Tyson v. Bernhard

• Decision Date: 29 March 1929
• Citation: 17 S.W.2d 270,322 Mo. 633
• Parties: Alfred J. Tyson, Appellant, v. Charles W. Bernhard and John L. Behan, Doing Business Under Name of Bernhard & Behan Drayage Company
• Court: Missouri Supreme Court

17 S.W.2d 270

322 Mo. 633

Alfred J. Tyson, Appellant, v. Charles W. Bernhard and John L. Behan, Doing Business Under Name of Bernhard & Behan Drayage Company

Supreme Court of Missouri

March 29, 1929

Motion for Rehearing Overruled May 18, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Reversed and remanded.

Benjamin Wolf and John P. Griffin for appellant.

(1) The plaintiff was in the street working at his car when struck by the defendants' truck. He submitted his case to the jury on the humanitarian doctrine, and the court erroneously gave at the request of the defendant, Instruction 6, which countered that doctrine and told the jury "that after the defendants' truck was so struck, if you so find, the said Edward Gruenewald could not, in the exercise of the highest degree of care, avoid striking the plaintiff, then your verdict must be for the defendant." In other words defendants did not have to do anything to avoid injuring the plaintiff, although they saw him in the street in close proximity to their truck until after the other truck hit theirs even though they knew, or should have known, that it was about or liable to collide with theirs. This court has held such an instruction to constitute reversible error. Burke v. Pappas, 293 S.W. 146; Goodwin v. Eugas, 290 Mo. 673; Abramowitz v. Railroad, 214 S.W. 119; Vaille v. Lutz, 269 S.W. (Mo. App.) 947; Charr v. McLoon, 304 Mo. 238. (a) If there was a collision between the defendants' truck and the other truck it was the duty of the defendant to see the other truck and anticipate the injury to the plaintiff before the alleged collision took place and thus avoid the alleged collision with the other truck and the injury to the plaintiff. The defendants' driver was charged with the duty to look to the sides as well as ahead and observe traffic conditions and see what he should have seen, and this failure was the direct cause of the injury to the plaintiff. Hornbuckle v. McCarty, 295 Mo. 162; Myers v. Kennedy, 306 Mo. 268. (b) This instruction conflicts with the principal instruction given for the plaintiff in that the instruction for the plaintiff tells the jury that it was the duty of the defendant to do certain things to avoid hitting the plaintiff, and this instruction tells the jury that it was not until after the alleged collision. Bussey v. Don, 259 S.W. 792. (2) It was reversible error to exclude the plaintiff's evidence in rebuttal showing that defendants' driver failed to give a signal, and the position of the truck, its speed, and the entire surroundings, so that the jury could determine whether the alleged collision occurred, and if so, where, and finally determine the most important question in the case, namely, whether the defendants' driver could have avoided hitting and injuring the plaintiff. Wellman v. Railroad, 183 Mo.App. 642; Kalver v. Railroad, 166 Mo.App. 198; Parris v. Railroad, 227 S.W. (Mo. App.) 1071; Dean v. Wabash Railroad, 220 Mo. 425. (3) It was error to admit the voluntary statement of the defendants' driver -- made to the driver of the truck with which he had the alleged collision after the accident happened, and after the defendants' driver had ample time for deliberation. This was not a part of the res gestae. Redmon v. Railroad, 185 Mo. 1; Koenig v. Union Depot Co., 173 Mo. 698; Laudau v. Travelers' Ins. Co., 267 S.W. 377.

Bryan, Williams & Cave for respondents.

(1) The instruction, when read as a whole, at the outset, in most specific terms, requires the jury to find that the defendants' driver, at the time of the accident, was driving his truck eastwardly and that, in so doing, "he was exercising the highest degree of care and that, as he was passing the plaintiff, the left front wheel of defendants' automobile was struck by another automobile so as to cause the defendants' automobile to swerve suddenly and sharply to the right." The instruction, by these words, requires the jury to find that the defendants' driver was exercising the highest degree of care and requires them to find that he was passing the plaintiff, and then the instruction goes further and requires the jury to find that but for being so struck by the other automobile, "the defendants' automobile would not have come in contact with the plaintiff," and then the instruction further requires the jury to find that after the defendants' automobile was so struck by the other automobile it was impossible, in the exercise of the highest degree of care, to avoid striking plaintiff. (2) What plaintiff sought to show in rebuttal he should have shown in sustaining his case in chief, on the issue as to how the accident happened. Jackson v. Railway Co., 118 Mo. 199; Feary v. Met. St. Ry. Co., 162 Mo. 75. This evidence offered by way of rebuttal was but cumulative of what was or what should have been offered in the plaintiff's case in chief. (3) Appellant complains of the admission in evidence of certain statements of defendants' driver as a part of the res gestae. These statements were made immediately after the accident, as the defendants' driver stopped his machine, jumped to the ground and while plaintiff was still lying in the street, and they were made as part of an effort by the defendants' driver to get someone to help him carry the plaintiff to the hospital and in that effort defendants' driver called to the driver of the gasoline truck. Then the two of them, probably assisted by a third party, carried the plaintiff to the hospital. The question of the defendants' driver and the answer of the driver of the gasoline truck were clearly a part of the res gestae. Chawkley v. Wabash, 297 S.W. 20; Woods v. Bridge Term. Ry. Co., 8 S.W.2d 922; Rosenweig v. Wells, 308 Mo. 617.

OPINION

Gantt, J.

This is a suit for damages for personal injuries in the sum of $ 15,000. The petition contains many charges of negligence, but the case was submitted to the jury on instructions covering the humanitarian doctrine and the measure of damages. The answer was a general denial. Judgment was for defendants, and plaintiff appealed.

The facts are as follows: On June 21, 1924 plaintiff was driving his automobile east on Lawton Avenue, in the city of St. Louis, and when about 200 feet east of Garrison, an intersecting Avenue, the left rear tire on his car became punctured, and he pulled to the south curb to change the tire. Lawton Avenue is about forty feet wide, and at the time and place mentioned cars were parked on the north and south sides of the street. While plaintiff was changing the tire, defendants' truck was moving east on Lawton Avenue toward Garrison. The driver testified he saw plaintiff at work on his car and blew the whistle of the truck as he (the driver) approached Garrison Avenue. He testified he again blew the whistle as the truck passed over Garrison Avenue. Thereafter no warning was given of the approach of the truck, although plaintiff continued at work on his car in full view of the driver until the truck struck him. The driver further testified that just after passing over Garrison Avenue the truck was moving east about six or eight feet from the south curb until it reached a point about eighty feet west of plaintiff; that he then turned the truck to the left until it was moving, when straightened out, about ten or twelve feet from the south curb; that at this distance from the curb, the...