Ukman v. Hoover Motor Exp. Co.

• Decision Date: 14 June 1954
• Docket Number: No. 43862,No. 1,43862,1
• Parties: UKMAN v. HOOVER MOTOR EXPRESS CO., Inc., et al
• Court: Missouri Supreme Court

Page 35

269 S.W.2d 35

UKMAN v. HOOVER MOTOR EXPRESS CO., Inc., et al.

No. 43862.

Supreme Court of Missouri, Division No. 1.

June 14, 1954.

Lashly, Lashly & Miller and John H. Lashly, St. Louis, for appellants.

Mortimer A. Rosecan, Charles E. Gray, St. Louis, for respondent.

COIL, Commissioner.

Defendants-appellants have appealed from a judgment for $15,000 entered on plaintiff-respondent's verdict in his claim for damages for personal injuries allegedly sustained when plaintiff's station wagon traveling east on Pine Street in St. Louis, was struck by defendant Hoover's tractor-trailer being driven north on 21st Street by Hoover's employee, defendant Rock. Defendants contend that plaintiff failed to make a submissible case, that the court erred in giving an instruction, and that the judgment is excessive.

Plaintiff, who chose to submit his case to the jury solely on defendants' alleged humanitarian negligence in failing to stop, contends that defendants have failed to preserve for appellate review the issue of submissibility. At the close of plaintiff's evidence, defendants' motion to dismiss was overruled. Defendants adduced evidence and, at the close of all the evidence, did not file a motion for directed verdict. In an after-trial motion the trial court was asked to set aside plaintiff's verdict and judgment and to enter judgment for defendants in accordance with defendants' motion for directed verdict filed at the close of plaintiff's case, on the ground that plaintiff had failed to make a submissible case. Defendants' motion for new trial contained no reason which related to or suggested the failure of plaintiff to make a case for the jury.

Thus defendants not only failed to move for a directed verdict at the close of all the evidence but also failed in any after-trial motion to complain of the action of the trial court in submitting the case to the jury at the close of all the evidence. Section 512.160, subd. 1, RSMo 1949, V.A.M.S. provides that except for the questions of jurisdiction over the subject matter and as to failure of a pleading to state a claim upon which relief can be granted 'no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.' Section 510.290 provides in effect that if a motion for directed verdict is made at the close of all the evidence and is not granted, the party who has so moved may within ten days move to have the verdict and judgment set aside in accordance with his motion for directed verdict. Section 510.310, subd. 4 provides that on appeal in cases tried without a jury 'The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court.' (A provision not incorporated in Sec. 510.290, supra.) It appears from the foregoing statutory provisions that it is necessary in jury-tried cases, in order to preserve the question of submissibility for appellate review, to file a motion for directed verdict at the close of all the evidence and to assign the error of the court in having failed to have directed such a verdict in an after-trial motion, either one for a new trial or one to set aside a verdict and judgment and enter judgment for the opposite party.

We have found no case which has ruled a situation precisely like the instant one. The decided cases involving somewhat analogous problems, deal with situations in which the trial court has been given some opportunity to rule the question of whether plaintiff made a submissible case at the close of all the evidence, either on a motion for directed verdict filed at the close of all the evidence, or on an after-trial motion specifically raising the issue. See: Clay v. Owen, 338 Mo. 1061, 1064, 93 S.W.2d 914, Rogers v. Poteet, 355 Mo. 986, 998, 199 S.W.2d 378, 386; Oganaso v. Mellow, 356 Mo. 228, 231, 201 S.W.2d 365, 366[2-4]; Johnson v. Kansas City Public Service Co., 358 Mo. 253, 257, 214 S.W.2d 5, 8[3-5]; Hauber v. Gentry, Mo.Sup., 215 S.W.2d 754, 759; Bailey v. Interstate Airmotive, 358 Mo. 1121, 1128, 219 S.W.2d 333, 335, 336, 8 A.L.R.2d 710; Hughes v. St. Louis Nat. League Baseball Club, 359 Mo. 993, 997, 224 S.W.2d 989, 992[4, 5], 16 A.L.R.2d 904; Nelson v. Kansas City, 360 Mo. 143, 147, 148, 227 S.W.2d 672, 673, 674; Wood v. St. Louis Public Service Co., Mo.Sup., 228 S.W.2d 665, 666; Wilhelm v. Haemmerle, Mo.Sup., 262 S.W.2d 609, 611; Silberman v. Hicks, Mo.App., 231 S.W.2d 283, 285.

In the instant case, however, defendants' assignment of error in their motion for new trial, as carried forward in their brief on appeal, pertaining to instruction 1, is that there was no evidence to support that part of plaintiff's humanitarian instruction which hypothesized that plaintiff was in a position of imminent peril at a time when defendant Rock thereafter could have stopped his truck and avoided the accident. Thus, the question of submissibility as to that issue must be decided in determining defendants' claim of error as to instruction 1. In view of our conclusion that the instruction was not erroneous--in other words, that there was sufficient evidence to justify that portion of plaintiff's instruction 1 mentioned above--we need not decide whether defendants' failure to properly preserve the question of submissibility for appellate review would prevent our examination thereof, or would require in this case, or if not, in what cases, the application of Supreme Court Rule 3.27, 42 V.A.M.S. The provisions of the Code relating to the manner in which the submissibility question may be preserved for appellate review seem clear and explicit. Questions on appeal pertaining to alleged failure to properly preserve the issue of submissibility for appellate review are obviated by compliance with those provisions.

In determining whether there was evidence to support the hypotheses that, after plaintiff came into a position of imminent peril, defendant Rock could have stopped and thereby could have avoided the collision, we review the evidence from a standpoint favorable to plaintiff and give him the benefit of any part of defendants' evidence favorable to him, not contradicted by plaintiff's own testimony and not contrary to plaintiff's fundamental theory, and we give plaintiff the benefit of all reasonable inferences from all the evidence, and disregard all of defendants' unfavorable evidence. Smithers v. Barker, 341 Mo. 1017, 1023, 111 S.W.2d 47, 50[1, 2].

Such a review of the evidence discloses that a jury reasonably could find these facts: that the front bumper of defendants' tractor-trailer, weighing, as loaded, 40,000 pounds, struck plaintiff's station wagon at the door thereof when the station wagon was proceeding eastwardly two feet south of the center of Pine Street and when the station wagon's front was one foot east of the wast curb line of 21st Street; that when the front of the station wagon reached a place about 50 feet west of where it was at collision time, the station wagon's speed had been decreased from 20 to 25 m.p.h. to 15 m.p.h. and that its speed was there accelerated to 17 or 18 m.p.h., and that from such point (about 50 feet to the west) plaintiff traveled to where it was at collision time at an average speed of 17 m.p.h.; that it took plaintiff two seconds to travel the distance from such point to the place where the station wagon was at the time of the collision; that Rock, at the time plaintiff was at the place mentioned (about 50 feet to the west), was driving the tractor-trailer north on 21st Street at a speed of 5 m.p.h., so that at the time plaintiff was at the place about 50 feet to the west, the tractor-trailer had to be 14.5 feet south of the collision point; that Rock by actual experiment (not by estimate) could stop the tractor-trailer he was then driving, loaded as it was and under the street and weather conditions existing at the time of the accident, traveling at 5 m.p.h. in a total distance of 10 feet, including reaction time; that plaintiff did not see defendants' truck approaching Pine Street and was not aware of its proximity until an instant prior to impact; that Rock, in the exercise of the highest degree of care, could have been plaintiff's station wagon when it was at a place before it reached the place about 50 feet west of the collision, point; that it required at least 31 feet, including reaction time, for plaintiff to stop his station wagon under the conditions existing at the time of the collision; that if Rock, in the exercise of the highest degree of care, had seen plaintiff's station wagon as it approached and when it reached the place about 50 feet west of the collision point, he would have observed that plaintiff slowed to a speed of 15 m.p.h., looked to his right and left, immediately accelerated to 17 or 18 m.p.h., and continued eastwardly in the same position and in a straight line toward the intersection; that when the front of the station wagon reached a point 31 feet to the west of the path of the other vehicle and at least 38 feet west of the place where the front of the station wagon was at the time of the collision, plaintiff had proceeded to the point in his approach after which he could not stop his station wagon short of the path of defendants' vehicle.

'Under the humanitarian doctrine no duty to act was imposed on defendant until a situation of imminent peril came into existence.' Yeaman v. Storms, 358 Mo. 774, 778, 217 S.W.2d 495, 498.

When, under the particular facts of this case, did Rock have a duty to act? We agree with defendants that the evidence did not warrant a finding that Rock knew, or in the exercise of the highest degree of care should have known, that plaintiff was oblivious of the approach of defendants' tractor-trailer so that, by reason of plaintiff's obliviousness, his zone of imminent peril was extended back to the west beyond the place where the station wagon arrived at the...