Welch v. McNeely

• Decision Date: 12 July 1954
• Docket Number: No. 43953,No. 2,43953,2
• Parties: WELCH v. McNEELY
• Court: Missouri Supreme Court

Page 871

269 S.W.2d 871

WELCH v. McNEELY.

No. 43953.

Supreme Court of Missouri, Division No. 2.

July 12, 1954.

Dearing & Matthes, Will B. Dearing, Hillsboro, for appellant-respondent.

Moser, Marsalek, Carpenter, Cleary & Carter, F. X. Cleary, St. Louis, Paul E. Fitzsimmons, St. Louis, for respondent.

STONE, Special Judge.

Plaintiff, Leslie L. Welch, sought in this action to recover $10,000 for personal injuries and property damage alleged to have resulted from a collision on U. S. Highway 61 south of St. Louis about 5:45 P.M. on May 25, 1951, between plaintiff's 1951 Mercury automobile and defendant's 1950 Ford automobile. Defendant interposed a counterclaim for $1,325. Upon trial, plaintiff's case was submitted solely upon defendant's alleged negligence under the humanitarian doctrine in failing to stop. The jury returned a verdict for defendant on plaintiff's cause of action and for plaintiff on defendant's counterclaim. Both paties appealed; but, defendant's appeal from the judgment against him on his counterclaim having been dismissed, the cause is presented on plaintiff's appeal alone.

Plaintiff, 6l years of age, parked his automobile, headed west, in a graveled areaway in front of the Pevely Rendezvous, a restaurant situated about 50 to 60 feet west of U. S. Highway 61, which at that point has a concrete roadway, four lanes and approximately 40 feet in width, and runs in a general northerly and southerly direction. Plaintiff said that, when he left the Pevely Rendezvous after eating, he backed his automobile a short distance, turned to his right or north, passed between the filling station (which was north of the restaurant building and some 20 feet closer to Highway 61) and pumps in front of its, turned again to his right or toward the east, and stopped with the front end of his automobile 'bearing a little left or north' about one foot west of the west edge of the concrete roadway 'to see if the highway was clear'. Plaintiff's version of the accident was that, with unobstructed vision of 500 to 600 feet to the top of the slight upgrade to the north, he looked in that direction, saw no approaching vehicles, and started onto the highway at 'a slightly north angle' with the intention of crossing the two south-bound lanes on the west side of the center line and then proceeding north in the inside north-bound lane east of the center line; that, when he was 'in the first lane west' (i. e., the outside southbound lane), he observed for the first time defendant's south-bound automobile which was then 500 to 600 feet north of him and also in the outside south-bound lane; that plaintiff proceeded on his course, attaining a speed of not more than 12 miles per hour at the time of collision; that, when defendant's automobile was about 100 feet north of the point of accident, defendant swerved to his left 'toward the center of the road'; and that, when the left front wheel of plaintiff's automobile was at the center line of the highway with the automobile headed 'very much to the north', the right front portion of defendant's automobile struck the left front portion of plaintiff's automobile.

Defendant's version of the accident was that he was driving in a southerly direction at a speed of 40 to 45 miles per hour; that, after passing around a south-bound tractor-trailer unit (which was in the outside south-bound lane) about 500 feet north of the point of collision, defendant pulled back into the outside south-bound lane in front of the tractor-trailer unit; that, when about 150 feet north of the point of impact, defendant first saw plaintiff's automobile then about 20 feet west of the west edge of the pavement; that plaintiff was driving very slowly--'I would say he (plaintiff) started about at 5 miles an hour'; that defendant immediately began 'easing to the left' so that, when defendant's automobile was some 15 to 20 feet from the point of collision, it had 'eased' into the inside south-bound lane; that plaintiff did not stop before entering the highway; that, 'when I (defendant) was about 20 feet from him (plaintiff), he pulled out directly in front of me'--'when he (plaintiff) pulled out there, hit the pavement, I was 20 feet away'; that defendant then 'went for the brakes'; and that, when plaintiff's automobile 'was between the first lane and the second lane' (i. e., between the outside and inside south-bound lanes), the right front portion of defendant's automobile struck the whole left front fender of plaintiff's automobile.

Roy D. Graham, a witness for defendant, testified that, immediately prior to the collision, he had been traveling in the inside south-bound lane about 90 feet behind defendant's south-bound automobile, which was in the same lane; that both witness Graham and defendant were traveling about 45 miles per hour; that, as defendant's automobile was passing around the south-bound tractor-trailer unit (then in the outside south-bound lane), and when defendant's automobile was about 20 feet from plaintiff's automoble, the latter 'pulled out in the highway'; that the tractortrailer unit, traveling 35 miles per hour, swerved to the righthand or west shoulder; and, that the collision between defendant's and plaintiff's automobiles occurred in the inside south-bound lane.

Other than his attending physician, the only witness called by plaintiff was Victor Myerscough, a brake mechanic, who testified as an expert on direct examination that, under the conditions existing at the scene of accident and 'taking into consideration the reaction period', defendant's 1950 Ford automobile traveling at 50 miles per hour could have been stopped in 'right at 165 feet' and, traveling at 60 miles per hour, could have been stopped in 225 feet; and that, when traveling at 50 miles per hour, 'you would go about 50 feet before you would get the brakes on'. On cross-examination, witness Myerscough expressed the opinion that plaintiff's automobile traveling at a speed of 5 miles per hour could have been stopped in 6 or 7 feet.

The theory, upon which plaintiff tried and submitted his case to the jury was (as plaintiff's counsel, in their statement of facts, said in epitomizing plaintiff's petition) that 'after he got onto Highway 61 he became in a position of imminent peril of being struck and collided with' and (as stated in the language of plaintiff's only verdict-directing instruction) 'that the plaintiff upon driving onto said Highway 61 became and was in a position of imminent peril of being struck and injured by the automobile being driven by the defendant' and that thereafter defendant 'saw, or by the exercise of the highest degree of care on his part could have seen, plaintiff's automobile * * * in a position of imminent peril * * * in time thereafter with the means and appliances, at hand, and with reasonable safety to his automobile and the occupants thereof to have stopped his automobile, and thus and thereby have avoided the collision'. By submitting his case on the sole ground of alleged humanitarian negligence in failing to stop, plaintiff abandoned all other grounds of negligence alleged in his petition, Wright v. Quattrochi, 330 Mo. 173, 49 S.W.2d 3, 7-8(5); Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335, 338(7); Henry v. First Nat. Bank of Kansas City, 232 Mo.App. 1071, 115 S.W.2d 121, 127(1); and, since plaintiff's theory in the trial court, as submitted in his only verdict-directing instruction, was that plaintiff came into a position of imminent peril 'upon driving onto said Highway 61', plaintiff is restricted and held on appeal to the same theory, Pienieng v. Wells, Mo., 271 S.W. 62, 66(3); State ex rel. Athletic Tea Co. v. Cameron, 216 Mo.App. 683, 273 S.W. 746, 748(6), in keeping with the long-established and salutary principle that this court will review a case only upon the same theory upon which it was submitted in the trial court, Nance v. Atchison, T. & S. F. R. Co., 360 Mo. 980, 232 S.W.2d 547, 551(2); Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570, 575(11); Hutchison v. Thompson, Mo., 175 S.W.2d 903, 905(3); Stoll v. First Nat. Bank of Independence, 345 Mo. 582, 134 S.W.2d 97, 98(1, 2). We cannot consider this case, as plaintiff now urges us to do, on the theory that he came into a position of imminent peril before 'driving onto said Highway 61', although it may be added that, upon the record, it would be difficult to justify broadening the zone of imminent peril very far, if at all, beyond and outside the highway ¹.

Plaintiff's first assignment is that the court erred in giving defendant's Instruction 3, which is as follows:

'The Court instructs you that if you believe and find that at the time plaintiff's automobile entered a position of imminent peril the defendant could not, by the exercise of the highest degree of care, have prevented the collision by stopping his automobile, then, and in such event, plaintiff is not entitled to recover on his cause of action and you will find your verdict in favor of the defendant on plaintiff's cause of action.'

In a humanitarian case, "the defendant can either submit the exact converse of plaintiff's humanitarian submission, or of any essential element thereof, or he can submit facts (shown by his evidence) which would disprove one or more of the basic facts of plaintiff's humanitarian submission". Colvin v. Mills, 360 Mo. 1181, 232 S.W.2d 961, 966(3); Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, 750(8). Although sometimes expressed in slightly different language, cf. State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582, 585(2), it has been settled in Missouri, since the classic decision in Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484(2), that the essential elements or basic facts of 'a cause of action under the humanitarian rule, stated in their simplest terms, * * * are contained in this formula: '(1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to...