Schulz v. Smercina

• Decision Date: 07 December 1927
• Docket Number: No. 26304.,26304.
• Citation: 1 S.W.2d 113
• Parties: AUGUST J. SCHULZ, Appellant, v. FRANK J. SMERCINA.
• Court: Missouri Supreme Court

1 S.W.2d 113

AUGUST J. SCHULZ, Appellant, v. FRANK J. SMERCINA.

No. 26304.

Supreme Court of Missouri. Division No. 1.

December 7, 1927.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

REVERSED AND REMANDED.

Foristel, Mudd, Blair & Habenicht for appellant.

(1) Since the plaintiff abandoned all other charges of negligence, and went to the jury solely on the humanitarian or last-chance rule, it was error for the court to give defendant's Instructions 9 and 10, which submitted the defense of contributory negligence. Hornbuckle v. McCarty, 295 Mo. 162; Bona v. Luehrman, 243 S.W. 386; Schroeder v. Wells, 310 Mo. 642; Mazola v. Wells, 220 S.W. 412; Elders v. Mo. Pac. Ry. Co., 280 S.W. 1048; Moore v. Railroad, 283 S.W. 732. (2) It was not only the duty of the defendant's truck driver, while approaching and crossing the intersection, to look straight ahead, but he was equally bound to look "laterally" or to the side, and it was, therefore, error of the court to give plaintiff's Instructions 8, 10 and 11. Hornbuckle v. McCarty, 295 Mo. 162; Aronson v. Ricker, 185 Mo. App. 528; Holmes v. Railroad, 207 Mo. 149, 163. (3) The liability on the part of the defendant is not confined to failure to act to prevent collision with the woman after he saw her, but the defendant is liable for such failure to act after he, in the exercise of ordinary care, would have seen her, and hence there is error in this regard in plaintiff's Instructions 10, 11 and 12.

Holland, Rutledge & Lashly and Franklin Miller for respondent.

(1) Instructions 9 and 10, read and construed together, correctly state the law as applicable to the evidence, and do not call for a verdict for defendant on a mere finding that plaintiff's wife was guilty of contributory negligence, in conflict with plaintiff's Instruction 1 submitting the case on the humanitarian doctrine alone. Instructions must be read as a whole and construed together, and error cannot be predicated on segregated parts. Bales v. Hendrickson, 290 S.W. 641; Lowry v. Insurance Co., 272 S.W. 81; Feary v. O'Neill, 149 Mo. 467; Copeland v. Wabash Railroad Co., 175 Mo. 676. (2) Instructions 8, 10 and 11, read and construed together, correctly state the law, and do not relieve defendant's driver of his legal duty to keep a lookout laterally as well as straight ahead, as far as such lateral lookout was an element of his duty under plaintiff Instruction 1. (3) Instructions 10, 11 and 12, read and construed together, correctly state the law and impose on defendant's driver the duty to act if in the exercise of ordinary care he would have seen plaintiff's wife (as well as after he actually saw her) in a position of imminent peril, under plaintiff's Instruction 1.

GRAVES, P.J.

Plaintiff sues for the alleged wrongful and negligent killing of his wife by the driver of a truck belonging to defendant. It was admitted that the driver of the truck was the employee of defendant and was, at the time, about the defendant's business. It was a delivery truck, and the driver of the truck and a boy were then delivering packages for defendant to defendant's customers, from defendant's store. So if the driver was negligent the defendant is liable. Upon a trial before a jury the defendant had a verdict in his favor, and from this judgment entered upon such verdict the plaintiff has appealed. Learned counsel for the defendant makes no objection to that part of appellant's statement of the case relative to the pleadings, so we adopt it as follows:

"The petition in the case purports to be an action for damages sustained by the plaintiff, as the husband of Anna Schulz, who was struck, knocked down, run over and killed by the defendant's truck at the intersection of Kingshighway and Cote Brilliante Avenue in the city of St. Louis on the 24th day of December, 1923, alleged to have resulted from the negligence and carelessness of the defendant, through his servant and agent, in the management of the defendant's truck. The allegations of negligence charged against the defendant, as resulting in the death of plaintiff's wife, were the following:

"1. Excessive, unreasonable and dangerous rate of speed under the circumstances, and so as to endanger the life and limb of persons upon the street at said place.

"2. Negligent failure to sound or give any signal or warning of the approach and movement of defendant's truck.

"3. Negligent failure to have the truck under such control that it could be readily and reasonably stopped upon the appearance of danger.

"4. Negligent failure to stop the automobile `when, by the exercise of ordinary care,' it would and could have been done.

"5. Negligent failure to keep a lookout, either ahead or laterally.

"6. Negligently and carelessly swerving the truck so as to cause it to collide with the plaintiff's wife.

"7. That the defendant's agent in charge of the truck saw, or by the exercise of ordinary care would have seen, plaintiff's said wife in a situation of imminent peril of being collided with and struck and injured by said automobile, and oblivious thereof, in time thereafter, by the exercise of ordinary care, to have stopped said automobile, or slackened the speed thereof, or swerved the same, or given warning of its approach and movement, so as to have avoided collision and injury to plaintiff's wife, and negligently failed to take any of these precautions.

"8. Driving the automobile in excess of a speed of ten miles per hour in violation of an ordinance.

"9. Negligent failure to give warning, as provided by the ordinance.

"10. Negligent failure to run the truck as near as practicable to the right-hand side of the street, as provided by ordinance.

"The answer was a general denial, together with an affirmative defense of contributory negligence on the part of plaintiff's wife approximately contributing to her own death.

"There was a denial of all the allegations of new matter in the answer."

The defendant's theory of the case was that deceased suddenly came from behind another passing car immediately in front of the truck, and such is the impression left by some evidence in his behalf.

For the plaintiff the case was submitted to the jury upon the humanitarian doctrine only. This is number 7 of the grounds set out above. In so doing, all other alleged grounds of negligence were abandoned by plaintiff in the submission of the case.

We stated above that learned counsel for defendant made no objection to appellant's statement of the case so far as the pleadings are concerned. To that we will now add that he makes no objections to appellant's statement of the case, except as to the evidence, concerning which counsel for respondent says:

"We cannot adopt appellant's statement of facts in its entirety. On the whole, it fairly states the fact as found in appellant's printed abstract of the record; but we find that several important phases of the evidence are either overlooked or unduly minimized in counsel's statement. We will endeavor to clear up these points as briefly as possible."

This being the only objection to appellant's statement of the case, we are at liberty to further borrow from it. Appellant sets out in full his instruction on the humanitarian doctrine, and then proceeds:

"The defendant asked, and the court gave, instruction numbered 4, directing the jury to disregard the charge of excessive speed, and No. 5, directing a like disregard of negligent failure to swerve defendant's automobile, and No. 6, directing the jury to disregard the charge of operating a car in excess of ten miles per hour, prescribed by the ordinance, and further gave instructions numbered 8, 9, 10, 11 and 12, which, for convenience, we set out in full here:

"`8. The court instructs the jury that plaintiff alleges in his petition that the death of Anna Schultz was directly due to negligence on the part of the defendant's chauffeur, in that he failed to keep a lookout laterally, when he knew, or by the exercise of ordinary care would have known, that by so doing he would have discovered said Anna Schultz in time to have avoided the collision.

"`In reference to said charge, the court instructs the jury that under the instructions of the court, said charge is now withdrawn, and the jury, in their deliberations, will ignore the same.

"`9. The court instructs the jury that it was the duty of Anna Schultz, while crossing the roadway mentioned in the evidence, to exercise ordinary care to look to ascertain whether any vehicle was approaching her and in dangerous proximity. The court instructs the jury that if you believe and find from the evidence that Anna Schultz, while crossing said roadway, failed to exercise such ordinary care and that had she done so she would have seen defendant's truck approaching her and in dangerous proximity in time, by the exercise of ordinary care, to have avoided being struck by said automobile and failed to do so then and in that case Anna Schultz was guilty of negligence that directly contributed to her death.

"`10. The court instructs the jury that if, under the evidence in this case and the instructions of the court, you find that Anna Schultz was guilty of contributory negligence and you further find and believe from the evidence that the defendant's chauffeur, as he proceeded northwardly over the intersection of Cote Brilliante and Kingshighway, was exercising ordinary care to look ahead for pedestrians, and that defendant's chauffeur, after he saw Anna Schultz, exercised ordinary care to extricate her from the hazard to which she had negligently exposed herself, that is, exercised ordinary care to prevent defendant's truck from striking her, then and in that case the plaintiff is not entitled to recover, and you will find your verdict for the defendant.

"`11. The court instructs the jury that plaintiff is not entitled to recover in this case merely because Anna Schultz was struck by the automobile of defendant mentioned in...