Silliman v. Munger Laundry Co.

• Decision Date: 01 December 1931
• Docket Number: No. 29288.,29288.
• Citation: 44 S.W.2d 159
• Parties: MARIA SILLIMAN, Appellant, v. MUNGER LAUNDRY COMPANY.
• Court: Missouri Supreme Court

44 S.W.2d 159

MARIA SILLIMAN, Appellant, v. MUNGER LAUNDRY COMPANY.

No. 29288.

Supreme Court of Missouri.

Division Two, December 1, 1931.

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

REVERSED AND REMANDED.

C.L. de Renthel, Mark D. Eagleton and James A. Waechter for appellant.

(1) The giving of Instruction 3 constituted reversible error, because: (a) The plaintiff submitted the case to the jury solely on the humanitarian doctrine, and there was no issue of contributory negligence for the jury to decide, because contributory negligence is not a defense under the humanitarian doctrine. The instruction submitted contributory negligence as a defense, which was "highly prejudicial" error. Spindler v. Wells, 276 S.W. 388; Yakoboski v. Wells, 253 S.W. 72; Nipper v. Railroad Co., 145 Mo. App. 224; Jackson v. Rys. Co., 232 S.W. 753; Evans v. Klusmeyer, 301 Mo. 352; Burke v. Pappas, 293 S.W. 145; Seithel v. Dairy Co., 300 S.W. 280; Shultz v. Smercina, 1 S.W. (2d) 119; Shumate v. Wells, 9 S.W. (2d) 634; Jageles v. Berberich, 20 S.W. (2d) 579; Kenney v. Hoerr, 23 S.W. (2d) 99; Causey v. Wittig, 11 S.W. (2d) 14. (b) This instruction submits contributory negligence for the jury's decision, although it was not in the case as submitted to the jury, and not a defense. This was prejudicial error. Such instruction can serve no legitimate purpose in a humanitarian doctrine case. The inevitable effect is to confuse and mislead the jury. Thornton v. Stewart, 240 S.W. 504; Smith v. Rys. Co., 208 Mo. App. 139. (2) The giving of Instruction 4 constituted fatal error, because: (a) This instruction, in express terms, is a contributory negligence instruction. It cannot be construed as a defendant's humanitarian instruction, because it entirely ignores the defendant's duty under the humanitarian doctrine to give warning to prevent plaintiff from stepping into the path of the vehicle, and to begin to stop before the pedestrian actually does step in the path of the vehicle. Also, by its language, it seeks to convey the impression that defendant's duties under the humanitarian doctrine do not arise until the plaintiff is in the actual path of the oncoming vehicle. The zone of peril under the humanitarian doctrine is not limited to the immediate path of the approaching vehicle. Zumwalt v. Railroad, 266 S.W. 717; Maginnis v. Railroad, 268 Mo. 67; Murrell v. Railroad, 279 Mo. 92; Wolf v. Railroad, 212 Mo. App. 26; Hornuckle v. McCarty, 295 Mo. 162; Hopfinger v. Young, 179 S.W. 747; Cases cited, supra, under Point I. (b) It is error to inject false issues into the case. Strother v. Mill Co., 261 Mo. 1. (3) The giving of Instruction 5 was error because it improperly defined what constitutes "ordinary care." By its very terms it stated plaintiff alone was required to exercise ordinary care under all the facts and circumstances in the case, and that the duty to exercise ordinary care did not apply to defendant. Its effect is to confuse and mislead the jury. Cases cited, supra. (4) The giving of all of defendant's instructions, when construed together, should be condemned, because they were unduly argumentative, unduly emphasized facts not in issue, destroyed completely the humanitarian doctrine, and were confusing, conflicting and misleading. Owens v. Rys. Co., 95 Mo. 169; Orcutt v. Bldg. Co., 214 Mo. 35; Hurley v. Ry. Co., 282 S.W. 100; Kuhlman v. Water L. & P. Co., 307 Mo. 607; Landon v. Rys. Co., 237 S.W. 497.

Allen, Moser & Marsalek for respondent.

(1) The plaintiff failed to make a case for the jury under the humanitarian rule, and therefore cannot complain of defendant's instructions on contributory negligence. (a) To warrant a verdict for plaintiff under this rule, evidence as to the relative positions of plaintiff and the truck, when she entered a position of danger, was absolutely essential. There is no such evidence in the record. Bibb v. Grady (Mo. App.), 231 S.W. 1022; Wilson v. Flour Mill Co. (Mo. App.), 245 S.W. 204; Riggs v. K.C. Rys. Co. (Mo. App.), 220 S.W. 697; Lackey v. U. Rys. Co., 288 Mo. 120; Winter v. Van Blarcom, 258 Mo. 418; Sisk v. Const. Co., 316 Mo. 1148; Banks v. Morris & Co., 302 Mo. 254. (b) Since the evidence was insufficient to warrant a recovery on the humanitarian theory, it was not error to instruct the jury on contributory negligence. Sisk v. Const. Co., 316 Mo. 1148; King v. Railroad Co., 211 Mo. 15; Latham v. Douglass (Mo. App.), 206 S.W. 392. (2) Defendant had the right to have its theory of the case clearly submitted to the jury by instructions, notwithstanding plaintiff's countervailing evidence, if there was such. (a) Where the defendant pleads and proves that the injury was due to plaintiff's negligence in moving from a place of safety to a place of danger, so suddenly that the accident could not be avoided by defendant, the submission of instructions on contributory negligence is proper, notwithstanding plaintiff's countervailing evidence. Collins v. Rankin Farms (Mo. App.), 180 S.W. 1054; Livingston v. Maryland Ins. Co., 7 Cranch 506, 3 U.S. (L. Ed.) 421; King v. Railroad Co., 211 Mo. 1; Root v. Railroad, 237 Mo. 640; Feurt v. Lotspeigh, 221 Mo. App. 355; Jennings v. Cooper (Mo. App.), 230 S.W. 328; Miller v. Kansas City (Mo. App.), 247 S.W. 231; Sullivan v. Chauvenet (Mo. App.), 186 S.W. 1093; Derrington v. Poplar Bluff (Mo. App.), 186 S.W. 204; Smith v. Southern, 210 Mo. App. 288; Warehouse & Storage Co. v. Toomey, 181 Mo. App. 64. (b) The trial court could not properly withdraw the assignments of primary negligence by instruction, because they were supported by evidence. Brooks v. Menaugh (Mo.), 284 S.W. 803; Bussey v. Don (Mo.), 259 S.W. 791. Said assignments could not be withdrawn without intrenching upon the plaintiff's alleged right of recovery under the humanitarian theory. Kendrick v. Ryus, 225 Mo. 150; Latham v. Hosch, 207 Mo. App. 388; Schulz v. Smercina (Mo. Sup.), 1 S.W. (2d) 113. (3) Defendant's Instruction 4 does not unduly confine the duty of defendant's chauffeur. The chauffeur was not required to act until plaintiff moved from a place of safety. The instruction correctly states the rule. King v. Railroad Co., 211 Mo. 15; Ennis v. Ry. Co., 155 Mo. 20. (4) The court did not err in giving defendant's Instruction 5. The instruction correctly states the law with reference to the degree of care required of plaintiff, and as to what would constitute negligence on her part. If plaintiff believed a similar instruction applying to defendant was necessary, it was plaintiff's duty to request such an instruction. Berryman v. Surety Co. (Mo. Sup.), 227 S.W. 101; Maloney v. United Rys. Co. (Mo. Sup.), 237 S.W. 515.

HENWOOD, J.

This is a suit in which the plaintiff seeks to recover damages in the sum of $50,000 for personal injuries alleged to have been caused by the negligence of defendant's agent while driving defendant's automobile truck on a public street in the city of St. Louis. The trial resulted in a verdict and judgment for defendant, and plaintiff appealed.

For the purposes of this opinion, the following admissions and evidence will be sufficient:

It was admitted at the trial that, at the time plaintiff was injured, Delmar Boulevard and Goodfellow Avenue were public streets in the city of St. Louis; that the distance between the south rail of the south street car track on Delmar and the south curb of Delmar was twenty-six feet; that, on the west side of the intersection of Delmar and Goodfellow and immediately south of and parallel to the south rail of the south street car track on Delmar, there was a safety zone, forty or fifty feet in length and about four feet in width, marked on the pavement of Delmar; and that the truck which struck plaintiff was owned by defendant and driven by defendant's agent.

Plaintiff testified: Delmar Boulevard runs east and west. Goodfellow Avenue runs north and south, and into Delmar, but does not extend south of Delmar. There are two street car tracks on Delmar. Street cars run eastwardly on the south track. The safety zone on the south side of Delmar, west of the intersection of Delmar and Goodfellow, is directly in front of a garage located at the southwest corner of the intersection. Adjoining the garage on the west side is a doctor's residence, and next to that an oil station. About eleven o'clock in the morning of December 11, 1925, she walked south along the west side of Goodfellow to Delmar, and across Delmar to the southwest corner of the intersection. She stood there for a few moments, looking west, waiting for an east-bound street car. She first saw the street car about opposite the oil station, and then started toward the safety zone. At that time, she saw an automobile at Laurel Avenue, about four hundred feet west, coming east on Delmar. When she was in the safety zone, something struck her. She heard no horn or signal of any kind from an automobile. She was rendered unconscious. She was sixty-nine years of age at the time she was injured. On cross-examination, she said: An automobile was parked at the south curb of Delmar, about eight or ten feet west of the place where she stepped into the street. In going from the curb to the safety zone, she walked "a little bit towards the northwest." She walked "just like" she always walked. She entered the safety zone, at about the middle of it. The street car was then standing there. The front door of the street car, where plaintiff intended to enter, was some distance east of her. The motorman failed to open the door. She then walked "a few steps to the east," intending to rap on the door. She was "very close to the side of the street car," and the south half of Delmar was "all open." Something came "from behind" and struck her, and that was the last she remembered.

George E. Schwartz testified: He was a passenger on the street car, sitting in the third seat from the front, on the north side. Just before the street car stopped at Goodfellow, he saw pla...