State v. Allen

• Decision Date: 06 April 1923
• Docket Number: No. 23799.,23799.
• Citation: 250 S.W. 580
• Parties: STATE ex rel. DOWELL v. ALLEN et al., Judges, et al.
• Court: Missouri Supreme Court

250 S.W. 580

STATE ex rel. DOWELL v. ALLEN et al., Judges, et al.

No. 23799.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Action by Marshall Ford, on whose death the cause was revived in the name of William A. Ford, as executor, against George B. Dowell. Judgment for plaintiff affirmed by St. Louis Court of Appeals (243 S. W. 366), and the State, at the relation of defendant, brings certiorari against William H. Allen and others, Judges of the St. Louis Court of Appeals, and another. Writ quashed.

J. O. Allison, of New London, and Rendlen & White, of Hannibal, for relator. Berryman Henwood, of Hannibal, for respondents.

LINDSAY, C.

Certiorari. The record brought here by the writ is that of the St. Louis Court of Appeals in Marshall Ford v. George B. Dowell, 243 S. W. 366. Upon the death of plaintiff, and since return to the writ was made, the cause has been revived as to him in the came of his executor. The action is for damages for personal injuries received by Marshall Ford by being run down by an automobile driven by Dowell, the relator, and resulted in a verdict and judgment for the plaintiff therein for $1,500, which was affirmed by the St. Louis Court of Appeals.

The petition is in one count, and charges and specifies common-law and statutory negligence, a violation of an ordinance of the city of Hannibal, and a violation of the humanitarian doctrine. The answer is a general denial and a plea of contributory negligence. The case was submitted under instructions upon common-law and statutory negligence, and upon the humanitarian doctrine.

The principal questions considered by the Court of Appeals and decided adversely to relator's contention were: (a) That the demurrer to the evidence should have been sustained; (b) that plaintiff was guilty of contributory negligence as a matter of law; (c) that, if the issue of liability under the humanitarian doctrine was submissible, that issue alone should have been submitted; and (d) that by reason thereof certain instructions given and defining negligence were improper, confusing, and misleading as applicable to either the issue on primary negligence, or the issue of liability under the humanitarian doctrine. Relator earnestly insists that the ruling of the Court of Appeals on each of the foregoing particulars is in conflict with certain controlling decisions of this court.

As a basis for his argument relator sets forth in his statement and brief much evidence not to be found in the finding and statement made by the Court of Appeals. The Court of Appeals stated the facts as follows:

"The accident occurred on Market street in the city of Hannibal. Market street is a much-traveled public highway, and runs east and west at this point. The neighborhood is known as Oakwood, and comprises what might be called a `village' of about 300 inhabitants. Between the city of Hannibal proper and Oakwood the city is only sparsely settled. The business houses in Oakwood are grouped along Market street. Price avenue intersects Market street in Oakwood, and at this intersection a concrete crossing is laid across Market street. The post office is located on the south side of Market street, about 60 feet west of the concrete crossing along Price avenue, and about 100 feet west of this concrete crossing there was a cinder walk across Market street between the building known as Link's store on the north and Jackson's barber shop on the south. Market street is 39 feet wide from curb to curb.

"The cinder walk has been used by pedestrians in crossing Market street at that paint for more than 21 years, and was so used very generally as a crossing at the time of this accident. It was used by people living in the west section of Oakwood in going to and from the post office. It seems that the concrete crossing was used by those coming from the east end of Oakwood, and the cinder walk was used by those coming from the west end. The road is nearly straight at this point, and from the cinder path one could see several hundred yards in either direction east and west.

"Plaintiff was about 76 years of age. He lived in this section of the city for about 25 years, and at the time of the accident was living about five blocks west of the Link store building. He was employed as a janitor at the schoolhouse, and did other odd jobs in the neighborhood, earning about $20 per month. On this day he was on his way to the post office. In proceeding eastwardly he walked along the concrete sidewalk on the north side of Market street to the Link store building. He started south across the cinder walk, but waited until two automobiles approaching from the west had passed. One was driven by Miss Gillum and the other by Dr. Millheizer. The Gillum and Millheizer cars, according to the testimony of plaintiff, were about 40 or 50 feet apart, and it seems that defendant's car, according to the testimony of nearly all the witnesses, was about 70 feet to the rear of the second car. As soon as the Millheizer or the second car passed, plaintiff started again to cross Market street from the north to the Jackson barber shop to the south on his way to the post office on the cinder walk above referred to. Of the facts and circumstances immediately surrounding the accident plaintiff testified on direct examination as follows: `When I got in front of the Link store building I saw two automobiles coming down. They were coming toward Hannibal, coming flying down there. I mean by that running pretty fast. They were tolerable close together; one behind the other, just acoming fast. I just stepped back when I saw the cars until they passed, against the Link store. I was at the Link store when they passed. They were right close together, the two cars, just a few feet apart, very few; I don't know how many feet exactly. They were close together and driving full speed. They went on by. It was a dry day that day. The road was dry, but some dusty; saw some dust flying after the two cars passed. I started across the street again. Before I started to cross I looked up on the road and down the road. I looked up on the road and saw no car coming. There was some dust up on the road. I did not hear anything coming, and I started across the road. When I started across there they, drove down there, they struck me, car or automobile struck me. * * * It was old man Dowell, I mean George B. Dowell, the defendant. I got about the middle of the street, first thing I knew about this automobile coming that struck me, they struck me and picked me up and carried me on. * * * He never blew no whistle nor rang no bell. I did not hear any horn or other signal, not nothing, when I started to cross the street: did not hear any notice or warning of the approach of the car, and, being at the store and started over there, I did not know it was coming. I never realized it was coming until after it hit me. I felt it hit my hip here. It hit my left hip.'

"U. T. Seniff, a witness for plaintiff, testified that he was a street car conductor at Hannibal and had been so employed for 14 years or more, and that by reason of his experience as a conductor and motorman of street cars he had become very familiar with the speed of street cars and other moving objects along public highways; that he observed automobiles driving along the streets and had made observations of their speed. This witness was standing on the ground by his street car at the time plaintiff was injured. He had stopped Ms street car to allow a wait, according to schedule. Re saw Miss Gillum approach in her car, also saw the second car, and then the third car about a block behind the second one. He said that all three of these cars were running at about equal speed, being about 20 to 25 miles per hour. Witness was about a block from the Link building, and accordingly about a block from the cinder path. On cross-examination he placed the distance at two blocks. Witness testified that, while there was some dust in the trail of the cars, `it did not keep me from seeing the cars. * * * I was standing on the ground by the street car. I could see the car very plainly and distinctly as it came along for quite a distance up the road,' and that the cars `kinda checked up for the cinder crossing, and that they bounced up in the air in crossing it,

"A. L. Link, on behalf of plaintiff, testified that he was proprietor of Link's store; that he saw defendant's car turn over on Market street, and that he sought shelter behind a tree when he saw the car coming towards him; that it came directly towards the tree and telephone pole behind which he was hiding, and that the car had turned almost completely to the north when it turned over; that plaintiff was picked up about 30 feet from where the car turned over. This witness, who had lived in the neighborhood for many years, testified that the cinder walk was very commonly used, and was the usual course taken by persona crossing at that point.

"Robert W. Smarr, then engaged as a grocer at Oakwood, on behalf of plaintiff, gave this version of the accident: That he saw the first two cars pass when he noticed plaintiff stop and stand at the edge of the curb, that plaintiff waited, and that after these two cars passed plaintiff `started across the street and was struck by Mr. Dowell's car. Mr. Dowell was driving the car himself. In crossing the street Mr. Ford went a little east of south, but in a general direction to the south. He was about halfway across the road when he was struck by Mr. Dowell's car: * * * would say they [cars] were moving fast. * * * Mr. Ford was just passing in the ordinary gait. He is an old gentleman and was walking slow. He got around pretty well for one of his age, but compared with men of ordinary life and in the prime of life he went slow. I will say he walked between three and four miles an hour. * * * He [plaintiff] saw the car just about the time it `got on him.'

"According to this and other witnesses, defendant's car...