Teague v. Plaza Exp. Co.

• Decision Date: 05 November 1945
• Docket Number: 39377
• Citation: Teague v. Plaza Exp. Co., 354 Mo. 582, 190 S.W.2d 254 (Mo. 1945)
• Parties: Clyde Teague v. Plaza Express Company, a Corporation, and Carl Collier, Appellants
• Court: Missouri Supreme Court

190 S.W.2d 254

354 Mo. 582

Clyde Teague v. Plaza Express Company, a Corporation, and Carl Collier, Appellants

No. 39377

Supreme Court of Missouri

November 5, 1945

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Affirmed.

R F. Baynes and Langdon R. Jones for appellants.

(1) The trial court erred in sustaining respondent's motion for new trial upon the assigned reason that appellants' Instruction 7 D should not have been given; because the evidence did not support submitting to the jury the emergency doctrine. The evidence in the cause, together with the reasonable inference arising therefrom, clearly established that appellants were entitled to submit to the jury the emergency doctrine. Lewis v. Zagata, 166 S.W.2d 541 350 Mo. 446; Menard v. Goltra, 40 S.W.2d 1053, 328 Mo. 368; Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 143, 324 Mo. 544; Mayme v. May Stern Fur. Co., 21 S.W.2d 211; Higgins v. Terminal Railroad Assn., 97 S.W.2d 892, 231 Mo.App. 837. (2) Respondent did not make a submissible case on the humanitarian doctrine. Lotta v. Kansas City Pub. Serv. Co., 117 S.W.2d 296, 342 Mo. 743; Krause v. Pitcairn, 165 S.W.2d 665; Id., 167 S.W.2d 74, 350 Mo. 339; Hendrick v. Kurn, 179 S.W.2d 717, 352 Mo. 848.

Ward & Reeves and Hal H. McHaney for respondent.

(1) Upon appeal from an order granting a new trial after verdict for defendant because of erroneous instructions, in considering the question of whether or not a demurrer should have been sustained to plaintiff's evidence, plaintiff's evidence must be considered in the light most favorable to plaintiff and the defendant's evidence must be disregarded except as it tends to aid plaintiff's case. A demurrer can only be sustained when the facts and circumstances and the legitimate inferences to be drawn therefrom are so strongly against plaintiff's recovery as to leave no room for reasonable minds to differ. Clarke v. Jackson, 116 S.W.2d 122; Perkins v. Terminal Railroad Assn., 102 S.W.2d 919; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Swain v. Anders, 140 S.W.2d 730; Hurst v. Montgomery-Ward & Co., 107 S.W.2d 183; Blunk v. Snider, 432 Mo. 26, 111 S.W.2d 163. (2) Furthermore, when the humanitarian doctrine is relied upon neither the court in ruling on the demurrer or the jury in determining the question of facts submitted are required to gauge with fine accuracy the time and distances or the feet and seconds in determining whether the defendant could have stopped, slackened the speed or given a timely warning. Steger v. Meehan, 63 S.W.2d 109; Swain v. Anders, 140 S.W.2d 730; Johnson v. Scheerer, 109 S.W.2d 1231. (3) The essence of the humanitarian doctrine is: that a defendant in charge of the operation of a dangerous instrumentality such as an automobile truck will be held liable in damages regardless of the contributory negligence of the plaintiff, if the following elements are present as shown by the facts in the case: (1) that the plaintiff was in a position of imminent peril; (2) that the defendant by the exercise of the highest degree of care could have discovered the peril of the plaintiff; (3) that, if the plaintiff's peril became discoverable, the defendant could have averted the accident by use of the means and instrumentalities then and there at hand and without danger to himself or others and (4) that the defendant failed to make use of such means and instrumentalities to avoid the accident. State ex rel. v. Shain, 159 S.W.2d 582; Evans v. Farmers Elevator Co., 147 S.W.2d 593; Blunk v. Snider, 342 Mo. 26, 111 S.W.2d 163. (4) The car in which the deceased was traveling at the time he was killed approached the intersection in question at a high rate of speed of 50 miles per hour, without slackening speed in any way. Such was sufficient to have given the defendant truck driver notice that the driver of such car did not intend to stop prior to entering the intersection. Under such circumstances the defendant had no right to presume that the other driver would stop at the intersection. State ex rel. v. Shain, 159 S.W.2d 582; Brooks v. Menaugh, 284 S.W. 802. (5) The testimony in this case clearly shows that the car in which the deceased husband of plaintiff was traveling at the time of the collision causing his death approached the intersection in question at a rate of speed of not less than 50 miles per hour; that an automobile of the kind in which he was traveling, under all of the conditions then existing, could not have been stopped within less than 175 or 189 feet. Under such circumstances, the plaintiff's zone of peril discoverable to the defendant extended 175 to 189 feet from the intersection. State ex rel. v. Shain, 159 S.W.2d 582; State ex rel. v. Hostetter, 101 S.W.2d 56; Sullivan v. Union Electric, 331 Mo. 1065, 56 S.W.2d 97; Vowels v. Mo. Pacific R. Co., 8 S.W.2d 7; Brown v. Kurn, 161 S.W.2d 421; Inman v. Walter Freund Bread Co., 58 S.W.2d 481; Elkins v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327. (6) Under the facts and circumstances of this case the question of whether or not the truck driver could have avoided the injury complained of by either stopping his truck, slackening the speed thereof or giving a timely warning were matters for the determination of a jury and the demurrer in favor of Plaza Express Company and Carl Collier was properly overruled. White v. Teague and Plaza Express Co., 182 S.W.2d 288, 177 S.W.2d 517; Brown v. Kurn, 161 S.W.2d 421; State ex rel. v. Shain, 159 S.W.2d 582; White v. Kansas City Pub. Serv. Co., 149 S.W.2d 375; Zickefoose v. Thompson, 148 S.W.2d 785; Beuhler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Perkins v. Term. Ry. Assn., 102 S.W.2d 915; State ex rel. v. Hostetter, 101 S.W.2d 56; Elkins v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; Inman v. Freund Bread Co., 58 S.W.2d 481; Sullivan v. Union Electric, 331 Mo. 1065, 56 S.W.2d 97; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 97; Vowels v. Mo. Pacific R. Co., 8 S.W.2d 7; Sullivan v. Atchison, T. & S.F. Ry. Co., 317 Mo. 996, 297 S.W. 945; Burke v Papas, 293 S.W. 142; Brooks v. Menaugh, 284 S.W. 803; Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327; Hammond v. Emery-Bird-Thayer, 240 S.W. 170; Bramlet v. Harlow, 75 S.W.2d 632; Mattocks v. Emerson Drug Co., 33 S.W.2d 142. (7) Defendant's statement against interest by deposition inconsistent with the explanation testified to by him as witness in his own behalf was substantive proof and it was a proper question for the jury to determine which of his statements was true. Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400. (8) The trial court properly ruled upon defendant's Instruction 7 D and properly granted plaintiff a new trial because of the giving of such erroneous instruction. There were no evidentiary facts upon which to base said instruction. Shaw v. Fulkerson, 96 S.W.2d 495; Lewis v. Zagata, 166 S.W.2d 541. (9) Under the admitted facts in this case, if any emergency was created, it was due to the humanitarian negligence of the defendant in failing to keep a look out at a public road crossing in time to have observed the deceased in a place of discoverable peril. Hall v. St. Louis-S.F. Ry. Co., 240 S.W. 175; Shaw v. Fulkerson, 96 S.W.2d 495. (10) Said instruction is erroneous because it only requires a finding that Carl Collier "believed that the driver of the Teague car would stop . . . and that by reason thereof, defendant Carl Collier, continued to operate the truck along Highway No. 61 in a north bound direction." Such instruction does not properly embody constructive knowledge of the defendant as a proper element of humanitarian negligence. Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Gavin v. Forrest, 72 S.W.2d 177. (11) Said instruction improperly limits the zone of peril by the use of the following language: "and if you further find that at the time the driver of the Teague car drove her automobile in close proximity to said intersection . . . and if you further find that at that moment the truck being operated by defendant Carl Collier was in such close proximity to said intersection as to produce in the mind of the said Carl Collier great mental stress, etc." Collins v. Beckmann, 79 S.W.2d 1052. (12) Said instruction is further erroneous in that it does not require the proper degree of care of the defendant, namely: the highest degree of care or the care of a very prudent person. R.S. 1939, sec. 8383; Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 59, 322 Mo. 778; Shaw v. Fulkerson, 96 S.W.2d 495; Gavin v. Forrest, 230 Mo.App. 662, 72 S.W.2d 177. (13) Said instruction is further erroneous because it contains a sole cause paragraph without specifying the negligent acts of the deceased, or of a third person relied upon to constitute the sole cause of his death. Lewis v. Zagata, 166 S.W.2d 541; Engleman v. Railway Express Agency, 100 S.W.2d 540. (14) Said instruction is further erroneous in that it refers to instructions given in behalf of plaintiff as "plaintiff's instructions" without further identification.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action to recover $ 10,000 damages for the death of plaintiff's husband. The jury returned a verdict for defendants, but the trial court sustained a motion for a new trial. Defendants have appealed.

Respondent-plaintiff's husband, H. M. Teague, was killed in the collision of a Chevrolet sedan, in which he was riding and which was driven by his (and plaintiff's) daughter, and a semi-trailer truck owned by defendant Plaza Express Company and driven by defendant Carl Collier. Heretofore appellate courts have reviewed other cases arising out of the tragedy. See White v. Teague, Mo. App., 177 S.W. 2d...