Smithers v. Barker, 35312.

Citation111 S.W.2d 47
Decision Date14 December 1937
Docket NumberNo. 35312.,35312.
PartiesCHARLES W. SMITHERS v. JOHN T. BARKER, Appellant.
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. Hon. E.H. Wright, Judge.

REVERSED AND REMANDED.

Morrison, Nugent, Wylder & Berger and Chas. C. Byers for appellant.

(1) The court erred in permitting the submission of the case upon the humanitarian doctrine, as the plaintiff did not make a case sufficient under that doctrine to support a verdict. Elkin v. St. L. Pub. Serv. Co., 74 S.W. (2d) 603; Pentecost v. Railroad Co., 66 S.W. (2d) 535; Long v. Binnicker, 63 S.W. (2d) 833; State ex rel. Weddle v. Trimble, 52 S.W. (2d) 867; Rollison v. Wab. Railroad Co., 252 Mo. 541; Neas v. C., B. & Q. Ry. Co., 138 Mo. App. 505. (2) The court erred in overruling the defendant's demurrers to the evidence. (a) The plaintiff did not make a submissible case upon primary negligence, and was shown by all of the evidence to have been guilty of contributory negligence. (b) The plaintiff did not make a case submissible under the humanitarian doctrine. Authorities under Point (1). (3) The court erred in giving the jury Instruction 1, requested by the plaintiff, over the objections and exceptions of the defendant. (a) This instruction submitting the case upon the humanitarian doctrine, although calling for a verdict in favor of plaintiff, and although postulating a condition upon plaintiff's part of obliviousness to his peril, wholly fails to require knowledge of such obliviousness upon the part of the defendant. Knapp v. Dunham, 195 S.W. 1063; Kamoss v. Ry. Co., 202 S.W. 435; Haines v. K.C. Rys. Co., 203 S.W. 632; Crockett v. K.C. Rys. Co., 243 S.W. 906; Burgess v. Garvin, 272 S.W. 114; Lewis v. Met. St. Ry. Co., 168 S.W. 834: Phillips v. Henson, 30 S.W. (2d) 1067; White v. Mo. Motors Dist. Co., 47 S.W. (2d) 249; Elkin v. St. L. Pub. Serv. Co., 74 S.W. (2d) 603; Wallace v. St. J. Ry., L., H. & P. Co., 77 S.W. (2d) 1012; Pentecost v. Railroad Co., 66 S.W. (2d) 533; Jordan v. St. J.L., H. & P. Co., 73 S.W. (2d) 205; Robertson v. Scoggins, 73 S.W. (2d) 436: Bollinger v. St. L. & S.F. Ry. Co., 67 S.W. (2d) 991; Lakin v. C., R.I. & P. Ry. Co., 78 S.W. (2d) 481. (b) Plaintiff's Instruction 1 peremptorily instructs the jury that the defendant could have stopped his car or slackened the speed thereof in time to have avoided the collision. (c) Plaintiff's Instruction 1 is confusing and misleading in that it informs the jury arbitrarily that the plaintiff entered a position of peril at the time at which he entered the intersection. (d) The final paragraph of plaintiff's Instruction 1 erroneously includes references to the immateriality of negligence and drunkenness upon plaintiff's part. (e) This erroneously injected foreign and prejudicial elements into the submission of the case, which was upon the humanitarian doctrine alone. Mayfield v. K.C. So. Ry. Co., 85 S.W. (2d) 116; Sevedge v. Railroad Co., 53 S.W. (2d) 284; Wholf v. Ry. Co., 73 S.W. (2d) 195; Schulz v. Smercina, 1 S.W. (2d) 120; Pence v. K.C. Laundry Serv. Co., 59 S.W. (2d) 633; Willhauck v. C., R.I. & P. Ry. Co., 61 S.W. (2d) 336.

Julius C. Shapiro and Robert H. Miller for respondent; William Goodman of counsel.

(1) Appellant's assignment of error 1 and point and authority 1 is insufficient in that it does not point out wherein the court erred. Morris v. Washington Natl. Ins. Co., 90 S.W. (2d) 139; Morris v. Continental Ins. Co., 256 S.W. 120. (a) Appellant is estopped to deny that the cause was not properly submitted under the humanitarian doctrine. Scoggins v. Miller, 80 S.W. (2d) 728; Wielms v. St. L. County Gas Co., 37 S.W. (2d) 457; Detmering v. St. L.-S.F. Ry. Co., 36 S.W. (2d) 116. (b) Appellant concedes that a submissible case was made under the humanitarian doctrine. Scoggins v. Miller, 80 S.W. (2d) 728; Cox v. Reynolds, 18 S.W. (2d) 579; Bogie v. Nolan, 96 Mo. 90; Rettali v. Salomon, 274 S.W. 368; Dawes v. Williams, 40 S.W. (2d) 646; Garfinkel v. Nugent & Bros. D.G. Co., 25 S.W. (2d) 122. (2) The court did not err in giving plaintiff's Instruction 1. Banks v. Morris & Co., 257 S.W. 482; Newton v. Harvey, 202 S.W. 251; Llywelyn v. Lowe, 239 S.W. 538; Woods v. Moffit, 38 S.W. (2d) 530; Millhouser v. K.C. Pub. Serv. Co., 55 S.W. (2d) 673; Id., 71 S.W. (2d) 164; Kinlen v. Met. St. Ry. Co., 216 Mo. 167; Transbarger v. C. & A. Ry. Co., 250 Mo. 46, 156 S.W. 697; Kloeckener v. St. L. Pub. Serv. Co., 53 S.W. (2d) 1043; Hoodenpyle v. Wells, 10 S.W. (2d) 332; Silliman v. Munger Laundry Co., 44 S.W. (2d) 159; Reichers v. Meyers, 28 S.W. (2d) 405; Luck v. Pemberton, 29 S.W. (2d) 197; Banks v. Empire Dist. El. Co., 4 S.W. (2d) 875; Greer v. Springfield Creamery Co., 240 S.W. 833; Schmidt v. Shuplak, 42 S.W. (2d) 959; Morris v. Washington Natl. Ins. Co., 90 S.W. (2d) 138; Martin v. Continental Ins. Co., 256 S.W. 120; Benzel v. Anishanzlin, 297 S.W. 183; Grubbs v. K.C. Pub. Serv. Co., 45 S.W. (2d) 79.

HYDE, C.

This is an action for damages for personal injuries sustained in an automobile collision. Judgment was for plaintiff for $5000. Defendant appealed to the Kansas City Court of Appeals which affirmed the judgment. Upon dissent by one of the judges thereof, the case has been certified here in accordance with the provisions of Section 6, Amendment of 1884 to Article VI of our Constitution. [See 97 S.W. (2d) 121, for these opinions.]

Plaintiff alleged primary negligence charges of defendant's failure to warn, failure to keep his automobile under reasonable control, and excessive speed, and also negligence under the humanitarian rule; but only humanitarian negligence was submitted. Defendant assigns error in overruling his demurrer to the evidence offered at the close of the case. The collision took place shortly after midnight of July 29, 1933, at the intersection of Broadway (a north and south street) and Twentieth Street (an east and west street) in Kansas City. Considering evidence most favorable to plaintiff's contentions, the jury could have found the facts to be as hereinafter stated. Plaintiff drove (with his friend Mr. Sheldon in his automobile) west on Twentieth Street until he came to Broadway. There were two street car tracks on Broadway and it was designated an arterial or through street. He stopped before entering Broadway with the front end of his car a little west of a stop sign, located near the building line, at the inside (east) edge of the sidewalk. He said that he then saw defendant's car, about a block to the north, coming south, and saw another car, about a half block south, coming north. He then "edged out into the street" (Broadway) about "six or eight feet" and stopped again. The northbound car was traveling "about on the car tracks ... kind of straddle of one of the car tracks." He waited for it to pass and thereafter did not look south again. (Both of his stops were complete stops.) He then looked north and again saw defendant's car approaching "above the safety zone there." He said that he "would estimate it was 175 feet up there;" that it might have been 200 feet;" that it was "hard to estimate a car coming that way at night, but I would not say it was making over 25 or 26 miles an hour;" and that he "assumed" he "had time and could go across with safety." He said its speed was not "noticeably" increased over the first time he saw it. He started up in low gear, shifted to intermediate, and increased his speed to about eight or ten miles per hour before he reached the point where the cars came together, which he said was after he "was over the street car tracks" and from six to ten feet west of the west rail of the west (southbound) street car track. He said that the front end of his car was about "even with the line of the curb, the west curb" on the west side of Broadway. He said defendant's car was "astraddle" the west rail of the southbound track when he started across Broadway after his second stop, but that it was west of the west line of the safety zone (west of the southbound track) at the time of collision.

Plaintiff further testified:

"Q. And you didn't see him change his course, yourself? A. I did not. Q. Were you asked those questions, and did you give those answers? A. I believe I answered there that I could not watch him always and drive my own car... . I was busy driving my car, and looking ahead. Q. You say you saw the Barker car when it was 150 or 200 feet north of you, and the next time you saw it it was right on you. A. Yes. Q. Then, you didn't watch the Barker car while it was traveling a distance of 200 feet? A. I glanced at it, and noticed it. Q. The question was, after you saw it about 200 feet or 150 feet — whatever it was, north of you, after the northbound car had passed, you didn't watch it any more until it was just within a few feet of you, you didn't see it any more? A. I don't think I did." Plaintiff also said: "At ten miles an hour, in second gear, I can stop my car in three feet, or four and a half feet."

An agreed plat showed that Twentieth Street from curb to curb is a street approximately thirty-seven feet wide; and Broadway, at Twentieth Street is approximately fifty-two feet wide. The safety zone on the west side of Broadway extended sixty-five feet north from the north line of Twentieth street. The west line of the safety zone buttons is five and one-half feet from the west rail of the southbound car tracks; and from the line of these buttons to the west curb line of Broadway, is thirteen and one-tenth feet. The distance from the west rail of the southbound car tracks to the west curb of Broadway is eighteen and six-tenths feet. The street car tracks from the outside rail of the northbound track, is the standard width of fourteen feet and eight inches. The grade on both streets was from four and one-half to five per cent.

Plaintiff's testimony as to speed, distances, stops, starts, and place of collision was corroborated by Sheldon. He was even more definite than plaintiff,...

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