Wallace v. St. Joseph Ry., Light, Heat & Power Co.

• Citation: 77 S.W.2d 1011,336 Mo. 282
• Parties: Mildred Wallace, by Next Friend, Ernest J. Kreder, v. St. Joseph Railway, Light, Heat & Power Company, Appellant
• Decision Date: 07 January 1935
• Court: United States State Supreme Court of Missouri

77 S.W.2d 1011

336 Mo. 282

Mildred Wallace, by Next Friend, Ernest J. Kreder, v. St. Joseph Railway, Light, Heat & Power Company, Appellant

Supreme Court of Missouri

January 7, 1935

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Reversed and remanded (with directions).

Mayer Conkling & Sprague for appellant.

(1) The evidence failed to show (1) that deceased was in a position of peril, (2) that defendant had either actual or constructive notice that the deceased was in a position of peril, (3) that defendant failed in any duty whatever. The case, therefore, should not have been submitted to the jury. Ziegelmeier v. Ry. Co., 330 Mo. 1013, 51 S.W.2d 1027; Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600. (2) The plaintiff having failed to prove the violation of any duty on the part of defendant, the case should not have been submitted to the jury, and, therefore, regardless of whether or not the court had incorrectly ruled in admitting evidence of drunkenness, the court erred in granting a new trial because of said ruling. Markowitz v Met. St. Ry. Co., 186 Mo. 351; Halverson v. Ry. Co., 157 Mo. 252. (3) There was no error in permitting defendant to show to the jury that the deceased, the driver of the car, and his two companions were drunk. (a) The defendant had the right, until it saw or should have seen deceased in a position of peril and oblivious thereof, to presume that deceased would conduct himself with ordinary prudence; it is defendant's position that, until almost the very instant that deceased drove the automobile headlong into the bus, the deceased was not in a place of peril; that defendant had no reason to anticipate that the automobile would not be slowed down, or turned to the right or to the left; no reason to believe the Ford would be driven into the side of the bus; in determining whether the deceased was in a place of peril, within the meaning of the law, or whether from a place of perfect safety he rushed into the peril, making a collision unavoidable regardless of what defendant might or might not have done, the jury were entitled to know everything constituting the res gestae of the case, including any abnormal mental condition, such as the intoxication, of deceased. Griffin v. Wood, 105 A. 354; Wigginton's Admr. v. Rickert, 217 S.W. 933; Henson v. Warren, 274 S.W. 185; Limbaugh v. Forum Lunch Co., 258 S.W. 451. (b) The petition alleged as a breach of duty that the defendant failed to warn deceased after it saw him in a position of peril; the evidence was admissible to be considered in determining whether or not a warning would have had any tendency to change the course of deceased. (c) The suit was for a penalty of from $ 2,000 to $ 10,000, to be fixed in the discretion of the jury. Sec. 3262, R. S. 1929. In exercising that discretion, the jury were entitled to know all of the facts and circumstances. Grier, Admr., v. Ry. Co., 286 Mo. 523; Ward v. Ry. Co., 311 Mo. 108.

Shultz & Owen for respondent.

(1) The demurrer was properly overruled. In passing upon demurrer the court will select the most favorable testimony from both sides of the case. In other words, the court will have due regard for the right of the jury to have believed a part and disregarded another part of the testimony of any witness. Gould v. Railroad, 315 Mo. 723; Irvin v. Kelting, 46 S.W. 927; Phillips v. Henson, 30 S.W.2d 1069; Burke v. Pappas, 293 S.W. 146; Shumate v. Wells, 9 S.W.2d 635; Parsons v. Himmelsbach, 68 S.W.2d 845; Cain v. St. Louis Pub. Serv. Co., 59 S.W.2d 735; Gray v. Columbia Terminals Co., 52 S.W.2d 812; Todd v. Ry. Co., 37 S.W.2d 561; Erxleben v. Kaster, 21 S.W.2d 197. (2) This court has held that "drunkenness excuses neither a crime nor a negligent act." The only issue in last chance is, was deceased in a position of peril or about to be placed in a position of peril? It is immaterial what brought about that situation. Drunkenness instead of being a defense in last chance would if it existed and was known to defendant's driver place a higher degree of care upon him to discover that deceased was in or about to be in a place of peril. In other words, defendant's driver could not indulge in the presumption that deceased if intoxicated would not place himself in place of peril. Murphy v. Quick Tire Service, 47 S.W.2d 202; Hains v. Ry. Co., 198 Mo.App. 462; Banks v. Morris, 257 S.W. 484; Schulz v. Smercina, 1 S.W.2d 120; Silliman v. Laundry Co., 44 S.W.2d 163; Gray v. Terminals, 52 S.W.2d 813; Shumate v. Wells, 9 S.W.2d 635; Boland v. Ry. Co., 284 S.W. 145; Murphy v. Ry. Co., 228 Mo. 82; Hencke v. Ry. Co., 72 S.W.2d 800; State v. Ramsey, 82 Mo. 137; State v. Brown, 181 Mo. 211; State v. Dearing, 65 Mo. 530; McGowan v. Wells, 24 S.W.2d 638; Buddenberg v. Trans. Co., 108 Mo. 400. (3) Instructions K and L told the jury defendant's driver was not required to act until deceased was placed in "certain danger." In last chance this court has ruled it was the duty of defendant's driver upon the first appearance of danger to take some action to avoid injury. The term "imminent" is defined by standard dictionaries to mean "pending or threatened," not "certain" as defined by appellant. Hawken v. Schwartz, 72 S.W.2d 879; Hencke v. Ry. Co., 72 S.W.2d 800.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Plaintiff, widow of Harry Wallace, deceased, sued to recover the statutory $ 10,000 penalty for the death of her husband, alleged to have been caused by the negligence of the defendant. Upon trial there was a verdict for the defendant. The circuit court sustained plaintiff's motion for new trial and from that order the defendant appealed.

Defendant operates a passenger bus transportation system in St. Joseph, Missouri. In the afternoon of October 7, 1930, the deceased, Harry Wallace, with two other young men, was driving northward in an old Ford automobile on Twelfth Street in St. Joseph, and crashed into the side of one of defendant's busses in the intersection of Francis and Twelfth Streets. He received injuries from which he died shortly afterwards. Francis Street runs east and west Twelfth Street north and south, intersecting at right angles. Francis Street is fifty feet wide between property lines and twenty-nine and a half feet wide from curb to curb. Twelfth Street is sixty feet wide between property lines and about thirty-five and a half feet wide from curb to curb. Defendant's bus was going east in Francis Street. The deceased, as stated, was driving north in Twelfth Street and ran into the bus when the latter was at about the center of the intersection, striking it on its right (south) side, just back of the front door. The front edge of the door was five or six feet from the front end of the bus. The accident happened in the daytime and there is no evidence indicating that there were vehicles or other objects in either street to interfere with the sight of either driver as they respectively approached the intersection. Witnesses said that deceased was driving "fast" or "very fast" but without estimating his speed in miles per hour. The evidence indicates that he was racing with another Ford car which was a short distance ahead of him, and which "shot through" the intersection ahead of the bus, and that he made no effort to slacken his speed or to swerve his car as he approached the point of collision. Estimates of the witnesses varied as to how far deceased's car was behind the other Ford when the latter passed through the intersection. Some placed it as close as twenty feet or so, others at points a hundred feet or more distant. The speed of the bus is not shown nor was there any evidence as to the distance in which it could have been stopped or its speed appreciably slackened. One of plaintiff's witnesses, a Mrs. Schellhorn, who was a passenger on the bus, seated in the third seat from the front on the south side, that from which deceased approached, saw the approaching car and saw it strike the bus. She said that the bus "slowed up" and "was stopping" before the collision occurred and "it stood still when the Ford hit, as far as I know." She was the only witness who testified as to whether or not the bus slackened speed before the collision or as to when it stopped. There was no evidence as to when the bus driver first applied his brakes. He was not called as a witness nor were either of the two young men who were with Wallace at the time, both of whom, though injured, survived the accident.

Plaintiff's case is based on the humanitarian doctrine. She alleged in her petition that defendant's driver saw or in the exercise of the highest degree of care could have seen Wallace in a place of peril in time by the exercise of the highest degree of care to have avoided the collision by giving a warning signal or by slowing down or stopping the bus and negligently failed to do so. She submitted the case to the jury, however, on but one specification of negligence, viz., -- failure of the bus driver to "check" the speed of the bus.

Over plaintiff's objections defendant's counsel was permitted to state to the jury in his opening statement that he expected to prove that deceased and his two companions had been drinking intoxicating liquor the afternoon of the accident and were drunk when the accident occurred and to introduce evidence tending so to show. When that evidence was offered plaintiff objected to it on the ground that the case was based solely on the humanitarian doctrine and that whether or not the deceased had been at the time in question under the influence of liquor "is not a defense in this case, . . . has no bearing on the case from any angle, and is therefore incompetent, irrelevant and immaterial." The objection was overruled and the evidence was admitted. The circuit...