Prater v. Rausch.

• Decision Date: 14 June 1939
• Docket Number: No. 35784.,35784.
• Citation: 129 S.W.2d 910
• Parties: MARIE E. PRATER v. ALF C. RAUSCH, Sometimes Known as ALFRED C. RAUSCH, Appellant.
• Court: Missouri Supreme Court

129 S.W.2d 910

MARIE E. PRATER v. ALF C. RAUSCH, Sometimes Known as ALFRED C. RAUSCH, Appellant.

No. 35784.

Supreme Court of Missouri.

Division One, June 14, 1939.

Appeal from Circuit Court of St. Louis County. — Hon. John A. Witthaus, Judge.

AFFIRMED AND REMANDED.

Walter Wehrle for appellant.

(1) Plaintiff by submitting her case to the jury solely on the humanitarian doctrine abandoned all other assignments of negligence contained in the petition and therefore defendant's duty as defined in Instruction 4 did not have to include consideration of the other assignments. Northern v. Fisheries Co., 8 S.W. (2d) 982; Dietzman v. St. Louis Screw Co., 300 Mo. 196; O'Donnell v. B.O. Railroad Co., 324 Mo. 1097; Perryman v. Mo. Pac. Ry. Co., 326 Mo. 176. (2) Defendant's Instruction 4 correctly defined defendant's duty under the humanitarian doctrine, as under this doctrine defendant's duty to act commenced only at the time he saw or should have constructively seen plaintiff in a position of peril, antecedent negligence being of no consequence, the doctrine operating only under the actual facts existing at the time of discovered or discoverable peril. State ex rel. Fleming v. Bland, 15 S.W. (2d) 798; Phillips v. Henson, 30 S.W. (2d) 1065; Taylor v. Superior Oxy-Acetylene Co., 335 Mo. 379; Homan v. Mo. Pac. Ry. Co., 64 S.W. (2d) 619. (3) Defendant was entitled to have a converse instruction given to the jury correctly declaring and defining the law in connection with plaintiff's submission of the case to the jury under the humanitarian doctrine. Arnold v. Alton Railroad Co., 124 S.W. (2d) 1092; Woehler v. St. Louis, 114 S.W. (2d) 985; Womach v. St. Joseph, 168 Mo. 236; Boles v. Dunham, 208 S.W. 480. (4) The instruction was supported by the evidence.

George F. Heege for respondent.

(1) Defendant's Instruction 4 was erroneous and because of its giving, the court properly granted plaintiff a new trial. Instruction 4 did not advise the jury that the negligence, if any, of the driver could not be imputed to the plaintiff, a guest. McGrath v. Meyers, 107 S.W. (2d) 793; Dilallo v. Lynch, 101 S.W. (2d) 7. (2) The plaintiff not being the owner or driver of the machine, but a guest, could not be charged with the driver's negligence. Boyd v. Kansas City, 237 S.W. 1001; Peppers v. St. L.-S.F. Ry. Co., 295 S.W. 761. (3) Instruction 4 was erroneous because it was not a proper sole cause instruction and failed to tell the jury that contributory negligence could not be considered in determining recovery under the humanitarian rule, nor did it explain imputed negligence. McGrath v. Meyers, 107 S.W. (2d) 793.

HYDE, C.

This is an action for damages for $15,000 for personal injuries which was submitted solely upon humanitarian negligence. The jury found for defendant but the court sustained plaintiff's motion for new trial upon the ground that it erred in giving defendant's Instruction No. 4. Defendant has appealed from the order granting a new trial.

Plaintiff, according to her evidence, was riding in an automobile driven by her husband, in a southeasterly direction across Ladue Road (an east and west highway) in St. Louis County. Their automobile came south out of McKnight Road (a north and south road, which did not continue south of Ladue), angled to the southeast across Ladue toward Berkley Lane (also a north and south road) which ran south from Ladue a short distance east of where McKnight came in on the north side. Both plaintiff and her husband testified that he stopped his car on McKnight a little south of the stop sign (located about 24 feet north of the north edge of the Ladue pavement) and that they both looked both ways. Their testimony was that they could only see about 150 feet west, the distance to the top of the hill on Ladue in that direction, and that there was no vehicle in sight on the hill. Plaintiff did not see defendant's car until just before it struck their car south of the south edge of the Ladue pavement. Plaintiff's husband said that he drove across Ladue in second gear after making the stop sign stop; that as he was leaving the pavement on the south side of Ladue going into Berkley Lane, he saw defendant's car coming about thirty-five feet away; that it struck the right rear fender of his car when it was about eight feet south of the south edge of Ladue pavement; that defendant "turned his car to the right in across Berkley Lane;" that defendant "was driving fifty to fifty-five miles an hour;" and that "if he (defendant) had stayed on Ladue he would have been all right."

Defendant's evidence tended to show that the car in which plaintiff was riding came out of McKnight Road, without making a stop, at from thirty-five to forty-five miles per hour; that it never even slowed down; that there was considerable traffic at the time on Ladue; that this car missed another car, going west on Ladue by only two feet (according to its driver who testified as defendant's witness); that defendant's car was only thirty-five feet west of Berkley Lane, going thirty miles per hour, when plaintiff's husband suddenly drove on to Ladue directly in front of defendant; that defendant swerved to the right (there being another car to the left), and that "the collision took place right at the south edge of Ladue."

Defendant's...