Robinson v. O'Shanzky

• Decision Date: 06 October 1936
• Docket Number: No. 23942.,23942.
• Citation: 96 S.W.2d 895
• Parties: ROBINSON v. O'SHANZKY.
• Court: Missouri Court of Appeals

96 S.W.2d 895

ROBINSON v. O'SHANZKY.

No. 23942.

St. Louis Court of Appeals. Missouri.

October 6, 1936.

As Modified on Denial of Rehearing October 20, 1936.

Appeal from St. Louis Circuit Court, James M. Douglas, Judge.

"Not to be published in State Reports."

Action by Mary Jane Robinson, a minor, by her next friend, William A. Robinson, against William O'Shanzky. From judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

Max Sigoloff, of St. Louis, for appellant.

Watts & Gentry, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff on May 10, 1934, when she was struck and run over by defendant's automobile. From a verdict and judgment for plaintiff, and against defendant, in the sum of $4,500, defendant's appeal to this court has been perfected in the usual course.

The accident occurred on Hamilton avenue, at a point opposite its intersection with Hamilton terrace, in the city of St. Louis. Hamilton terrace is a short street running east and west and terminating at its intersection on the west with Hamilton avenue, which runs north and south. One short block south of Hamilton terrace, or a distance of about 350 feet, is Page boulevard, which likewise runs east and west, and intersects with Hamilton avenue at right angles.

At the time in question defendant was the operator of a service car along the Page-Wellston route, which, on the return trip from downtown St. Louis, took him westward on Page boulevard to its intersection with Hamilton avenue, and thence north on the latter to Easton avenue. His car was a Pierce-Arrow seven-passenger sedan, with the brakes and all other equipment in good working order.

Viewing the evidence most favorably to support plaintiff's right to recover, it appears that, after defendant had turned north out of Page boulevard into Hamilton avenue, plaintiff, a child about four years of age, stepped down from the east curb of the street at a point some 25 feet in front of defendant's car. She was looking in the opposite direction from that in which defendant was coming, and was walking very slowly in a course which would have taken her to the sidewalk alongside Hamilton terrace on the opposite side of the street.

After turning into Hamilton avenue, with the right side of his car some 5 or 6 feet out from the east curb, defendant slowed down to a speed of not more than 5 miles an hour, and turned to inquire of one of his passengers sitting in the rear if he wished to leave the car at its stopping point at Hamilton terrace. It was because of this position that he did not see the child in front of him, and in fact he was not apprised of its presence in the street until one of the passengers, who had observed plaintiff leave the curb, called out to him that a child had gone in front of his machine. He immediately applied his brakes and stopped within the space of a foot or so, but not until the child had been struck and knocked down and the right front wheel had passed over its body.

Defendant admitted that after turning into Hamilton avenue he did not swerve either to the right or left before the accident, all due, of course, to the fact that he did not know that the accident was impending until momentarily before the collision, when one of his passengers called out the warning to him.

The case was submitted solely for negligence under the humanitarian doctrine, based upon the idea that, after plaintiff had come into a position of imminent and discoverable peril, defendant could have either stopped his automobile or have swerved the same to the west so as to have avoided striking plaintiff.

Defendant's answer was a general denial, and so the issues were made up for the jury's consideration, resulting in the verdict and judgment for plaintiff, and against defendant, as we have already indicated.

For his first point defendant argues that the petition wholly failed to state a cause of action for negligence under the humanitarian doctrine, in that in charging the negligence relied upon it failed to include an averment that defendant, after becoming chargeable with knowledge of plaintiff's impending peril, had the present ability, with the means at hand, to have averted the impending injury to plaintiff without injury to himself or the others in his automobile. Defendant points out that such an allegation constitutes one of the essential elements of a case under the humanitarian doctrine (Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482), and he therefore insists that for want of it in the petition now under inquiry the same must be held vulnerable to the attack which he is presently making upon it.

Conceding that the petition was not so drawn as to include the specific allegation in question, it does not follow on that account that no cause of action for negligence under the humanitarian doctrine was stated. The petition did allege the perilous situation of plaintiff and defendant's actual or constructive knowledge of it, all in time that defendant could thereafter have avoided striking and injuring plaintiff. Clearly to have charged that defendant "could" have averted the accident necessarily implied that he had the means at hand with which to have done so, and the petition should therefore not be regarded as fatally defective for the absence of an explicit allegation of a fact which was otherwise necessarily implied.

So far as concerns the absence of an allegation in the petition that the accident might have been averted by defendant without injury to himself or the others in his automobile and without exposing himself or them to an unreasonable hazard, we think that such an averment was not in any wise vital or essential in this particular case, inasmuch as neither the petition nor the evidence disclosed an emergency or situation threatening and endangering the safety of defendant and his passengers if appropriate steps were taken to stop or swerve the automobile so as to avoid striking plaintiff. Even though not pleaded with all the regard for detail that an abundance of caution might well have dictated, the petition did nevertheless plainly invoke the humanitarian doctrine, and under all the facts and circumstances of the case there is no room for the present insistence that it wholly failed to state a cause of action against defendant. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.(2d) 9; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.(2d) 373.

Defendant next makes the point that the court should have directed a verdict in his favor at the close of the whole case upon the theory that there had been no evidence that defendant had seen, or could have seen, plaintiff in a position of imminent peril and danger in time to have avoided injuring her. As to this, we think there was an abundance of evidence to have made a very clear case for the jury.

Of course, it was an undisputed fact that defendant did not see plaintiff in the street before striking her, but, granting this to be true, it does not militate in the least against the application of the humanitarian doctrine to the case. As defendant drove his automobile along his route, it was his duty to be on the lookout for persons entering upon the street ahead of his automobile, and for the purposes of this case he is therefore to be charged with knowledge of what he could have seen had he in fact been looking ahead at the time plaintiff's position of peril arose. In other words, where a duty rests upon the defendant to keep a lookout, the humanitarian doctrine applies no less to discoverable than to discovered peril, and permits the propriety of the defendant's conduct to be gauged and determined in the light of the situation that would have obtained if the duty of keeping a lookout had been performed. Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 88 S.W.(2d) 368.

According plaintiff the benefit of the most favorable view of the evidence, as we must on demurrer thereto, her peril must be said to have become imminent when defendant's automobile was still as much as 25 feet away from her. There were no parked cars as well as no traffic along the street to have prevented defendant from swerving to the west if such a course...