Reiling v. Russell

• Citation: 153 S.W.2d 6,348 Mo. 279
• Decision Date: 18 April 1941
• Docket Number: 37433
• Parties: A. L. Reiling, Jr., v. Marian L. Russell and Barney M. Russell, Appellants
• Court: United States State Supreme Court of Missouri

153 S.W.2d 6

348 Mo. 279

A. L. Reiling, Jr., v. Marian L. Russell and Barney M. Russell, Appellants

No. 37433

Supreme Court of Missouri

April 18, 1941

Rehearing Denied June 12, 1941. Motion to Transfer to Banc Overruled July 25, 1941.

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.

Reversed and remanded.

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

The court erred in giving Instruction 1 over the objections and exceptions of the defendants because said instruction which is a humanitarian instruction erroneously has incorporated in it primary and antecedent negligence and in addition thereto said instruction extends the application of the last chance doctrine beyond its legal limits because it permits a recovery under the humanitarian theory while the plaintiff was in and approaching a position of imminent peril. Sec 7775, R. S. 1929; State ex rel. v. Bland, 15 S.W.2d 798, 322 Mo. 565; Carney v. Railroad Co., 23 S.W.2d 993, 323 Mo. 470; Alexander v. Ry. Co., 38 S.W.2d 1023, 327 Mo. 1012; Gray v. Columbia Terminals Co., 52 S.W.2d 809, 331 Mo. 73; Freeman v. Berberich, 60 S.W.2d 393, 332 Mo. 831; Larey v. Railroad, 64 S.W.2d 681, 333 Mo. 949; Mayfield v. Ry. Co., 85 S.W.2d 116, 337 Mo. 79; State ex rel. Grisham v. Allen, 124 S.W.2d 1080, 344 Mo. 66; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; Perkins v. Terminal Ry. Assn., 102 S.W.2d 915, 340 Mo. 868; Buehler v. Festus Mercantile Co., 119 S.W.2d 961, 343 Mo. 139; State ex rel. Snider v. Shain, 137 S.W.2d 527; Kick v. Franklin, 137 S.W.2d 512; Hilton v. Terminal Railroad Assn., 137 S.W.2d 520; Smithers v. Barker, 111 S.W.2d 47.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondent.

(1) The court committed no error in giving Instruction 1 on behalf of plaintiff. (a) Said instruction does not erroneously inject antecedent negligence as appellants claim. (b) Said instruction does not permit the jury to consider antecedent negligence. Rishel v. Kansas City Pub. Serv. Co., 129 S.W.2d 851; Corbett v. Term. Ry. Assn. of St. Louis, 336 Mo. 972, 82 S.W.2d 97; Hoelzel v. C., R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Drake v. Kansas City Pub. Serv. Co., 333 Mo. 520, 63 S.W.2d 75; Bales v. Kansas City Pub. Serv. Co., 328 Mo. 171, 40 S.W.2d 665; Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105; Jordan v. St. Joseph Ry., L., H. & P. Co., 335 Mo. 319, 73 S.W.2d 205; Cramer v. Parker, 100 S.W.2d 640; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373. (c) The same alleged error appears in appellants' Instruction C. It is, therefore, at most, common or invited error, of which appellants should not be heard to complain. Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Evans v. Atchison, T. & S. F. Ry. Co., 345 Mo. 147, 131 S.W.2d 604; Carle v. Akin, 87 S.W.2d 406. (2) Said instruction does not extend the application of the humanitarian doctrine beyond its legal limits. (a) Said instruction does not extend the zone of peril beyond its legal limits. Perkins v. Term. Ry. Assn., 340 Mo. 868, 102 S.W.2d 915; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 555; Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Schneider v. Term. Ry. Assn. of St. Louis, 341 Mo. 430, 107 S.W.2d 787; Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105; Perkins v. Term. Ry. Assn. of St. Louis, 340 Mo. 868, 102 S.W.2d 915; Villinger v. Nighthawk Freight Service, Inc., 104 S.W.2d 740; State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420; Brown v. Callicotte, 73 S.W.2d 190. (b) The same alleged error appears in appellants' Instruction C. Appellants are, therefore, in no position to complain of plaintiff's Instruction 1. Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; White v. Hasburgh, 124 S.W.2d 560.

OPINION

Clark, J.

On a former appeal in this case (345 Mo. 517, 134 S.W.2d 33), we reversed a judgment in favor of defendants and remanded the case for a new trial. Upon a re-trial plaintiff procured a verdict and judgment for $ 10,000 and defendants have appealed.

The evidence in the instant case is substantially the same as that fully set out in our former opinion. McGee Street in Kansas City extends north and south and is crossed by Twentieth Street extending east and west. Plaintiff, a pedestrian, while crossing McGee Street, and when he had reached a point about the center thereof and about fifty feet south of Twentieth Street, was struck and injured by defendants' automobile being driven by them south along McGee Street.

Although the petition charged defendants with both primary negligence and negligence under the humanitarian doctrine, the case was submitted to the jury solely upon the latter charge.

On this appeal the only assignment of error is that instruction number one given at plaintiff's request includes primary or antecedent negligence as well as negligence under the humanitarian rule and also extends the application of the last chance doctrine beyond its legal limits.

The instruction is as follows:

"The Court instructs the jury that under the laws of this state, it is the duty of persons operating automobiles on any public highway in this state, to exercise the highest degree of care by which is meant that degree of care which a very careful and prudent person would use under the same or similar circumstances, and the failure to exercise the highest degree of care would constitute negligence.

"You are further instructed that if you find and believe from all the evidence in this case that on the 12th day of September, 1936, at about the hour of 5:15 P. M., plaintiff was proceeding across McGee Street Trafficway, from the west to the east side thereof, and at a point approximately fifty feet south of the south curb line of 20th Street, and was approaching the center line of said McGee Street Trafficway, if you so find, and that at that time the automobile of defendant Barney M. Russell, with the said Barney M. Russell therein, was being driven by his wife, defendant Marian L. Russell, in a southerly direction on said McGee Street Trafficway and approaching the point where plaintiff was proceeding, if so, and that plaintiff was then and there in a position of imminent peril and danger of being struck and injured by said approaching automobile, if so, and if you further find and believe from all the evidence in this case that defendant Marian L. Russell saw, or by the exercise of the highest degree of care, could have seen plaintiff in a position of imminent peril and danger of being struck by said approaching automobile and that plaintiff was oblivious of the approach of said automobile, if so; and in time so that defendant Marian L. Russell could thereafter, by the exercise of the highest degree of care and by the use of means and appliances at hand, with safety to said automobile, the occupants therein, and others, if so, have sufficiently slackened the speed of said automobile, if so, and have swerved to the right, if so, and have stopped said automobile, if so, and have sounded a timely warning of the approach of said automobile, if so, and could thus and thereby have avoided running said automobile into and injuring plaintiff, if so; and that defendant Marian L. Russell negligently failed so to do, if you so find; and that as a direct and proximate result of such negligent acts, if you find such acts were negligent, the said automobile, so driven by defendant Marian L. Russell, did run into and collide with plaintiff, if so, and that plaintiff was thereby injured, if you so find; and, if you further find and believe from the evidence that at the time and place in question defendant Marian L. Russell was driving and operating the automobile of her husband, defendant Barney M. Russell, as the duly authorized agent and servant of said defendant Barney M. Russell, if so, then your verdict should be for the plaintiff and again both defendants."

We have often held that it is prejudicial error to inject primary negligence into an instruction submitting humanitarian negligence. [State ex rel. v. Bland, 322 Mo. 565, 15 S.W.2d 798; Mayfield v. Railway, 337 Mo. 79, 85 S.W.2d 116, and cases cited and reviewed therein.]

Appellants say that the first paragraph of plaintiff's instruction number one does inject primary negligence in the manner condemned by the Mayfield case and other cases; that said paragraph authorized the jury to find a verdict for plaintiff if they believed defendants failed to exercise the highest degree of care as to rate of speed, or as to any other matter constituting primary negligence.

Respondent says that said paragraph is merely a general and correct statement of an abstract principle of law; that it is a mere definition of the degree of care owed by the defendants; and, if too broad in its terms, it is cured by the remaining part of the instruction. Further, that appellants cannot complain, because the same alleged error appears in their instruction "C."

The principal reason why it is prejudicial to inject primary negligence into an instruction submitting the humanitarian theory is that it precludes the defense of contributory negligence, which defense is available against primary negligence, but not against negligence under the humanitarian theory. There is no doubt that the intention was to submit the instant case to the jury solely on negligence under the humanitarian doctrine. Plaintiff concedes this. The trouble with the first paragraph of plaintiff's instruction number one is that it did not limit the jury to a consideration of the conduct of defendants after plaintiff was...