Yarrington v. Lininger

• Decision Date: 14 September 1959
• Docket Number: No. 46942,No. 2,46942,2
• Citation: 327 S.W.2d 104
• Parties: Ada E. YARRINGTON, Respondent, v. Arthur Irvin LININGER, Edith Wareham and Elsie Bucholz, Appellants
• Court: Missouri Supreme Court

Page 104

327 S.W.2d 104

Ada E. YARRINGTON, Respondent, v. Arthur Irvin LININGER, Edith Wareham and Elsie Bucholz, Appellants.

No. 46942.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1959.

Shoemaker & Reital, Elmer Reital, Brown, Douglas & Brown, R. A. Brown, St. Joseph, for appellants, Edith Wareham and Elsie Bucholz.

E. L. Redman, Albany, for respondent.

STOCKARD, Commissioner.

Defendants Edith Wareham and Elsie Bucholz have appealed from a judgment for plaintiff in the amount of $25,000 in an action for damages resulting from a three- car automobile collision. The judgment was also entered against defendant Arthur Irvin Lininger, but his appeal, although timely taken, has not been perfected.

Plaintiff's case against Lininger was submitted to the jury on primary negligence; her case against Mrs. Elsie Bucholz was submitted upon negligence under the humanitarian rule; and her case against Mrs. Edith Wareham was based on the contention that Mrs. Wareham and Mrs. Bucholz were engaged in a joint enterprise. Appellants contend that the trial court erred in refusing to direct a verdict in their favor because no submissible case was made under the humanitarian rule, and in giving instruction 1 submitting humanitarian negligence because the issues there submitted were not supported by substantial evidence. We shall review the evidence from a standpoint favorable to plaintiff and give her the benefit of any part of defendants' evidence favorable to her which is not contradicted by her own testimony and not contrary to her theory of recovery, and we shall also give her the benefit of all favorable inferences arising therefrom. Ukman v. Hoover Motor Express Co., Mo.Sup., 269 S.W.2d 35, 37.

The collision occurred about 3:00 o'clock in the afternoon of October 16, 1956, on U. S. Highway 136 in Gentry County about 1.3 miles north of the intersection with Highway 4. The weather was clear and sunny, and the highway was dry. At and near the scene of the collision the highway ran in a north-south direction, and the concrete pavement was 18 feet in width with 'lips' on each side approximately one foot in width, resulting in an overall width of at least 20 feet. The shoulders on each side were firm, free from obstructions, and 11 to 12 feet in width. North of the place of collision the highway inclined to the crest of a hill or slope approximately 341 feet distant. To the south the highway was not completely level, but there was a clear unobstructed view for a substantial distance.

Plaintiff, a widow age 63, was driving her Ford automobile at a speed of approximately 35 miles an hour southward on U. S. Highway 136. At no time prior to the collision was her automobile outside of the west lane of the highway. Mrs. Bucholz was driving an Oldsmobile owned by her sister, Mrs. Wareham, northward on the same highway at 35 to 40 miles an hour. There was some testimony that prior to the collision she was close to or 'a shade' west of the center line, but other testimony was that prior to the collision she was not outside of the east lane of the highway. Arthur Lininger, operating a Chevrolet automobile, had been following plaintiff for some distance, and as plaintiff reached the crest of the hill north of the place of collision he undertook to pass. He had 'held back' preparing to pass, and when he turned into the east lane to go around plaintiff he was driving about 45 miles an hour. Mrs. Bucholz saw the tops of plaintiff's and Lininger's automobiles as they came over the crest of the hill, and since it was 341 feet from the crest of the hill to the point of collision, Mrs. Bucholz was somewhere in the vicinity of 682 feet from the automobiles of plaintiff and Lininger when she first saw them. The Lininger automobile proceeded southward 'down the center' of the highway gaining speed and always to the east of plaintiff's automobile. Plaintiff continued southward in her lane of the highway without any change of speed or course of travel, and Mrs. Bucholz proceeded northward without materially slackening her speed or changing her course of travel. We inject at this point that Mrs. Bucholz testified that Lininger, in attempting to pass plaintiff, drove his car completely over onto the east shoulder, and that she could not turn right because he was there and she could not turn left because of plaintiff's automobile so she stopped her automobile on the highway. She further testified that when Lininger got close to her he suddenly turned across in front of her stopped automobile and tried to go between her automobile and that of plaintiff. This, however, is not the most favorable evidence to plaintiff and is not in accord with her theory of recovery. All three automobiles met at approximately the same place on the highway, and their positions at the instant of the collisions were as follows: The front portions of the Lininger automobile and the Oldsmobile operated by Mrs. Bucholz had passed each other, and the left front fender of the Oldsmobile struck a glancing blow against the left rear fender of the Lininger automobile. The right rear portion of the Lininger automobile was even with the left front door of plaintiff's Ford, and the force of the glancing blow by the Oldsmobile against the Lininger automobile deflected the rear portion of it into and against the left front door of plaintiff's Ford, and by reason thereof the Ford careened off the highway, across the ditch, through a fence and into a field where it struck a tree. Plaintiff suffered substantial and serious injuries.

Mrs. Bucholz was at all times material fully aware of the situation ahead of her. She saw the two automobiles proceeding toward her with plaintiff in her own lane and Lininger in the east or improper lane for southbound traffic. Plaintiff suffered from retrograde amnesia and could remember nothing from the time she started down the hill unaware of the presence of the Lininger automobile until a substantial period after the accident. When Lininger started around her and up to the time of the collision she did not slow or turn her automobile to the west to make room for Lininger to pass or to get back into his proper lane, and she did nothing to indicate that she was aware of the impending danger.

The first and basic fact of liability, 'it might be denominated the chief one,' under the humanitarian rule is a position of imminent peril. Banks v. Morris & Co., 302 Mo. 254, 267, 257 S.W. 482, 484. It is only when imminent peril arises that the humanitarian rule seizes upon the then existing situation, in effect 'blotting out primary or antecedent negligence,' Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930, and imposes a duty thereafter to exercise the required degree of care to avoid the threatened injury. McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704, 707; Wilson v. Toliver, Mo.Sup., 305 S.W.2d 423, 429; Batson v. Ormsbee, Mo.App., 304 S.W.2d 680. Whatever transpires from the standpoint of either plaintiff or defendant prior to the time that plaintiff enters into a position of imminent peril does not affect the rights of the parties thereafter. Catanzaro v. McKay, Mo.Sup., 277 S.W.2d 566, 571. In other words, regardless of whether or not the defendant had some duty to act or refrain from acting in the exercise of the required degree of care based on primary negligence, under the humanitarian rule there arises no duty whatever to take or refrain from taking any action unless and until the plaintiff comes into what is called a position of imminent peril. Paydon v. Globus, Mo.Sup., 262 S.W.2d 601; East v. McMenamy, Mo.Sup., 266 S.W.2d 728; Ukman v. Hoover Motor Express Co., supra; Schmidt v. Allen, Mo.Sup., 303 S.W.2d 652; Davis v. St. Louis Public Service Company, Mo.Sup., 316 S.W.2d 494. In addition, when it is shown by the evidence that the plaintiff was in a position of imminent peril, in order to impose liability under humanitarian rule, it must also be shown that defendant, after receiving actual or constructive notice of the imminent peril, then 'had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others,' and that he failed to exercise the required care to avert such injury. Banks v. Morris & Co., supra at page 484, of 257 S.W.; Shirley v. Norfleet, Mo.Sup., 315 S.W.2d 715.

It is, therefore, immediately apparent that the first decisive issue in this case is whether plaintiff submitted a set of facts from which the jury could find that she came into a position of imminent peril, as that term is defined and used in connection with the humanitarian rule. In her verdict-directing instruction, after hypothesizing that plaintiff was operating her automobile south on the highway in her proper lane; that Lininger was overtaking and trying to pass her, and that in doing so was driving his automobile 'to the left of plaintiff's automobile and on the east of the traveled portion of said highway;' that Mrs. Bucholz was operating her automobile north on said highway and was approaching and meeting the vehicles of plaintiff and Lininger, plaintiff then submitted that 'if you * * * further find that and believe that * * * Lininger and [Mrs.] Bucholz in meeting on said highway attempted to meet and pass each other with said vehicles to the left and in close proximity to plaintiff's automobile proceeding south on said highway, * * * and that in so meeting and attempting to pass each other the Oldsmobile automobile being driven by * * * [Mrs.] Bucholz collided with the motor vehicle driven by * * * Lininger and that said collision deflected the motor vehicle of * * * Lininger, causing the same to strike and collide with the automobile of plaintiff, deflecting the same and causing it to run off the road and highway * * * and if you further find and believe * * * that at and prior to the time plaintiff and her said automobile were struck and collided with on said...