Taggart v. Maserang Drug Co.
| Decision Date | 05 March 1929 |
| Docket Number | No. 20545.,20545. |
| Citation | 14 S.W.2d 453 |
| Court | Missouri Court of Appeals |
| Parties | OMEGA TAGGART, APPELLANT, v. JOSEPH MASERANG DRUG COMPANY, A CORPORATION, RESPONDENT.<SMALL><SUP>*</SUP></SMALL> |
Appeal from the Circuit Court of the City of St. Louis — Hon. M. Hartmann, Judge.
AFFIRMED.
Goodman & Stephenson and Henry S. Cooke for appellant.
(1) The giving of instruction No. 5 constituted reversible error: (a) For the reason there was no evidence to support it. (b) For the reason that it assumes facts not in evidence. Althage v. Peoples Motorbus Co., 8 S.W. (2d) 924. (2) The giving of instruction No. 4 constituted reversible error: (a) Because said instruction absolutely ignored plaintiff's right to recover under the humanitarian doctrine, and was therefore misleading and highly prejudicial. Schulz v. Smercina, 1 S.W. (2d) 113; Peppers v. St. L. & S.F. Ry. Co., 295 S.W. 757; Bartner v. Darst, 285 S.W. 449; Banks v. Morris & Co., 257 S.W., l.c. 484. (b) Because said instruction assumes facts. Althage v. Peoples Motorbus Co., 8 S.W. (2d) 924. (3) The giving of instruction No. 3 constituted fatal error: (a) For the reason that it ignored plaintiff's right to recover under the humanitarian doctrine. Schulz v. Smercina, 1 S.W. (2d) 113; Peppers v. St. L. & S.F. Ry. Co., 295 S.W. 757; Bartner v. Darst 285 S.W. 449; Banks v. Morris & Co., 257 S.W. l. c. 484. (b) For the reason that it attempts to reverse the principle of the humanitarian doctrine and apply such principle to plaintiff, rather than defendant, when such doctrine does not apply to plaintiff. Ch. Heurich Brewing Co. v. McGavin, 16 Fed. (2d) 334; Schulz v. Smercina, 1 S.W. (2d) 113; Burke v. Pappas, 293 S.W. 142; Hanks v. Morris & Co., 257 S.W. l.c. 484. (c) For the reason that it does not confine the jury to a consideration of the specific acts of negligence pleaded in the answer. Bobos v. Krey Packing Co., 296 S.W. 157. (d) For the reason that it assumes facts. Althage v. Peoples Motorbus Co., 8 S.W. (2d) 924. (4) The giving of instruction No. 2 was highly prejudicial and constituted reversible error. (a) For the reason that it erroneously defines the burden of proof cast upon plaintiff in a civil suit and would destroy every vestige of law on this subject previously written, requiring the jury be convinced beyond all doubt. Brooks v. Roberts, 220 S.W. 11; Ternetz v. St. L. Lime & Cement Co., 252 S.W. 65; Nomath Hotel Co. v. Kans. City Gas Co., 253 S.W. 975; Van Ausdol v. Bank of Odessa, 5 S.W. (2d) 109. (b) For the reason that said instruction is contrary to the latest decision of the Supreme Court en banc, which opinion is controlling, notwithstanding subsequent decision on same questions by division. State ex rel. Hopkins v. Daues et al., 6 S.W. (2d), l.c. 893.
Jones, Hocker, Sullivan & Angert for respondent.
(1) Instruction No. 5 given on defendant's behalf was sustained by the evidence. (2) (a) Where plaintiff's case is submitted on several charges of negligence, including the humanitarian doctrine, and no instructions are requested or given on plaintiff's behalf, the plaintiff will not be heard to complain on appeal that an instruction on contributory negligence given on defendant's behalf militates against or is in conflict with the humanitarian doctrine. Sisk v. Industrial Track Const. Co., 316 Mo. 1143. (b) Under such circumstances, if plaintiff desired an instruction that plaintiff's contributory negligence would not preclude her right to recover under the humanitarian doctrine, plaintiff should have requested an instruction to that effect, and the court's failure to so instruct the jury is mere nondirection of which plaintiff cannot now complain. Powell v. Railroad, 255 Mo. 420, 454; Ward v. Fessler, 252 S.W. 667, 670; Denkman v. Prudential Fixture Co., 289 S.W. 591. (c) The evidence was insufficient to justify the submission of the case on the humanitarian doctrine, and plaintiff cannot therefore complain that defendant's instructions Nos. 3 and 4 dealing with plaintiff's contributory negligence, are in conflict with the humanitarian doctrine. (d) Defendant's instruction No. 4 does not assume any essential facts which the jury should have been required to find. (e) Defendant's instruction No. 3 does not undertake to apply the humanitarian doctrine. That instruction is conferred solely to contributory negligence on plaintiff's part. (3) Defendant's instruction No. 2 correctly defines the burden of proof. A similar instruction was approved by the court in Denkman v. Prudential Fixture Co., 289 S.W. 591.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff, as a result of being struck by an automobile belonging to defendant, and being operated at the time, by one of its employees. Plaintiff relied upon defendant's negligence in the following particulars:
1. In driving said automobile at a high and dangerous rate of speed.
2. In failing to drive said automobile as near the right-hand side of Delmar avenue as was practicable.
3. In failing to give any warning signal of the approach of said automobile.
4. In failing to keep a watch ahead for pedestrains on the street, and also, the humanitarian doctrine.
The defendant's answer was a general denial, coupled with a plea of contributory negligence. There was a verdict and judgment for the defendant and plaintiff has appealed, relying for reversal upon the court's action in giving certain instructions on behalf of defendant, to which we will refer later.
The evidence, as offered on the part of the plaintiff, was to the effect that at the time of this accident she was walking along Delmar boulevard in the 6200 block. The accident happened near the intersection of Delmar boulevard and Eastgate avenue, in the city of St. Louis. Delmar runs east and west, and Eastgate runs south and intersects with Delmar boulevard from the north. When plaintiff had reached Eastgate avenue she turned south and attempted to cross Delmar boulevard at the regular crossing place, even with the west curb line of Eastgate avenue. She was crossing Delmar for the purpose of taking an eastbound street car. There are two street car tracks on Delmar. The westbound cars operate on the north tracks, and the eastbound cars on the south tracks. As plaintiff started across Delmar she looked east and saw an automobile about a block away. She said there was no street car ahead of the automobile, and that she saw no other traffic and thought she could get across the street. She had crossed the south track of the eastbound car when she was hit. The street car tracks are located in the center of the street, and she was struck by this automobile as she was stepping across the south rail. In view of the questions raised here, it is unnecessary to refer to her injuries in any manner. She testified that she weighed about one hundred and ninety-eight pounds; that she was facing south when she was struck on the left side; that when she looked east and saw the machine coming she did not see it again, or hear it, until it struck her; that it was the only machine in the street that she saw, going west, and that she did not see a street car going either east or west at that time; that she looked east before crossing the street, and while crossing Delmar she again looked east, and that she was looking all the time she was walking across, until the time she was hit.
One of plaintiff's witnesses testified that he saw the accident; that he was driving an automobile east on Delmar, approaching Eastgate, at the time; that he noticed some cars driving abreast, and it appeared to him that they were very close together; that he noticed a Ford roadster run around a car at Eastgate, and that he saw the plaintiff crossing the street, and that the next thing he knew she was lying in the street. This witness testified that the driver of defendant's automobile refused to give his name, and did not give it until the police arrived; that witness took the license number of defendant's automobile and gave it to plaintiff. The witness further testified that the car which struck plaintiff passed to the left of traffic going west, and struck plaintiff when she was in the eastbound car track. He said he thought there must have been twenty-five or thirty cars going west in the block between Skinker and Eastgate, and that there were cars parked along the curb on the south side of the street; that he saw this Ford swerve and make a side swipe before it struck plaintiff.
The evidence on the part of the defendant, as we gather it from the driver of the Ford car, was that as the driver approached Eastgate avenue he was driving in the street car tracks, and that there were two automobiles and a street car directly in front of him, going west; that he was driving about five miles an hour, because the street car and two automobiles necessitated his traveling at that rate of speed; that he was traveling along the westbound street car tracks because there were automobiles to the right, or north of him, precluding him from driving any closer to the right side of the street. He testified that he first observed plaintiff when she had reached the north rail of the eastbound tracks on Delmar, and at that time she was to the left, or south of him, and not in the range of his line of travel. She was about twenty-five feet away at that time; when she reached the eastbound tracks, and when he was about twelve feet from her, she suddenly turned to the right with the apparent purpose of retracing her steps back to the north side of Delmar. As soon as he saw this he sounded his horn, and plaintiff paused for a moment and then suddenly started for the north side of the street, directly in front of the car. When he saw plaintiff start toward the north, the two automobiles in front of him were turning to the right, into Eastgate avenue; he then blew his horn, thinking she would turn back south, and when they were about three feet apart she...
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