Sanford v. Gideon-Anderson Co.

• Citation: 31 S.W.2d 580
• Decision Date: 12 September 1930
• Docket Number: No. 4799.,4799.
• Parties: SANFORD v. GIDEON-ANDERSON CO.
• Court: Court of Appeal of Missouri (US)

31 S.W.2d 580

SANFORD v. GIDEON-ANDERSON CO.

No. 4799.

Springfield Court of Appeals. Missouri.

September 12, 1930.

Rehearing Denied October 21, 1930.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

"Not to be officially published."

Action by Ethel Sanford against the Gideon-Anderson Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Henson & Woody, of Poplar Bluff, and Orville Zimmerman, of Kennett, for appellant.

Langdon R. Jones, of Kennett, and Oscar V. Seed, of Campbell, for respondent.

COX, P. J.

Action for damages for the death of plaintiff's husband alleged to have been caused by the negligence of a servant of defendant. Plaintiff recovered, and defendant appealed.

The servant of defendant was driving a truck along a public highway and the husband of plaintiff, Jesse Sanford, was permitted by the driver of the truck to ride thereon. Sanford stood on the running board of the truck on the right-hand side and as the driver of the truck drove it along the highway at a rapid rate of speed, the truck skidded and zigzagged across the road, then went into a ditch at the side of the road and turned over. Sanford was thrown off and killed, and it is alleged that the negligence of the driver of the truck was responsible for the truck going into the ditch resulting in the death of Sanford.

The allegation of negligence as far as it is necessary to recite here is, after alleging that Sanford rode on the automobile of defendant and that he was hurled therefrom and killed, it is further alleged, "that the death of Jesse Sanford at the time and place aforesaid was directly caused by the wrongful acts and negligence and unskillfulness of defendant in operating, driving, managing, and running the said automobile truck aforesaid." That the wrongful acts of negligence and unskillfulness of defendant which directly caused the death of Jesse Sanford, deceased, are as follows: "After Jesse Sanford had boarded said truck, drive, run, operate and manage said automobile at a high and dangerous rate of speed and in an unlawful, reckless, negligent and unskillful manner so as to place said Jesse Sanford in a perilous situation, which perilous position was known or by the exercise of ordinary care could have been known to said chauffeur. * * * That as a direct result of these unlawful negligent acts mentioned herein Jesse Sanford was killed."

It is contended that the petition charges primary negligence only and that the case was submitted to the jury under the humanitarian rule and that was error because, to authorize a recovery under the humanitarian rule, facts must be pleaded and proven which will bring the case within that rule. The legal proposition asserted as to the necessity of pleading and proving facts necessary to a recovery under the humanitarian rule is correct. We agree with appellant that the allegations of this petition charged primary negligence, only. The allegations that Sanford was placed in a perilous position by the manner in which the chauffeur drove the truck, and that the chauffeur knew or by the exercise of ordinary care could have known that deceased was in a perilous position, merely emphasizes the charge of negligent driving by the chauffeur, but it does not appear to us as charging facts to make a case under the humanitarian rule, There is no allegation that the chauffeur, after discovering or after he should have discovered the peril of Sanford, could, by the exercise of ordinary care, have prevented the accident. The whole petition taken together charges that the chauffeur knew that the deceased was in such a position on the truck that the manner in which the truck was being driven made his position perilous and resulted in his being thrown off and killed. The question of the case being submitted under the humanitarian rule will be considered later.

It is strongly urged that the deceased was guilty of contributory negligence as a matter of law in riding upon the running board of the truck and for that reason defendant's demurrer to the evidence should have been sustained. In passing upon a demurrer to the evidence we must consider the evidence most favorable to plaintiff, only. Defendant's evidence is to be disregarded unless it strengthens plaintiff's case. The evidence most favorable to plaintiff shows that defendant's servant was driving a truck along the road and that deceased was permitted to board the truck. Deceased stood on the running board on the right-hand side and held on with his hands. The road was graveled and in good condition but had some loose gravel on it. Just prior to the accident the truck was traveling 45 miles per hour. Witnesses varied as to the speed of the car, but some placed it at 45 miles per hour, and the chauffeur testified that 45 miles per hour was as fast as the truck could be driven. The chauffeur had been over the road frequently and was familiar with its condition. The right wheels of the truck ran out on the shoulder for about fifty feet, then the truck turned and whipped suddenly to the east and zigzagged back and forth across the road a short distance, then went into a ditch four or five feet deep at the side of the road, turned completely over and stopped, standing on its...