Schmitt v. American Press

• Citation: 42 S.W.2d 969
• Decision Date: 03 November 1931
• Docket Number: No. 21477.,21477.
• Parties: SCHMITT v. AMERICAN PRESS et al.
• Court: Court of Appeal of Missouri (US)

42 S.W.2d 969

SCHMITT v. AMERICAN PRESS et al.

No. 21477.

St. Louis Court of Appeals. Missouri.

November 3, 1931.

Rehearing Denied November 17, 1931.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Tillie Schmitt against the American Press, a corporation, and another. From an order granting plaintiff a new trial after verdict in favor of defendants, the named defendant appeals.

Order affirmed, and cause remanded.

Buder & Buder and G. A. Buder, Jr., all of St. Louis, for appellant.

John Neu, Jr., and Earl M. Pirkey, both of St. Louis, for respondent.

BENNICK, C.

This is an action brought by plaintiff to recover damages for personal injuries sustained by her on March 21, 1927, when she was struck by an automobile at or near the intersection of Grand boulevard and Gravois avenue, in the city of St. Louis. The defendants were Albert A. Fletcher, the driver of the automobile, which was a delivery truck, and his employer, the American Press, a corporation, the publisher of the St. Louis Times, a daily newspaper. Upon a trial of the issues to a jury, a verdict was returned in favor of both defendants, but thereafter plaintiff's motion for a new trial was sustained by the court upon the ground of error in the giving of a certain instruction, and, from the order, defendant the American Press has alone appealed.

Of the issues tendered by the petition, the case was submitted by plaintiff upon negligence under the humanitarian doctrine and for failure to warn.

The answer filed by defendant Fletcher was a general denial, while that of appellant was a general denial, coupled with special pleas to the effect that Fletcher was an independent contractor and the owner of the truck; that, at the time plaintiff was struck, Fletcher was not rendering or performing any service for appellant, but was engaged in his own personal enterprise and undertaking; and that plaintiff's injuries were due to her own carelessness and negligence directly contributing thereto, in that she walked or ran directly into the side of the truck, when she saw, or could have seen, it in sufficient time to have avoided walking or running into it.

Such new matter in appellant's answer was duly put at issue by plaintiff's reply.

Of the facts in the case, suffice it to say at this juncture of the opinion that Grand boulevard runs north and south, and is intersected by Gravois avenue, running somewhat northeast by southwest; that Grand boulevard has the usual car tracks upon it for north-bound and south-bound street cars; that plaintiff, while waiting in the safety zone at or near the southeast corner of the intersection for the purpose of transferring to a northbound Grand boulevard street car, seeing no car approaching, left the safety zone, and started over towards the east curb to purchase a morning paper; and that, when she was about midway between the safety zone and the curb, she was struck by, or came in contact with, the automobile being driven by defendant Fletcher, and was thrown to the pavement and injured.

For its first point, appellant argues that the court misconceived the law of the case in holding that error had been committed in the giving of the instruction in question, the same being instruction No. 8, requested in the first instance by appellant, and given after it had received some slight modification at the hands of the court.

This instruction, which, when viewed in conjunction with the other instructions in the case, clearly appears by its form and context to have been directed to the issue based upon the humanitarian doctrine, informed the jury that, if they should find and believe from the evidence that plaintiff suddenly walked or ran before, in front of, or in close proximity to, the approaching automobile truck, at a time so shortly before the accident that the driver of the truck did not have reasonable time in which to act to avoid striking plaintiff, then she could not recover, and the verdict should be returned in favor of the defendants.

In the light of the controlling decisions, we think there was nothing for the trial court to do but to hold, as it did, that the above instruction was erroneous. By the terms of the instruction, the duty of the driver of the truck to act to avoid striking plaintiff did not arise until after she came before, in front of, or in close proximity to, the truck, whereas it was his duty to act as soon as plaintiff entered the danger zone; that is, as soon as it was, or should have been, reasonably apparent to him from plaintiff's movements that she intended to cross the street ahead of the truck, even though it might not be said that she was then before, in front of, or in close proximity to, it. In other words, this instruction placed entirely too narrow limits upon the danger zone, or at least it was readily susceptible to that construction; it did not require a negative finding by the jury upon all the omissions or acts of negligence hypothesized in plaintiff's instruction upon the humanitarian doctrine; and it tended to be confusing and misleading, as well as argumentative in character, rather than to furnish the jury enlightenment upon the true rule of law applicable to the facts of the case. Shumate v. Wells, 320 Mo. 536, 9 S.W.(2d) 632; Causey v. Wittig, 321 Mo. 358, 11 S.W.(2d) 11; Bunyan v. Citizens' Ry. Co., 127 Mo. 12, 29 S. W. 842; Jageles v. Berberich (Mo. App.) 20 S.W.(2d) 577; Good Roads Co. v. Kansas City Rys. Co. (Mo. App.) 217 S. W. 858.

But, of course, it is true, as appellant argues, that, even though the above instruction was indeed erroneous in the respect pointed out, the giving of it was nevertheless no ground for the granting of a new trial, unless it may further be made to appear that it was prejudicial to plaintiff's rights. Johnson Grain Co. v. Chicago, B. & Q. R. Co., 177 Mo. App. 194, 164 S. W. 182; Hess v. United Rys. Co., 127 Mo. App. 304, 105 S. W. 277. As to this, appellant has two contentions; the first being that plaintiff made no case for submission under the humanitarian doctrine, and that consequently the error in the instruction upon that issue in the case was harmless; and the second that, even though the sufficiency of the proof of defendant Fletcher's negligence be conceded, still the evidence established the fact, without any conflict, that Fletcher was not acting within the scope of his employment by appellant at the time the accident occurred, and therefore no liability for his acts or omissions could be entailed upon appellant, who must answer, if at all, solely by virtue of the doctrine of respondeat superior.

Considering these matters in their order, which brings us first to the determination of whether plaintiff made a prima facie case of negligence under the humanitarian doctrine, we are mindful that, before such issue may be said to have presented a jury question, it was necessary for there to be evidence within the limits of the whole record to show that plaintiff was in a perilous position, of which defendant Fletcher had actual or constructive notice; that he had the present ability, with the means at his disposal, to have averted the injury to plaintiff, without injury to himself or others; that he failed to exercise due care to do so; and that plaintiff was injured as a direct result of such failure. Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482; Wilson v. Wells, 321 Mo. 929, 13 S.W.(2d) 541; Allen v....