Pitcher v. Schoch

• Decision Date: 04 May 1940
• Docket Number: 36003
• Parties: Fern Pitcher v. Billy Schoch, Appellant
• Court: Missouri Supreme Court

139 S.W.2d 463

345 Mo. 1184

Fern Pitcher v. Billy Schoch, Appellant

No. 36003

Supreme Court of Missouri

May 4, 1940

Appeal from Carroll Circuit Court; Hon. James S. Rooney Judge.

Affirmed on remittitur of $ 5000.

Vane Thurlo, Cowgill & Popham and Guy Green, Jr. for appellant.

(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence at the close of all the evidence in the case because: (a) The evidence was insufficient to sustain a finding for plaintiff under the humanitarian rule because there was no evidence that defendant had time to act after he could have discovered plaintiff in imminent peril. Moffat v. Link, 229 S.W. 836; Bibb v. Grady, 231 S.W. 1010; Banks v Morris, 302 Mo. 254, 257 S.W. 482; Wilson v. Wells, 321 Mo. 929, 13 S.W.2d 541; McGowan v. Wells, 24 S.W.2d 633; Schmitt v. American Press, 42 S.W.2d 969; Christner v. C., R. I. & P. Ry. Co., 64 S.W.2d 752; Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; Epstein v. K. C. Pub. Serv. Co., 78 S.W.2d 534; McCombs v. Ellsberry, 85 S.W.2d 135; Knight v. Wabash, 85 S.W.2d 392; Karr v. Rock Island, 108 S.W.2d 44; Kick v. Franklin, 117 S.W.2d 284; Putnam v. Unionville Granite Works, 122 S.W.2d 389; Stark v. Berger, 125 S.W.2d 870; Meese v. Thompson, 129 S.W.2d 847. (b) Plaintiff was guilty of contributory negligence as a matter of law in seeing defendant's car and in walking in front of it when she knew he was coming without looking again. Russell v. Grocery Co., 288 S.W. 985; Woods v. Moore, 48 S.W.2d 202; Iman v. Freund Bread Co., 58 S.W.2d 477; Epstein v. K. C. Pub. Serv. Co., 78 S.W.2d 534; Dempsey v. Horton, 84 S.W.2d 621. (c) There was no evidence of causal connection between violation of speed ordinance and injury. Bibb v. Grady, 231 S.W. 1010; Howard and Brown v. Berman, 245 S.W. 606; Jacobsen v. Beffa, 282 S.W. 161. (2) The court erred in giving plaintiff's Instruction 3 over the objection and exception of the defendant because there was insufficient evidence to support a verdict under the humanitarian rule. McCombs v. Ellsberry, 85 S.W.2d 135; Karr v. Rock Island, 108 S.W.2d 44; Kick v. Franklin, 117 S.W.2d 284; Stark v. Berger, 125 S.W.2d 870; Meese v. Thompson, 129 S.W.2d 847. (3) The court erred in giving plaintiff's Instruction 5 over the objection and exception of defendant because there was insufficient evidence to support a last chance submission. Schmitt v. Amer. Press, 42 S.W.2d 969; Moffat v. Link, 229 S.W. 836; Bibb v. Grady, 237 S.W. 1010; Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Wilson v. Wells, 321 Mo. 929, 13 S.W.2d 541; McGowan v. Wells, 24 S.W.2d 633; Christner v. C., R. I. & P. Ry. Co., 64 S.W.2d 752; Roberts v. Consolidated Pav. & Mat. Co., 70 S.W.2d 543; Elkins v. St. L. Pub. Serv. Co., 74 S.W.2d 600; Epstein v. K. C. Pub. Serv. Co., 78 S.W.2d 534; McCombs v. Ellsberry, 85 S.W.2d 135; Knight v. Wabash, 85 S.W.2d 392; Karr v. Rock Island, 108 S.W.2d 44; Kick v. Franklin, 117 S.W.2d 284; Putnam v. Unionville Granite Works, 122 S.W.2d 389; Stark v. Berger, 125 S.W.2d 870; Meese v. Thompson, 129 S.W.2d 847. (4) The court erred in giving plaintiff's Instruction 4 over the objection and exception of the defendant because there was no causal connection between the negligence and the injury and plaintiff was guilty of contributory negligence as a matter of law. Bibb v. Grady, 231 S.W. 1010; Howard and Brown v. Berman, 245 S.W. 606; Jacobsen v. Beffa, 282 S.W. 161; Russell v. Grocery Co., 288 S.W. 985; Woods v. Moore, 48 S.W.2d 202; Iman v. Freund Bread Co., 58 S.W.2d 477; Epstein v. K. C. Pub. Serv. Co., 78 S.W.2d 534; Dempsey v. Horton, 84 S.W.2d 621. (5) The court erred in refusing to grant defendant's request to discharge the jury when plaintiff's counsel injected the issue of insurance into the case in examining witness Crispin. Hannah v. Butts, 51 S.W.2d 4; Rytersky v. O'Brine, 70 S.W.2d 538; Allen v. Wilkerson, 87 S.W.2d 1063; Whitman v. Carver, 88 S.W.2d 885; Wininger v. Bennett, 104 S.W.2d 413. (6) The court erred in permitting the witness Beams to invade the province of the jury and testify to his conclusion that a person in the center of the front seat could not see through the place cleared by the windshield wiper in a 1937 Ford. Gutridge v. Mo. Pac. Ry. Co., 7 S.W. 476; Bibb v. Grady, 231 S.W. 1010; Trowbridge v. Fleming, 269 S.W. 610; Hanke v. City, 272 S.W. 933; Wright v. Quattrochi, 49 S.W.2d 3; Howe v. Shell, 62 S.W.2d 16; Jackson v. City, 72 S.W.2d 850; Kaley v. Huntley, 88 S.W.2d 200. (7) The court erred in refusing to permit the defendant to prove that after plaintiff's injury and when her leg was apparently healing a sheet was jerked out from under her, rebreaking her left leg, which evidence bore on the question of whether plaintiff's present condition was a direct result of the injuries originally inflicted. Boggess v. Met. St. Ry. Co., 23 S.W. 159; Powers v. Kansas City, 18 S.W.2d 545; Croak v. Croak, 33 S.W.2d 998.

Hart & Joyce, H. K. West and W. A. Franken for respondent.

(1) It was not error to submit this case to the jury under the humanitarian doctrine. R. S. 1929, sec. 7775; Banks v. Morris, 302 Mo. 254, 257 S.W. 482; King v. Mo. Pacific, 263 S.W. 832; Raymen v. Galvin, 229 S.W. 750; McKinney v. Bissel, 263 S.W. 533; Steigleder v. Lonsdale, 253 S.W. 487; Reith v. Tabor, 8 S.W.2d 607; Eiseman v. Griffith, 181 Mo.App. 183, 167 S.W. 1142; Beier v. St. Louis Transit Co., 197 Mo. 231; Iman v. Bread Co., 58 S.W.2d 480; Gavin v. Forrest, 72 S.W.2d 182. (2) The court did not commit error in submitting this case to the jury on primary negligence, and plaintiff was not guilty of contributory negligence as a matter of law. Raymen v. Galvin, 229 S.W. 747; Brown v. Laundry Co., 246 S.W. 166; McCaughen v. Mo. Pac. Ry. Co., 274 S.W. 97; Strauchon v. Met. Ry. Co., 232 Mo. 587, 135 S.W. 14; Althage v. Peoples Motor Bus Co., 8 S.W.2d 924; Hodges v. Chambers, 171 Mo.App. 563, 154 S.W. 429; Meenach v. Crawford, 187 S.W. 879; Carradine v. Ford, 195 Mo.App. 700, 187 S.W. 285; Thompson v. Livery, 214 Mo. 497; Lewis v. St. Louis Independent Packing Co., 3 S.W.2d 249; Flach v. Ball, 209 Mo.App. 403, 240 S.W. 465; Decker v. Wells, 272 S.W. 1064. (3) The court did not err in refusing to grant defendant's request to discharge the jury when plaintiff's counsel inquired of witness Chrisman on re-direct examination the identity of Mr. Divilbiss who had taken a written statement of the witness to which Mr. Popham had referred on cross-examination. Lewis v. St. Louis Independent Packing Co., 3 S.W.2d 250; Jones v. Freight Transit Co., 40 S.W.2d 470. (a) The court will take judicial notice as to the distances within which an automobile can be stopped. Spoeneman v. Uhri, 332 Mo. 829, 60 S.W.2d 12. (4) The exclusion of proof as to alleged aggravation of injuries in hospital was proper. Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 617; Hughes v. Maryland Casualty Co., 76 S.W.2d 1103. (5) Testimony of witness Beams was properly admitted. Dobson v. Ry. Co., 10 S.W.2d 529; Sandry v. Hines, 226 S.W. 649; 22 C. J. 623, sec. 713. (6) Verdict was not excessive. Zumwalt v. Chicago & A. Ry. Co., 266 S.W. 717; Payne v. Davis, 298 Mo. 645, 252 S.W. 57; Lewis v. St. Louis Independent Packing Co., 3 S.W.2d 244; Skinner v. Davis, 312 Mo. 581, 280 S.W. 37; Hoelzel v. Chicago, R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Bond v. St. L.-S. F. Ry. Co., 315 Mo. 987, 288 S.W. 777; McNicholas v. Continental Baking Co., 112 S.W.2d 856; Brennecke v. Ganahl Lbr. Co., 44 S.W.2d 634; 17 C. J. 1087, sec. 397; 4 C. J. 869, sec. 2846.

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

OPINION

COOLEY

Respondent, plaintiff below, recovered judgment for $ 18,000 against appellant, defendant below, as damages for personal injuries sustained by plaintiff as a result of being struck by an automobile driven by defendant. The appeal presents questions as to submissibility of the case on both primary negligence and negligence under the humanitarian doctrine and as to certain instructions, also some questions as to rulings on evidence and a question as to excessiveness of the verdict.

The accident occurred between eleven o'clock and midnight, December 27, 1936, on a street of the City of Brookfield known as South Main Street, sometimes called Memorial Drive. For brevity and convenience we shall call it Main Street. It is a part of State Highway No. 36. At the point in question it runs approximately north and south and is divided into two traffic lanes, each paved to a width of eighteen feet with a curb on each side of each traffic lane and with a parkway designed to be ornamented with flowers and shrubbery between the two traffic lanes. The east traffic lane is designed, at least generally, for northbound traffic and the west for southbound traffic. There is a sidewalk along the east side of the east lane, next the property line, and similarly one along the west side of the west lane. Between sidewalk and curb on each side of the street there is a "terrace" or "berm" some fifteen feet wide. (We shall speak of it as "terrace.") The total width of Main Street from sidewalk to sidewalk, as we understand the record, is about ninety feet.

In this case we have to do with the east traffic lane. Plaintiff was injured while crossing that lane, about two hundred feet south of a street called Canal Street, at the intersection of which with Main Street she had alighted from an automobile and had started south on the east sidewalk of Main Street. She lived on the west side of Main Street but when she alighted from the automobile she observed a man walking south on the west sidewalk whom she did not then recognize. Thinking he might be a stranger or possibly "a tramp" she kept to the east side and went southward on the east sidewalk till she reached a point...