Rogers v. Crown Coach Co.

• Decision Date: 20 February 1934
• Docket Number: No. 5276.,5276.
• Citation: 68 S.W.2d 729
• Parties: ROGERS v. CROWN COACH CO.
• Court: Missouri Court of Appeals

68 S.W.2d 729

ROGERS v. CROWN COACH CO.

No. 5276.

Springfield Court of Appeals. Missouri.

February 20, 1934.

Appeal from Circuit Court, Jasper County; R. H. Davis, Judge.

"Not to be published in State Reports."

Action by C. B. Rogers against the Crown Coach Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for new trial.

Ray E. Watson and Thomas J. Roney, both of Webb City, for appellant.

A. E. Spencer and A. E. Spencer, Jr., both of Joplin, for respondent.

BAILEY, Judge.

This is a suit to receive damages for personal injuries resulting from an automobile collision which occurred February 19, 1932, on U. S. Highway 71, about seven miles south of Harrisonville, Mo. On trial to a jury, the verdict and judgment was for plaintiff in the sum of $500, from which judgment defendant has appealed.

The petition, after alleging the incorporation of defendant and that he (plaintiff) was driving an automobile on U. S. Highway 71 at a point about seven miles south of Harrisonville, Mo., continues as follows:

"That the said motor car was being driven by him south on highway No. 71, a highway running north and south through the State of Missouri, at a point approximately nine miles south of Harrisonville, Missouri, on February 19, 1932, on the right or west side of said highway at a reasonable rate of speed when same was met by a bus of defendant then being driven north on the east side of said highway by its servant and agent. That the laws of the State of Missouri, and the rules and regulations of the Public Service Commission of Missouri require such motor busses to be operated in a careful and prudent manner and that the highest degree of care shall be exercised by the operators thereof for the safety and protection of others upon the public highways of this state.

"That as said motor car which plaintiff was driving, was approached by the bus of defendant the latter was being negligently driven at a high and dangerous rate of speed and when said bus was approximately three hundred feet distant from the motor car which plaintiff was driving said bus was negligently turned and driven across the black center line of said pavement to the west so that same came upon and across the west or plaintiff's right hand half of said highway, that the driver of the bus negligently failed to give in advance any signal or intimation to make such turn.

"That there is a bus station of defendant located on the west side of said highway at said point and that the busses of defendant stop at same on trips over highway No. 71. That plaintiff then turned said motor car to the east or left hand side of said highway to pass said bus and avoid being struck thereby. That when said motor car and bus were close to each other the agent and servant of defendant, who was driving and operating said bus, and was in charge thereof, suddenly, unexpectedly, and without warning, sign or notice, turned and drove said bus back to the east or right hand side of said highway in front of and in the direct path of the approaching motor car plaintiff was driving. That the servant and agent of defendant saw, or by exercise of the highest degree of care could have seen the motor car of the plaintiff and its position upon said highway but negligently, carelessly and recklessly drove said bus back to the east side of the highway and directly in front of plaintiff's car then on the highway in the position thereon in which it had been forced by said turn of the bus to and upon the west side of such highway, and so close to plaintiff's car that the driver of the latter could not avoid the collision of his car and the bus either by stopping or turning, and by such negligent acts of the driver of the bus the two vehicles were caused to collide. That at said time the plaintiff's car and the position and predicament into which it had been forced by the said action of the bus were in full view of the driver of the bus and were known to him or could have been seen and known by the exercise of ordinary care on his part.

"That the plaintiff was severely injured," etc.

Defendant filed a general demurrer to this petition on the ground that it failed to state facts sufficient to constitute a cause of action. In the brief, however, the point is made, not that the petition failed to state any cause of action, but that it failed to state a cause of action under the humanitarian doctrine, which was the sole theory upon which the cause was submitted to the jury. Of course, if the petition stated a cause of action based on primary negligence, the trial court could not be convicted of error in overruling the demurrer at the time, even though no cause of action was stated under the so-called humanitarian doctrine. The question, therefore, as we see it, is not whether or not the trial court erred in overruling the demurrer to the petition, upon which defendant did not stand, but whether or not any cause of action was stated that would authorize a recovery under the humanitarian theory. The petition stated a cause of action and the demurrer was properly overruled. However, the question as to whether the petition was sufficient to invoke the application of the last chance or humanitarian doctrine, under which the case was submitted, is before this court, since it was not waived by defendant and was submitted in plaintiff's principal instruction. Castle v. Wilson (Mo. App.) 183 S. W. 1106.

The point is raised with reference to the giving of plaintiff's instructions submitting to the jury the theory of liability under the humanitarian doctrine. It is conceded that in order to constitute a cause of action under that doctrine certain conditions must ordinarily be present which are set forth in Banks v. Morris & Co., 302 Mo. 254, loc....