State ex rel. Sirkin & Needles Moving Co. v. Hostetter

• Citation: 101 S.W.2d 50,340 Mo. 211
• Decision Date: 23 December 1936
• Docket Number: 34708
• Parties: State of Missouri at the relation of Sirkin & Needles Moving Company, a Corporation, Relator, v. Jefferson D. Hostetter et al., Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

101 S.W.2d 50

340 Mo. 211

State of Missouri at the relation of Sirkin & Needles Moving Company, a Corporation, Relator, v. Jefferson D. Hostetter et al., Judges of the St. Louis Court of Appeals

No. 34708

Supreme Court of Missouri

December 23, 1936

Writ quashed.

Allen Moser & Marsalek, Moser, Marsalek & Dearing and William H. Allen for relator.

(1) Respondents' ruling in their opinion in the Crane case that, under the evidence adduced by the plaintiff, appearing from said opinion, the plaintiff was in imminent peril within the contemplation of the humanitarian rule "practically from the time he entered the intersection," is in direct conflict with the following among other, prior controlling decisions of this court, ruled upon similar facts, holding that the term "imminent peril," within the contemplation of the humanitarian rule, "does not mean remote, uncertain, contingent, nor (for the person affected) avoidable danger," but peril "immediately impending." Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951; Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 711; Ziegelmeier v. Ry. Co., 330 Mo. 1018; Lamoreux v. Ry. Co., 87 S.W.2d 640; Banks v. Morris & Co., 302 Mo. 254. (a) Under Crane's testimony, as shown by respondents' opinion, he was not in a position of imminent peril, "peril immediately impending," until, when about the middle of Thomas Street, proceeding at twelve to fourteen miles an hour and increasing his speed, he suddenly slammed on his brakes as hard as he could and stopped almost instantly, directly in the path of relator's truck. He was not in a position of imminent peril when he entered the intersection, for he could have stopped almost instantly; nor was he in imminent peril at any time thereafter before he suddenly stopped, for his own testimony conclusively demonstrates that, had he continued on as he was proceeding, he would have passed beyond the path of the truck in absolute safety, even without the speed of the latter being reduced. By his abnormal and erratic act in so slapping on his brakes and stopping almost instantly in the middle of Thomas Street, he suddenly created the peril which but therefor would never have arisen, and which the driver of relator's truck could not have been expected to anticipate. And in holding that said plaintiff was in a position of imminent peril prior to the time when he thus suddenly slammed on his brakes and stopped in the path of relator's truck, respondents' opinion is in direct conflict with the following, among other prior controlling decisions of this court, ruled upon similar facts, namely: Lamoreux v. Ry. Co., 87 S.W.2d 640; Phillips v. Ry. Co., 87 S.W.2d 1035; Phillips v. Henson, 326 Mo. 282; Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951; Ziegelmeier v. Ry. Co., 330 Mo. 1018; Roberts v. Consolidated Pav. & Mat. Co., 335 Mo. 6; Lackey v. United Rys. Co., 288 Mo. 120; Pope v. Wab. Ry. Co., 242 Mo. 232; Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344. (2) Respondents, in their opinion, erred in holding that under the evidence adduced by the plaintiff in the Crane case, as shown by said opinion, relator was liable under the humanitarian rule because, as respondents held, the plaintiff had the right of way at this intersection and relator's driver undertook to usurp the right of way. The case, as submitted under the humanitarian rule, as shown by respondents' opinion, involved no question as to which driver had the right of way. The violation, if any, by relator's driver of any right of way statute or rule of law could constitute nothing more than primary, antecedent negligence, affording no right of recovery under the humanitarian rule. The antecedent negligence of a defendant or his servant may not be taken into consideration in determining whether he was negligent under the humanitarian rule. And, in this respect, respondents' opinion is in direct conflict with the following, among other controlling decisions of this court, ruled upon similar facts, namely: Ridge v. Jones, 335 Mo. 219; State ex rel. Fleming v. Bland, 322 Mo. 565; State ex rel. Vulgamott v. Trimble, 300 Mo. 92; Gubernick v. United Rys. Co., 217 S.W. 33; Phillips v. Henson, 326 Mo. 282; Ziegelmeier v. Ry. Co., 330 Mo. 1013; Roberts v. Consolidated Pav. & Mat. Co., 335 Mo. 6. (3) Respondents in their said opinion further erred in holding that under the evidence adduced by the plaintiff in the Crane case, as shown by respondents' opinion, relator was liable under the humanitarian rule as for the alleged failure of its driver to sound a warning of the approach of the truck. The plaintiff's testimony conclusively showed that he was not oblivious to the approach of the truck, but observed and watched it approaching from the time he passed the building line. Obliviousness is a necessary element to the making of a humanitarian case as for failure to warn. Furthermore, the plaintiff was subjected to no danger at all until he suddenly stopped in the path of the truck. And in holding that relator was liable under the humanitarian rule as for failure of its driver to sound a warning, respondents' opinion is squarely in conflict with the following, among other, prior controlling decisions of this court, ruled upon similar facts, namely: Pentecost v. Term. Railroad Co., 334 Mo. 577; Phillips v. Ry. Co., 87 S.W.2d 1035; Weddle v. Trimble, 331 Mo. 1; Womack v. Mo. Pac. Ry. Co., 88 S.W.2d 368.

John F. Clancy and Mason & Flynn for respondents.

(1) On certiorari to quash an opinion of the Court of Appeals, the Supreme Court will accept as correct the statement of the facts of the case as appears in the opinion of the Court of Appeals and the conclusion of the Court of Appeals as to evidentiary matters. State ex rel. Sei v. Haid, 61 S.W.2d 950, 332 Mo. 1061; State ex rel. Hauck Bakery Co. v. Haid, 62 S.W.2d 400, 333 Mo. 76; State ex rel. Arndt v. Cox, 38 S.W.2d 1079, 327 Mo. 790; State ex rel. Valentine Coal Co. v. Trimble, 28 S.W.2d 1028, 325 Mo. 277; State ex rel. C. & A. Railroad Co. v. Allen, 236 S.W. 870, 291 Mo. 206; State ex rel. Barnes Amus. Co. v. Trimble, 300 S.W. 1064, 318 Mo. 274. (2) Respondents' ruling in the Crane case that the plaintiff was in imminent peril within the contemplation of the humanitarian rule "practically from the time he entered the intersection" is a finding of fact by the Court of Appeals based upon the evidence set out in the opinion. There is no case based upon the same or similar facts as those shown in the opinion, in which this court has reached a different conclusion. This court, therefore, on certiorari, will accept such finding of fact and the rules of law applied thereto by the Court of Appeals. Cases cited, supra. (3) Respondents' ruling that under the evidence the plaintiff was in imminent peril practically from the time he entered the intersection is not in conflict with the ruling of this court in any of the cases cited by relator under points 1 and 2 of its brief. Such ruling is in strict accord with the ruling of this court in those of the cases cited in which the facts bear any resemblance to the facts in the Crane case, and in strict accord with other and recent rulings of this court. Phillips v. Henson, 30 S.W.2d 1065; Banks v. Morris, 302 Mo. 254; Spoeneman v. Uhri, 60 S.W.2d 9, 332 Mo. 821; Dodson v. Gate City Oil Co., 88 S.W.2d 866; Allen v. Kessler, 64 S.W.2d 630. (4) While the Court of Appeals had no right to hold that there was a liability under the humanitarian rule merely because the truck driver was guilty of primary and antecedent negligence in failure to yield the right of way, the court did have a right to consider the antecedent conduct of both parties for the purpose of determining whether the plaintiff was in a position of peril and oblivious of it prior to the collision, and whether the truck driver should have known of it in time to have avoided the collision, or whether the peril was solely due to some unanticipated act on the part of the plaintiff which put him in peril so close to the oncoming truck that injury could not thereafter be avoided. Phillips v. Henson, 30 S.W.2d 1065; Ridge v. Jones, 335 Mo. 219; Spoeneman v. Uhri, 60 S.W.2d 9, 332 Mo. 821; Dodson v. Gate City Oil Co., 88 S.W.2d 866; Allen v. Kessler, 64 S.W.2d 630.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Certiorari. William B. Crane, as plaintiff, obtained judgment in the Circuit Court of the City of St. Louis against Sirkin & Needles Moving Company, a corporation, this relator, for $ 3750 for personal injuries and damage to his automobile due, it was claimed, to negligence of the truck driver of relator, defendant in the original action. Upon appeal by said defendant the St. Louis Court of Appeals affirmed the judgment in an opinion reported under the style of Crane v. Sirkin & Needles Moving Co., in 85 S.W.2d 911. By this proceeding relator seeks to have quashed said opinion and judgment of the Court of Appeals as being in conflict with certain prior decisions of this court. From respondents' opinion the facts appear substantially as follows:

Crane was injured in a collision between his automobile, which he was driving, and a truck driven by Frank Morris relator's servant, in the intersection of Garrison Avenue, a north and south street, and Thomas Street, an east and west street, in St. Louis, each street being thirty-three feet wide. According to Crane's testimony he was driving north in the east side of Garrison Avenue, intending to go on north, and Morris was driving east in Thomas Street. As Crane approached the intersection he reduced his speed and first looked east on Thomas Street, seeing that the way was clear in that direction. On account of certain buildings he could not see to the west on Thomas Street till he neared the south line of the intersection. Then, when...