Wright v. Spieldoch

• Decision Date: 11 February 1946
• Docket Number: 39529
• Citation: 193 S.W.2d 42,354 Mo. 1076
• Parties: Charles Wright v. Gilbert Spieldoch, Appellant
• Court: Missouri Supreme Court

193 S.W.2d 42

354 Mo. 1076

Charles Wright v. Gilbert Spieldoch, Appellant

No. 39529

Supreme Court of Missouri

February 11, 1946

Rehearing Denied March 11, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Affirmed.

Walther Hecker & Walther and Mattingly, Berthold, Jones & Richards for appellant.

(1) The court erred in giving and reading to the jury Instruction 1. There was insufficient evidence to support the submission of the case to the jury on the theory that defendant was negligent in driving his automobile at an excessive, unreasonable and dangerous rate of speed, and in failing to slacken the speed thereof. Excessive, and unreasonable rate of speed, and failure to slacken the speed, were not the proximate cause of plaintiff's injuries. Kane v. Mo. Pac. R. Co., 251 Mo. 13, 157 S.W. 644; Kennedy v. Independent Quarry & Const. Co., 316 Mo. 782, 291 S.W. 475; Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924; Jaquith v. Fayette R. Plumb, Inc., 254 S.W. 89; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872. (2) The court erred in giving and reading to the jury Instruction 2, for the reason that there was insufficient evidence to support the submission of the case to the jury under the humanitarian or last clear chance doctrine. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798; Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 713; Roach v. Kansas City Pub. Serv. Co., 141 S.W.2d 800; Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784; Hutchison v. Thompson, 167 S.W.2d 96; Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234. (3) Instructions 1 and 2 submitted the case to the jury on inconsistent and contradictory theories. Under the evidence as to the condition of the street, primary negligence of excessive and unreasonable speed was inconsistent with the humanitarian doctrine submitted on the theories to swerve away from plaintiff or to warn plaintiff. Trusty -- Constructing & Reviewing Instructions, Missouri Ed. 1941, p. 74; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1. (4) The verdict and judgment of $ 12,000 is grossly excessive. Turner v. Cent. Hdwe. Co., 186 S.W.2d 603; Taylor v. Lumaghi Coal Co., 181 S.W.2d 536; Clark v. Chicago, R.I. & P. Ry. Co., 318 Mo. 453, 300 S.W. 758; Gill v. Baltimore & O.R., 302 Mo. 317, 259 S.W. 93; Bradfield v. Kansas City, 204 S.W. 819.

Mark D. Eagleton and Wm. H. Allen for respondent.

(1) On the question whether there is evidence warranting the submission to the jury of an issue of negligence the evidence is to be viewed in the light most favorable to plaintiff, according him the benefit of every inference favorable to him that may reasonably be drawn from the evidence; defendant's evidence is to be disregarded except where it aids plaintiff's case. Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Bootee v. Kansas City Pub. Serv. Co., 183 S.W.2d 892. (2) Whether a particular rate of speed of a motor vehicle is excessive depends upon the condition of the highway and all of the other surrounding circumstances. Here the evidence, showing that defendant drove his car at a speed of 20 miles per hour on a slick, icy street, approaching plaintiff, and continued at that speed until he was within thirty or forty feet of plaintiff, whereby he disabled himself from stopping in time to thereby avoid striking and injuring plaintiff, abundantly warranted a finding that the speed was excessive, unreasonable and dangerous, and that as a proximate result thereof plaintiff was injured. Montague v. M. & K. Interurban Ry. Co., 305 Mo. 269, 264 S.W. 813; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Nixon v. Hill, 227 Mo.App. 312, 52 S.W.2d 208. (3) Appellant's contention that excessive speed was not a proximate cause of the collision and plaintiff's injuries because, forsooth, that cause was broken by a new cause, to-wit, the turning by defendant of his car to the right, toward plaintiff, is without merit. The rule that the causal connection between a negligent act and the injury may be broken by the interposition of an independent responsible human agency cannot be applied to relieve one of liability for one negligent act by interposing another negligent act also committed by himself. Burger v. Mo. Pac. R. Co., 112 Mo. 238, 20 S.W. 439, 34 Am. St. Rep. 379; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558; Hild v. St. Louis Car Co., 259 S.W. 838. (4) Nor is there any merit in the contention that it was error to give Instruction 2, submitting the case to the jury on the humanitarian doctrine as for the failure of defendant to swerve his car away from plaintiff and to give a warning signal. The evidence showed that while plaintiff was in a position of imminent peril he was actually seen by defendant in such position in ample time for defendant, with the means and appliances at hand, to have avoided striking plaintiff by swerving his car so as to keep it away from plaintiff, without injury to himself or others, but that defendant failed to exercise the highest degree of care or, indeed, any care, to thus prevent his car from striking plaintiff, and that this was a direct and proximate cause of the injury. All of the constitutive elements of the humanitarian rule are present. Steger v. Meehan, 63 S.W.2d 109; Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Bootee v. K.C. Public Serv. Co., 183 S.W.2d 892. (5) A defendant, to be free from negligence under the humanitarian rule, must act on reasonable appearances and at a time when action will be effective. Knorp v. Thompson, 175 S.W.2d 889; Allen v. Kessler, 64 S.W.2d 630; Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368. (6) And since Instruction 2 submitted, as a predicate of liability, not only the issue of defendant's negligence under the humanitarian rule in failing to swerve his car away from plaintiff, but, conjunctively, the issue of his negligence under that rule in failing to sound a warning, and there was direct and positive testimony to take the latter issue to the jury, the submission of the issue of negligence in failing to swerve the car away from plaintiff could not, in any event, have been prejudicial to defendant, since thereby the instruction merely required the jury to find more than was necessary to the returning of a verdict for plaintiff. Burneson v. Zumwalt Co., 349 Mo. 94, 159 S.W.2d 605; Wilday v. M.K. & T. R. Co., 347 Mo. 275, 147 S.W.2d 431; Tash v. St. Louis-S.F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 690. (7) Appellant's contention that Instruction 1 and Instruction 2 submitted inconsistent theories of negligence is entirely unfounded. The issues of negligence submitted by the two instructions are in no wise inconsistent or self-destructive; proof of one had no tendency to disprove the other. Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 671; Hillis v. Rice, 151 S.W.2d 717; Montague v. Mo. & Kan. Interurban Ry. Co., 305 Mo. 269, 264 S.W. 813; Williams v. St. Louis Pub. Serv. Co., 335 Mo. 335, 73 S.W.2d 199. (8) In view of the serious and permanent injuries sustained by plaintiff, his permanent loss of earning power, his age and past earnings, and the fact that as a result of defendant's negligence he is permanently disabled for life so that he cannot get about without the aid of a crutch, the pain and suffering that he has already endured as a result of his injuries, and the fact that he is permanently condemned to a life of suffering, the verdict below of $ 12,000 is in no wise excessive, but a very modest award. Margulis v. Natl. Enameling & Stamping Co., 324 Mo. 420, 23 S.W.2d 1049; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311; Kelly v. Illinois Central R. Co., 352 Mo. 301, 177 S.W.2d 435, 443; Gieseking v. Litchfield & Madison Ry. Co., 344 Mo. 672, 127 S.W.2d 700. (9) It is within the peculiar province of the jury to determine from the evidence the character and extent of the injuries, the loss and suffering, and what compensation should be awarded therefor. The trial court, in supervising the amount of the verdict, exercise a discretionary power, the exercise of which will not be disturbed on appeal except for clear abuse thereof. Gieseking v. Litchfield & Madison Ry. Co., 344 Mo. 672, 127 S.W.2d 700; Jones v. Pennsylvania R. Co., 182 S.W.2d 157; Schroeder v. Wells, 298 S.W. 806. (10) And this court is thoroughly committed to the doctrine that "appellate courts should not disturb a verdict for damages on the theory that it is excessive, unless it is apparent from the record that the verdict is grossly excessive.' Plater v. Kansas City, 334 Mo. 842, 68 S.W.2d 800; McNatt v. Wabash Ry. Co., 341 Mo. 516, 108 S.W.2d 33; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for damages for personal injuries alleged to have been caused by the negligence of defendant. Verdict and judgment were for plaintiff for $ 12,000 and defendant appealed.

On the morning of February 16, 1944, the plaintiff was driving an automobile east on the south side of West Pine Boulevard in the City of St. Louis, between North Court and Euclid Avenues. He stopped for a traffic light at Euclid Avenue and, while waiting for the light to change, his automobile was struck from the rear by an automobile that "kind of slid off the right side of the (rear) bumper," and came to a stop south of plaintiff's automobile. Plaintiff got out on the left-hand side of his automobile and passed in the rear...