White v. Kansas City Public Service Co.

• Decision Date: 04 March 1946
• Citation: 193 S.W.2d 60,239 Mo.App. 571
• Parties: Jesse (Jack) White, v. Kansas City Public Service Company, a corporation
• Court: Kansas Court of Appeals

193 S.W.2d 60

239 Mo.App. 571

Jesse (Jack) White, v. Kansas City Public Service Company, a corporation

Court of Appeals of Missouri, Kansas City

March 4, 1946

Appeal from Jackson County Circuit Court; Hon. Thomas J. Seehorn Judge.

Reversed and remanded.

Charles L. Carr, John W. Moore, Alvin C. Trippe, Hale Houts, Hogsett Trippe, Depping and Houts, for appellant.

(1) The court erred in giving plaintiff's Instruction 1. The instruction erroneously authorized a verdict for plaintiff as for negligent failure of the bus operator to stop, although there was no evidence that the operator could have stopped in the circumstances submitted by the instruction. It authorized a verdict for plaintiff upon speculation and conjecture as to the ability of the operator to stop, and in contradiction of the hypothesis that plaintiff's position of imminent peril arose "immediately before" he was struck. Danzo v. Humfeld, (Mo.) 180 S.W.2d 722, 726; Miller v. Kansas City Public Service Co., (Mo. App.) 178 S.W.2d 824, 826; Crawford v. Byers Transp. Co., Inc. (Mo. App.) 186 S.W.2d 756, 761; Putnam v. Unionville Granite Works, (Mo. App.) 122 S.W.2d 389, 391; Hendrick v. Kurn, 352 Mo. 848, 179 S.W.2d 717, 721; Elkin v. St. L. P. S. Co., 335 Mo. 951, 74 S.W.2d 600, 603-4; Prater v. Rausch, 344 Mo. 888, 129 S.W.2d 910, 911; Shepherd v. Chicago, R. I. & P. Ry. Co., 335 Mo. 606, 72 S.W.2d 985, 987; McGowan v. Wells, 324 Mo. 652, 666, 24 S.W.2d 633, 639. (2) The court erred in overruling defendant's motion for directed verdict at the close of all of the evidence and in overruling defendant's motion for judgment in accordance with the motion for directed verdict. Plaintiff abandoned all theories of recovery not embodied in his Instruction 1 and was not entitled to recover upon the theory therein submitted. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 94-5; Authorities I, supra; Section 113 New Civil Code, Laws 1943, page 387.

Carl Borello and George Faso, for respondent.

(1) All the constitutive elements of a cause of action under the humanitarian doctrine were fully developed by the evidence, and properly submitted in plaintiff's Instruction 1; therefore, no error was committed in giving plaintiff's Instruction 1. Banks v. Morris, 302 Mo. 254, 257 S.W. 482, 484; Allen v. Kessler, (Mo.) 64 S.W.2d 630, 632, 633; Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 764. "Imminent peril" within the humanitarian doctrine means certain, immediate and impending peril. Hendrick v. Kurn, 352 Mo. 848, 179 S.W.2d 717, 719 (2); Instructions must be read and construed together and, as a whole, as stating the law for guidance of the jury. They may be supplementary to or explanatory of each other. When all the instructions construed together harmonize and clearly and specifically require the finding of all essential elements, any indefinite, ambiguous and misleading language in a particular instruction is cured. Mueller v. Schien, (Mo.) 176 S.W.2d l. c. 452; Raymond, Missouri Instructions, Vol. 1, pages 182, 183, Sect. 208-9; Oldhorn v. Standard Oil Co., (Mo. App.) 15 S.W.2d 899, 900; Luck v. Pemberton, (Mo. App.) 29 S.W.2d 197, 198.

OPINION

Cave, J.

This is an action for damages for personal injuries which was submitted solely upon humanitarian negligence. The jury found for the plaintiff for $ 3500; judgment was entered thereon, and defendant prosecuted this appeal.

The accident occurred a few minutes after ten o'clock, on the night of July 27, 1943, at 15th and Harrison Streets in Kansas City. 15th Street, an east-west thoroughfare, is 76 feet wide from curb to curb, with double street car tracks in the center, occupying about 18.3 feet of the street's surface. Harrison is a north-south street, and is 38 feet wide. At the time of the accident plaintiff was on foot crossing 15th Street from north to south in the pedestrian lane at the west side of Harrison Street, and the trolley bus was traveling east on the south side of 15th Street. There were no stop signs at this intersection.

Plaintiff testified that he left his home at 1409 Harrison, intending to go to his place of employment, which was located on the south side of 15th and west of Harrison; that when he reached the northwest curb of the intersection he stopped and looked east and west and, seeing no traffic for at least a block each way, started walking south across 15th Street. When he got to the middle of 15th, between the two street car tracks, "traffic began getting so thick I stopped", that when he stopped, "I looked and . . . seen these cars getting so doggone close I began to want to get across there. . . . I looked both ways." At that time he saw the bus approaching on the south side of 15th and about 12 or 15 feet from the south curb and 150 to 160 feet west of him. There was also an automobile just north and toward the rear of the bus coming up the car tracks directly at him. There was no obstruction between him and the bus. When the bus was 150 to 160 feet from him, he started forward walking "like I always do, I might have been walking a little faster when the cars got around me that way. . . . Ordinarily I walk a pretty fair walk." He testified that he saw the bus "just a little bit before" he was hit, "about 15 feet from me." He was then within 7 or 8 feet of the south curb of 15th. When asked on cross-examination whether he saw the bus between the time he started from the center of the street and when he saw it about 15 feet from him, he answered "you are going to keep you eye on that bus. I didn's wait. . . . Well, I was looking south, but you are keeping your eye on that bus. . . . "Q. You never saw the bus from the time you first saw it 150 to 160 feet away until it was right on you? A. I seen it coming; I knowed it was coming."

Witnesses for plaintiff testified that the speed of the bus was from 12 to 15 to 20 miles an hour, and that it was 40 to 50 feet west of the plaintiff when he walked into its path; that the bus swerved toward the south when it was 50 to 60 feet west of Harrison; that traveling at a speed of 20 miles an hour the bus could have been stopped with safety in about 30 feet, and at 15 miles an hour from 23 to 25 feet, and at 12 miles an hour "possible 20 to 23 feet", and that these distances included reaction, estimated at one-third of a second. The right front part of the bus struck plaintiff, "one or two more steps and I would have been out of the way"; he was knocked 4 or 5 feet and the bus was stopped within 3 or 4 feet after striking him.

According to defendant's witnesses plaintiff suddenly ran directly in front of the bus when the front end was about even with or opposite him and that the operator did not thereafter have time to stop.

Defendant contends the court erred in giving plaintiff's instruction No. 1. We quote the pertinent hypothesis upon which the instruction authorized a verdict for plaintiff.

"The Court instructs the jury that if you find and believe from all the evidence that at the time mentioned in evidence plaintiff was walking south across the south half of 15th Street at the west side of Harrison Street, and if you find and believe that at that time the bus in question was proceeding east along the south side of 15th Street and was immediately approaching the plaintiff, if so, and if you find that when plaintiff had reached a point near the south curb of 15th Street he was then and there struck by said bus and thereby caused to sustain injuries, if so find, and if you further find and believe from the evidence that immediately before being struck by said bus, plaintiff became and was in a position of imminent peril and immediate danger from the approach and movement of said bus, if so, and that the bus operator saw or by the exercise of the highest degree of care could have seen plaintiff in such position of imminent peril and immediate danger, if you so find, in sufficient time, thereafter, by the exercise of the highest degree of care and by the use of the means and appliances then at hand and with safety to the bus, its occupant and others if so, to have stopped the bus before striking plaintiff, if so, and the bus operator could have avoided striking plaintiff, if so, but negligently failed to do so, if you so find, and as a direct result thereof plaintiff was struck and injured, . . . (Italics ours).

The error charged is that the instruction authorized a verdict for plaintiff if he got in a position of imminent peril immediately before being struck; that those words mean without interval of time, and that there was no evidence to the effect that the bus could have been stopped under such circumstances; that the instruction submitted a physical impossibility and was self-contradictory.

We think there is no doubt that plaintiff's evidence, if believed, made a submissible case under the humanitarian rule. The question presented is, did instruction No. 1 properly submit the issues? In the very recent case of State ex rel. v. Bland, 191 S.W.2d 660, the court en banc, in effect, overruled some prior decisions and reaffirmed the "formula" enumerating the constitutive facts of a cause of action under the humanitarian rule. One of the essential elements of a humanitarian case is that the peril must arise and be discoverable in time for defendant to avoid the collision. This instruction, contrary to any called to our attention or any we have found after diligent search, fixes the time of plaintiff's imminent peril at immediately before being struck. As used here immediately refers to time and not space or distance. What is meant by immediately before? Webster's New International Dictionary, Second Edition, defines "immediately", when referring to time, as meaning "without interval of time"; however, that strict...