merchants Bridge Terminal Ry. Co., 232 S.W. 215; Burton v. Ry. Co., 111 Mo. App. 617. (d) Where plaintiff depends upon the theory of negligence per se because of the alleged violation of a statute requiring an automobile driver on a public street to use the highest degree of care, then the existence of the street as a public highway must be alleged and proved. State v. Hood, 143 Mo. App. 313; State v. Cunningham, 61 Mo. App. 188; State v. Parsons, 53 Mo. App. 188; State v. Transue, 131 Mo. App. 323; State v. Scott, 37 Mo. App. 541. (e) The highest degree of care is required of the driver of an automobile only when same is being operated upon a public street. There is not a syllable of evidence in the record to the effect that either Easton Avenue or Kienlen Avenue was a public street. Laws 1921 (1st Ex. Sess.) 77. (f) The courts will not take judicial notice of the existence, location or nature of streets. Fidelity & Casualty Co. v. Railways Co., 231 S.W. 277; Breckenridge v. Ins. Co., 87 Mo. 62; Vonkey v. St. Louis, 219 Mo. 37; Columbia Taxicab Co. v. Mercurio, 236 S.W. 1096. (2) Plaintiff was guilty of contributory negligence as a matter of law. Popping v. Bourne, 191 S.W. 1032. (3) The court properly refused to give Instruction 2 requested by plaintiff, because: (a) The statute requires the driver of an automobile to use the highest degree of care only when operating an automobile on a public street. There is no proof in the record that the streets in question were public. Laws 1921 (1st Ex. Sess.) 77. (b) The instruction was erroneous and therefore properly refused, for the reason that it was predicated upon the fact that plaintiff was in a position of danger when approaching Kienlen Avenue. Obviously, under all the evidence, the plaintiff was not in a position of danger when approaching Kienlen Avenue, and the instruction, therefore, was not within the purview of the evidence. State ex rel. Peoples Bank v. Melton, 251 S.W. 447; Foster v. Davis, 252 S.W. 433. (c) The instruction was predicated upon defendant's alleged negligence in failing to warn the plaintiff of his approach. Plaintiff was fully aware of the presence of defendant's truck, and failure to warn, therefore, could not have been the proximate cause of plaintiff's injury. (d) The facts did not justify the submission of the case under the humanitarian doctrine. Popping v. Bourne, 191 S.W. 1032; Whitaker v. Mo. Pac. Ry. Co., 15 S.W. (2d) 1001; Heard v. Ry. Co., 16 S.W. (2d) 719. (e) The instruction assumes that plaintiff was in a position of danger when approaching Kienlen Avenue. Hunter v. Ry. Co., 248 S.W. 998; State ex rel. Fire Ins. Co. v. Trimble, 250 S.W. 393; Woolston v. Blythe, 251 S.W. 145. (4) Plaintiff's Instruction 4 was properly given. The plaintiff was not entitled to go to the jury under the last-chance doctrine under defendant's instruction covering last-chance doctrine. In absence of request for proper instruction court is not obligated to give one. Doty v. Life Ins. Co., 16 S.W. (2d) 712; Yuronis v. Wells, 17 S.W. (2d) 518. (5) Defendant's Instructions 4 and 5 were not erroneous and could not, therefore, be presumed to be prejudicial. (6) The verdict was for the right party. Defendant's alleged negligence was not the proximate cause of the plaintiff's injury. Brubaker v. Elec. Light Co., 130 Mo. App. 439; Howard & Brown Realty Co. v. Berman, 245 S.W. 606; Battles v. United Rys. Co., 178 Mo. App. 596; King v. Ry., 211 Mo. 1; Schmidt v. Transit Co., 140 Mo. App. 182; Kennedy v. Quarry & Construction Co., 291 S.W. 475.

FRANK, J.

Action by appellant, plaintiff below, to recover damages for alleged personal injuries. Verdict and judgment for defendant, and plaintiff appealed.

Plaintiff's injuries were caused by a collision between a motorcycle which he was riding and an automobile truck driven by defendant. The collision occurred at the intersection of Easton and Kienlen Avenues in the city of Wellston. Easton Avenue runs east and west, is fifty feet wide from curb to curb, and has a double line of street car tracks in the center thereof. Kienlen Avenue is about thirty feet wide, runs north and south, and intersects but does not extend south of Easton Avenue.

The evidence favorable to plaintiff tends to show that he was riding a motorcycle westward on Easton Avenue in the space between the north rail of the north car track and the north curb of Easton Avenue, at a rate of speed variously estimated from twelve to twenty-five miles per hour; that defendant was driving his motor truck eastward on Easton Avenue in the eastbound car track; that when plaintiff reached the east curb line of Kienlen Avenue, defendant's truck was at a point about twenty-five feet west of the west line of Kienlen Avenue and, at that time suddenly and without signal or warning turned his truck to the left in an attempt to enter Kienlen Avenue, and the left end of the front bumper of defendant's truck struck the rear wheel of the motorcycle. The force of the collision threw plaintiff from the motorcycle and caused the injuries for which this suit is brought. Other facts will be stated in course of the opinion.

The first complaint is that the court erred in refusing to give plaintiff's requested instruction number one. This instruction, in substance, directed a verdict for plaintiff in event the jury found that defendant turned his truck northward Negligence: across Easton Avenue and toward Kienlen Avenue Under Statute: without first giving any signal or warning of his At Common Law. intention to make such turn and that defendant's failure to give a signal before turning, if he did so fail, directly caused plaintiff's injuries, if any.

Plaintiff states his position regarding this instruction as follows:

"Under Subsection J, Section 21, of the Laws of Missouri 1921, First Extra Session, it was the duty of the defendant, before turning...