Spoeneman v. Uhri

• Decision Date: 20 April 1933
• Docket Number: No. 30825.,30825.
• Citation: 60 S.W.2d 9
• Parties: WALTER H. SPOENEMAN, Appellant, v. WILLIAM C. UHRI.
• Court: Missouri Supreme Court

60 S.W.2d 9

WALTER H. SPOENEMAN, Appellant, v. WILLIAM C. UHRI.

No. 30825.

Supreme Court of Missouri, Division Two.

April 20, 1933.

Appeal from Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.

AFFIRMED.

George F. Heege and Lehmann & Lehmann for appellant.

(1) The humanitarian or last-chance doctrine is still in force and effect in this State. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Davis v. Howell, 324 Mo. 1227, 27 S.W. (2d) 13; Phillips v. Henson, 326 Mo. 282, 30 S.W. (2d) 1065; Repp v. Kirkwood, 25 S.W. (2d) 135. (2) A party is entitled to have his theory of the case made by the pleadings and issues presented to the jury by proper instructions. King v. Wabash, 211 Mo. 14.

Taylor, Chasnoff & Willson and James V. Frank for respondent.

(1) The trial court committed no error in refusing to submit the case to the jury under the humanitarian doctrine for the reason that the petition failed to properly state a cause of action under the humanitarian doctrine. Sec. 764, R.S. 1929; Pier v. Heinrichoffen, 52 Mo. 336; Musser v. Musser, 221 S.W. 50; Banks v. Morris, 257 S.W. 484; Ziegelmeier v. Ry. Co., 51 S.W. (2d) 1027; Kralitz v. Calcaterra, 33 S.W. (2d) 911; Koewing v. Green County Bldg. & Loan Assn., 38 S.W. (2d) 44. (2) The trial court properly refused to submit the case to the jury under the humanitarian doctrine for the reason that the evidence failed to make out a case under the humanitarian doctrine. (a) There is a fatal gap in plaintiff's case for the reason that there is no evidence in the record as to the distance in which defendant's automobile could be stopped going at the rate of speed shown by plaintiff's evidence. Banks v. Morris, 257 S.W. 482; Ziegelmeier v. Ry. Co., 51 S.W. (2d) 1027; Burge v. Railway Co., 244 Mo. 101; Fleming v. Railroad, 263 Mo. 189; Alexander v. Railroad, 233 S.W. 50; Sisk v. Industrial Track Construction Co., 295 S.W. 752; Bibbs v. Grady, 231 S.W. 1022; Riggs v. Railway Co., 220 S.W. 698; Murray v. St. Louis Wire & Iron Co., 238 S.W. 838; Wilkerson v. Railroad, 140 Mo. App. 316; Cluck v. Abe, 40 S.W. (2d) 561. (b) There is no evidence in the record that defendant failed to swing to the left or that defendant could have turned further to the left than the evidence shows he actually did. Banks v. Morris, 257 S.W. 482; Ziegelmeier v. Ry. Co., 51 S.W. (2d) 1027. (c) There is no evidence in the record that defendant could have averted the collision after plaintiff got into a position of peril, nor does plaintiff's evidence establish the distance between defendant's automobile and plaintiff's automobile at the time plaintiff got into a position of peril. Banks v. Morris, 257 S.W. 482; Ziegelmeier v. Ry. Co., 51 S.W. (2d) 1027. (d) Evidence so contrary to the physical facts as to be inherently impossible should be disregarded by the court. Sexton v. Street Railway, 245 Mo. 272; Roseman v. United Rys. Co., 251 S.W. 106. (e) An appellate court will not pass on the weight of the evidence. Cluck v. Abe, 40 S.W. (2d) 560. (3) The trial court did not err in refusing to give to the jury plaintiff's requested instruction on the humanitarian doctrine because the offered instruction was defective. Banks v. Morris, 257 S.W. 482.

ELLISON, P.J.

Suit for $35,000 damages for alleged personal injuries received by the plaintiff in a collision between his automobile and one driven by the defendant. The defendant's answer pleaded contributory negligence. The plaintiff, attempting to avoid that issue, sought to submit the case solely on the humanitarian doctrine, but the trial court refused to give his instruction on that theory. He thereupon went to the jury with only one instruction — on the measure of damages — and the verdict was against him. He appeals contending, as he did in his motion for new trial, that the circuit court erred in refusing to permit the submission of the case on the humanitarian doctrine. The defendant-respondent maintains the ruling was correct because the plaintiff's petition failed to state, and the evidence failed to make out, a case under the humanitarian doctrine, and the instruction rejected was erroneous.

The collision occurred at the intersection of Lindell Boulevard and Boyle Avenue in the city of St. Louis about 9:30 o'clock on the morning of November 7, 1927. Lindell Boulevard runs east and west and is about ninety feet wide. Boyle Avenue is an intersecting street running north and south, and is about twenty-five feet wide. The appellant testified the injuries he received caused amnesia, and that he could remember nothing that occurred from some time before the accident until several days thereafter. The testimony in his behalf came from two eyewitnesses, Thomas J. Shore and Ardell Thompson.

Mr. Shore testified that he was standing at the southeast corner of the intersection when the cars collided. The appellant was driving west in a Ford coupe on the north or right side of Lindell Boulevard. When he had got about seven feet into the intersection he began to make a left turn southerly into Boyle Avenue. He had his arm out the left car window. The front wheels of the automobile had just about reached the curb at the southwest corner of the intersection when the collision occurred. The front right bumper of the respondent's Buick struck the right rear fender of the appellant's Ford coupe and spinned it around three times, in the course of which the appellant fell from the car to the street. The Ford coupe then caromed off of a truck standing on the east side of Boyle Avenue some fifteen feet south of the intersection and thence ran back into the intersection where it again came into collision with the respondent's automobile and then hit a taxicab. The Ford finally was stopped in Lindell Boulevard with engine running, "about 2 houses" east of the point of collision.

This witness further said that when he noticed the appellant making the left turn in Boyle Avenue he glanced up west along Lindell Boulevard and noticed the respondent's automobile approaching. It was about 400 feet away and traveling east on the south or right side of the thoroughfare at a speed of forty-five to fifty miles an hour. There was a drizzling rain or mist and the street was wet. It appeared to the witness that the respondent's car was going to try to cut in front of the appellant's Ford coupe and that when the respondent saw "he was blocked off he threw on his brakes and he swung to the left," the collision following. The respondent's automobile left a trail of skid marks which the witness paced off after the accident. They showed it began sliding at a point thirty-five feet west of Boyle Avenue and thus continued clear across Boyle Avenue and beyond for a total distance of about eighty feet. On cross-examination the witness admitted the respondent's automobile was at the head of a line of traffic traveling east on Lindell Boulevard, but he further said when the appellant began to make the left turn this line of cars was back west some three or four hundred feet.

Mr. Thompson, the other eyewitness produced by the appellant, said he was driving south on Boyle Avenue and had stopped at the north side of Lindell Boulevard, where he was waiting for appellant's Ford coupe to pass. The appellant was traveling west on Lindell just to the right of the center line of the street. When he reached about the center of the intersection he made a kind of square left turn. He was moving eight or nine miles per hour and had completed a ninety per cent are and the front wheels of his car were about past the south line of Lindell Boulevard and entering Boyle Avenue when the collision occurred. The witness described the effects of the collision substantially as Shore had done, saying the Ford spun around three times, tossed the appellant back and forth, and finally threw him out; that it then swung back into Lindell and again came in contact with the respondent's Buick and with a taxicab.

This witness declared the respondent was back west some 350 feet on Lindell Boulevard when appellant started to make the left turn. Respondent was traveling east about forty-five miles per hour on the south or right side of the street with a large black car following him and the taxicab behind that. There were a number of cars in that line of traffic. The witness did not hear respondent sound any horn or signal, but he did make every possible effort to stop when he saw there was going to be a collision, and his car wheels slid along the street for about thirty feet.

The evidence for respondent was to the effect that the appellant was traveling west about twenty-five miles per hour, and that he "cut the corner" and made a sudden left turn into Boyle Avenue in front of the approaching eastbound traffic on Lindell Boulevard, headed by respondent, when the latter was only fifty to seventy-five feet away. Respondent said he was moving along about twenty-five miles per hour and that he could not avoid a collision by turning out because of a car parked on the south side of Lindell Boulevard, to his right, and the presence of other cars in the line of traffic closely behind him and to his left. He declared he did the only thing he could do in the circumstances by putting on his brakes and sliding the car wheels on the wet pavement; and he said the shortest distance in which he could bring his car to a stop when traveling twenty-five miles per hour was about forty-five feet.

I. Respondent contends first that the trial court properly refused to submit the case on the humanitarian doctrine because the appellant's petition does not state a good cause of action under that rule. The pleaded specifications of negligence on which appellant relies, and which respondent assails, charge:

(a) negligent failure of respondent to use ordinary care to stop his automobile after he saw appellant in front of him in a position of peril and oblivious thereof;

(b) negligent failure to use ordinary care to check the...