State ex rel. Snider v. Shain

• Decision Date: 05 March 1940
• Docket Number: 36753
• Citation: 137 S.W.2d 527,345 Mo. 950
• Parties: State of Missouri at the relation of Dr. Sam H. Snider, Relator, v. Hopkins B. Shain, William E. Kemp, and Ewing C. Bland, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

137 S.W.2d 527

345 Mo. 950

State of Missouri at the relation of Dr. Sam H. Snider, Relator, v. Hopkins B. Shain, William E. Kemp, and Ewing C. Bland, Judges of the Kansas City Court of Appeals

No. 36753

Supreme Court of Missouri

March 5, 1940

Opinion and record of Court of Appeals quashed.

William F. Knowles, Paul C. Sprinkle and Sprinkle & Knowles for relator.

(1) The opinion of the respondents holding that the instruction given on behalf of plaintiff upon the last chance or humanitarian theory was not erroneous is in conflict with decisions of this court because said instruction not being based upon the record, erroneously extends the scope of peril, assumes certain facts to be negligence and eliminates the sole negligence defense. Perkins v. Ry. Co., 102 S.W.2d 915; Smithers v. Barker, 111 S.W.2d 47; Buehler v. Festus Merc. Co., 119 S.W.2d 961; McKenna v Lynch, 233 S.W. 175; McCloskey v. Koplar, 46 S.W.2d 557; Ducoulombier v. Baldwin, 101 S.W.2d 96; Borgstede v. Waldbauer, 88 S.W.2d 373. (2) The respondents holding that the trial court was not in error in refusing relator's sole negligence instruction is in conflict with the decision of this court in Borgstede v Waldbauer, 88 S.W.2d 373, and other decisions of this court following said authority. Dilallo v. Lynch, 101 S.W.2d 7; Borgstede v. Waldbauer, 88 S.W.2d 373; Shaw v. Fulkerson, 96 S.W.2d 495; Doherty v Butter Co., 98 S.W.2d 742; Hough v. Ry. Co., 100 S.W.2d 499; Kirkham v. Music Co., 104 S.W.2d 234.

Cooper, Neel & Sutherland and Frank J. Rogers for respondents.

(1) The opinion of respondent judges in approving plaintiff's humanitarian instruction does not conflict with controlling decisions of this court. (a) Respondents' ruling that said instruction did not erroneously extend the zone of peril in placing a duty on defendant when plaintiff was immediately coming into a position of peril and apparently oblivious is not in conflict with decision of this court. State ex rel. Silverforb v. Smith, 43 S.W.2d 1054; State ex rel. M.-K.-T. Ry. Co. v. Shain, 124 S.W.2d 1141; Perkins v. Ry. Co., 102 S.W.2d 915; Smithers v. Barker, 111 S.W.2d 47; Buehler v. Festus Mercantile Co., 119 S.W.2d 961; Crews v. K. C. Pub. Serv. Co., 111 S.W.2d 54; State ex rel. Himmelsbach v. Becker, 85 S.W.2d 420. (b) Said instruction in directing that if the jury found all the essential facts constituting negligence under humanitarian doctrine then defendant was guilty of negligence did not erroneously assume defendant's negligence and the opinion in so holding does not conflict with decisions of this court. State ex rel. St. Joseph v. Ellison, 223 S.W. 671; Oglesby v. St. L.-S. F. Ry. Co., 1 S.W.2d 172; Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 59; Benzel v. Anishanzlin, 297 S.W. 180; McCloskey v. Koplar, 46 S.W.2d 557; McKenna v. Lynch, 233 S.W. 175. (c) After requiring the jury to find defendant's humanitarian negligence and plaintiff's injury as a result thereof, said instruction in directing a verdict regardless of any other fact or circumstance in event, did not eliminate the defense of sole negligence and is clearly distinguishable from language criticized by this court in Smithers v. Barker and the respondents' opinion in so holding does not conflict with decisions of this court. Smithers v. Barker, 111 S.W.2d 47; State ex rel. M.-K.-T. Ry. Co. v. Shain, 124 S.W.2d 1141; Crews v. K. C. Pub Serv. Co., 111 S.W.2d 54; Melenson v. Howell, 130 S.W.2d 555; State ex rel. Pub. Serv. Co. v. Shain, 124 S.W.2d 1097; Banks v. Morris & Co., 302 Mo. 254. (2) Defendant's sole cause instruction containing numerous references to plaintiff's contributory negligence, submitting abstractly defendant's freedom from negligence and not specifically requiring a finding of defendant's freedom from humanitarian negligence and not specifically requiring a finding of predicated facts that would constitute sole negligence was properly refused by the trial court and the opinion of respondent judges in so holding does not conflict with decisions of this court. Dilallo v. Lynch, 101 S.W.2d 7; Doherty v. St. Louis Butter Co., 98 S.W.2d 742; McGrath v. Meyers, 107 S.W.2d 792; State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 589; State ex rel. Hoyt v. Shain, 93 S.W.2d 992; State ex rel. v. Reynolds, 284 Mo. 372.

OPINION

Clark, J.

This case was argued and submitted at the September Term, 1939, of this court en banc, and an opinion written. On January 8, 1940, a motion for rehearing was granted, the case reargued on February 9, 1940, and assigned to the writer.

Certiorari to review rulings of the Kansas City Court of Appeals in the case of Blunk v. Snider, 129 S.W.2d 1075. In such proceeding we are limited to the question of conflict between the opinion of the Court of Appeals and the latest decisions of this court on the subject, either as to a general principle of law announced, or as to a ruling under a like or similar state of facts. [State ex rel. v. Shain et al., 343 Mo. 961, 124 S.W.2d 1141, l. c. 1142, and cases cited.]

In the trial court plaintiff recovered a judgment for injuries received at the intersection of Main and Thirty-First Streets in Kansas City, due to being struck by an automobile driven by defendant (relator) on Main Street while plaintiff, a pedestrian, was crossing said street going west on the south side of Thirty-First Street. The judgment was affirmed by the Court of Appeals.

Respondents have filed a motion in this court to dismiss for alleged failure of relator to comply with our rules in specifying the errors and point of conflict complained of. We hold that these matters are sufficiently set forth in that portion of relator's brief headed "Points and Authorities" and overrule the motion.

Relator contends: I. That the holding by respondents that plaintiff's Instruction No. 1 on the humanitarian theory is not erroneous conflicts with Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961, and other decisions of this court; II. That the holding of respondents that the trial court did not err, in refusing defendant's sole negligence Instruction No. F, conflicts with Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373, and other decisions of this court.

I. We set out plaintiff's Instruction No. 1 in full:

"The court instructs the jury that if you find and believe from the evidence that Main Street at the time and place mentioned in evidence, was a public street in Kansas City, Missouri, and that the defendant, Sam H. Snider, was driving his automobile in a northerly direction on said street at such time and place (if so), and if you further find that at such time and place plaintiff was crossing Main Street in a westerly direction (if so), and was in or coming into a position of peril of being struck by defendant's automobile (if you so find) and was oblivious of such peril (if so), and if you further find that the defendant saw, or by the exercise of the highest degree of care could have seen, the plaintiff in or immediately coming into a position of peril of being struck and injured by defendant's automobile (if you so find), and apparently oblivious of any impending danger (if any), in time thereafter, by the exercise of the highest degree of care on the part of the defendant, with the means at his command and with safety to himself and his automobile to have stopped his automobile and thereby avoided striking plaintiff, or to have swerved his automobile and thereby have avoided striking the plaintiff, or to have given a warning of the approach of his automobile, and thereby have avoided striking the plaintiff, and (if you so find), if you further find that the defendant failed to exercise the highest degree of care in so stopping or swerving or sounding a warning, then you are instructed that the defendant was guilty of negligence, and if you further find that as a direct result of such negligence (if you find defendant was negligent), defendant's automobile struck the plaintiff and thereby injured her (if so), then you are instructed that regardless of any other fact or circumstance in evidence, your verdict must be in favor of the plaintiff and against the defendant.

"'Highest degree of care,' as used herein, means that degree of care which a very careful and prudent driver of an automobile would exercise under the same or similar circumstances."

Relator's first objection to the instruction is that it erroneously extended the scope of plaintiff's peril in which defendant was required to act under the humanitarian doctrine. The language complained of is: ". . . if you further find that at said time and place plaintiff . . . was in or coming into a position of peril of being struck by defendant's automobile (if you so find) and was oblivious of such peril (if so), and if you further find that defendant saw, or by the exercise of the highest degree of care could have seen the plaintiff in or immediately coming into a position of being struck and injured by defendant's automobile (if you so find), and apparently oblivious of any impending danger. . . ."

In Buehler v. Festus Merc. Co., supra, plaintiff's Instruction No. 2 told the jury that if they believe the automobile "became and was in a position of imminent peril" of being struck by the truck while crossing Mill Street, and defendant saw, or by the exercise of the highest degree of care, could have seen the automobile crossing Mill Street "approaching and in the aforesaid position of imminent peril," etc. We said: "That word approaching meant something in the instruction. According to its ordinary meaning it indefinitely extended the field within which vigilance under the humanitarian doctrine was exacted. But the law is that that duty does not arise until a situation of peril arises."

The language...