Opinion
NOTE: Opinion filed at April Term, 1932, September 3, 1932; motion for rehearing filed; motion overruled at October Term, October 22, 1932.
1. DAMAGES: Humanitarian Rule. Antecedent negligence of the plaintiff cannot be considered in determining defendant's liability under the humanitarian doctrine.
2. DAMAGES: Humanitarian Rule: Danger Zone. In an action for injury caused to plaintiff when his automobile, in which he was riding, was struck by defendant's street railway work car, where the evidence justified a finding that the work car was 200 feet from the intersection when the plaintiffs automobile was not over 35 feet, was looking away from the approaching work car and was proceeding across the street with increasing speed, where the danger zone commenced was a question for the jury; the duty of the motorman on the work car to stop or slacken speed commenced when he saw or by the exercise of ordinary care could have seen that the plaintiff was intent on pursuing his journey across the track oblivious of the danger.
3. DAMAGES: Humanitarian Rule: Evidence. Where the work car which struck plaintiff's automobile and caused the injury sued for traveled from 100 to 150 feet after it struck the automobile, it justified an inference that the speed of the work car, under the evidence as shown, could have been slackened sufficiently with the least efficient brakes to have avoided the injury.
4. DAMAGES: Instruction: "Carmen." In an action for damages caused to plaintiff by the collision of his automobile with the defendant's work car, the use of the word "carmen" in an instruction authorizing a verdict for plaintiff, when there were no others besides the motorman in charge of the work car, was not prejudicial error when an instruction on behalf of the defendant limited the duty of exercising care in operating the work car to the motorman.
5. DAMAGES: Humanitarian Rule: Expert Evidence. In an action for an injury caused to plaintiff by collision of his automobile with defendant's work car, where the case was submitted on the humanitarian doctrine, expert evidence as to the distance in which the work car could have been stopped with air brakes was not erroneously admitted, since the work car was actually stopped within 150 feet and defendant had complete information as to how it was equipped and offered no evidence upon it.
Appeal from Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.
AFFIRMED.
T.E. Francis, B.G. Carpenter and Allen, Moser Marsalek for appellant.
(1) The evidence shows, without dispute, that after plaintiff stopped his automobile, at a point about thirty-five or forty-five feet south of defendant's track, he drove it northwardly to the point of the collision without looking for cars which might be approaching thereon. Plaintiff testified that he looked both ways at the time he stopped, but saw no car at that time, and then looked straight ahead as he went toward and onto the track. His failure to make any effort, as he approached the track, to discover whether a car was approaching, convicts him of contributory negligence, as a matter of law. State ex rel. Maclay v. Cox, 320 Mo. 1218; Evans v. Railroad Co., 289 Mo. 493; Sanguinette v. Railroad, 196 Mo. 466; Markowitz v. Met. St. Ry. Co., 186 Mo. 350; Smith v. Wells, 31 S.W.2d 1024; Gersman v. A.T. S.F. Ry. Co., 229 S.W. 167; Gubernick v. United Rys. Co., 217 S.W. 35; Zlotnikoff v. Wells, 220 Mo. App. 869; Paul v. United Rys. Co., 152 Mo. App. 577, opinion adopted 160 Mo. App. 599; Bendick v. Wells, 253 S.W. 394; Underwood v. West, 187 S.W. 84. Plaintiff's own testimony conclusively shows that it was a physical impossibility for him to have failed to see the approaching car by looking either when at the south line of Pershing Avenue, or at any time thereafter before going into the danger zone. He had a clear view to the west for a block or more; and to look was to see. Under the circumstances his failure to exercise any care to ascertain whether a car was approaching from the west, while he was yet at a place of safety, and before entering the danger zone, convicts him of negligence as a matter of law. Monroe v. Railroad, 297 Mo. 633; Boring v. Met. St. Ry. Co., 194 Mo. 541; Kelsay v. Railway Co., 129 Mo. 372; Evans v. Ill. Cent. Ry. Co., 233 S.W. 399; Hale v. St. Joseph Ry. Co., 287 Mo. 518; Laun v. Railroad, 216 Mo. 578; Reno v. Railroad, 180 Mo. 469. (2) The plaintiff wholly failed to show any right of recovery under the humanitarian theory. In order to justify submission of the case on this theory, it was incumbent upon plaintiff to prove that defendant's servant in charge of the street car, by the exercise of ordinary care, could have averted the collision after the plaintiff entered a position of peril. The evidence wholly fails to show where the car was when plaintiff entered into such position. Banks v. Morris Co., 302 Mo. 266; Lackey v. United Rys. Co., 288 Mo. 120; Paul v. United Rys. Co., 152 Mo. App. 583; Wilkerson v. Railway Co., 140 Mo. App. 316; Zurfluh v. Peoples Ry. Co., 46 Mo. App. 642; Bibb v. Grady, 231 S.W. 1022; Riggs v. Kansas City Rys. Co., 220 S.W. 697. (3) The evidence shows without dispute that as plaintiff approached the track from a point thirty-five or forty-five feet therefrom, he was operating his automobile slowly, at the rate of about five miles per hour; that he could stop it within a few feet. Under such circumstances the motorman had the right to assume that plaintiff would exercise ordinary care for his own safety, and would stop before going on the track in front of the approaching car. Markowitz v. Met. St. Ry. Co., supra; Schmidt v. Railroad, 191 Mo. 233; Guyer v. Railroad, 174 Mo. 350; Beal v. Railway Co., 256 S.W. 735. (4) The plaintiff did not enter a position of imminent peril, within the purview of the humanitarian rule, until his automobile was very close to the track. McGowan v. Wells, 24 S.W.2d 633; Petty v. Railway Co., 179 Mo. 666; Guyer v. Railroad, 174 Mo. 351. (5) To entitle him to recover the burden was upon plaintiff to prove his case by substantial evidence. There is no substantial evidence in the record tending to show liability on defendant's part, under the humanitarian rule, but, on the contrary, plaintiff's alleged right of recovery under said rule is based upon speculation and conjecture, and is clearly insufficient to entitle him to recover. Williams v. Van Blarcom, 258 Mo. 418; Miller v. Wilson, 288 S.W. 997.
Freeland L. Jackson for respondent.
(1) In ruling on demurrer to evidence, appellate court must consider all testimony and evidence in light most favorable to plaintiff, and give him every favorable inference of fact which evidence warranted and all countervailing inferences must be rejected. Morton v. St. Louis-S.F. Ry. Co., 20 S.W.2d 34; Stewart v. Sheidley, 16 S.W.2d 607; Stewart v. Laclede Gas Light Co., 241 S.W. 909. And where witness' answer to material question was ambiguous, court on demurrer to evidence cannot draw inference most favorable to defendant. Ceck v. Mallinckrodt Chemical Co., 20 S.W.2d 509; Stewart v. Laclede Gas Light Co., 241 S.W. 909. Demurrer to evidence admits as true every fact and circumstance which evidence adduced by plaintiff tends to prove, and plaintiff is entitled to benefit of every inference of fact which may reasonably be drawn therefrom. Morton v. St. Louis-S.F. Ry. Co., 20 S.W.2d 34; Nickelson v. Cowan, 9 S.W.2d 534; Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S.W. 14. Plaintiff having stopped his automobile a few feet (thirty feet) from the track on which he was struck, from which point he looked west and could see a distance of better than 300 feet, and saw that there was no car within that distance; that the track was clear, was not guilty of contributory negligence as a matter of law, even if he proceeded across the track without again looking to west. Maloney v. United Rys. Co., 183 Mo. App. 292, 167 S.W. 471; Wack v. Railway, 157 S.W. 1070; Ziegeler v. United Rys. Co., 220 S.W. 1018; Hoodenpyle v. United Rys. Co., 236 S.W. 913; Hall v. St. L. S. Ry. Co., 124 Mo. App: 661, 101 S.W. 1137. (a) Where plaintiff, when thirty fect from defendant's track, looked and could see a distance of more than 300 feet and saw that the track was clear throughout all that distance, and if he would have had time to travel across the track before a car traveling at a usual rate of speed could reach the crossing, he is not guilty of contributory negligence as a matter of law in not again looking. Maloney v. United Railways Co., 183 Mo. App. 292, 167 S.W. 472; Strauchon v. Met. St. Ry., 232 Mo. 587, 135 S.W. 14. Where plaintiff offers proof of both ordinary negligence and negligence under humanitarian theory and defendant demurs to evidence on ground of plaintiff's contributory negligence, such demurrer being general, is properly overruled, as contributory negligence is no defense under humanitarian theory. Williams v. Fleming, 267 S.W. 6; Schroeder v. Wells, 276 S.W. 60; Bode v. Wells, 15 S.W.2d 336. (b) A plaintiff enters the danger zone at the moment he approaches so near the point of collision and under such conditions that it was or should have been apparent to the motorman that he would not or could not stop his automobile before going upon the track. Larkin v. Wells, 278 S.W. 1088; State ex rel. Railway Co. v. Trimble, 260 S.W. 1000; Logan v. Railroad Co., 254 S.W. 705; Ellis v. Railroad Co., 138 S.W. 23. (c) Where conduct of person driving toward track would lead prudent motorman to conclude he was going on the track in front of the car, motorman's right to act on presumption that person will stop before going on track, ceases. Ellis v. Met. St. Ry. Co., 138 S.W. 24; Eckhard v. St. Louis Transit Co., 89 S.W. 610; Logan v. Railroad Co., 254 S.W. 711. (d) Plaintiff entered the danger zone and into a position of imminent peril from the time be left the south curb of Pershing and drove steadily toward the track with his mind preoccupied and his attention directed elsewhere than to the oncoming car. Ellis v. Met. St. Ry. Co., 138 S.W. 30; Larkin v. Wells, 278 S.W. 1088; Logan v. Railroad Co., 254 S.W. 711. (2) Where a car was stopped in 100 to 150 feet after a collision defendant was not prejudiced by testimony of expert that a car could have been stopped within 100 to 200 feet, and evidence as to character of equipment and expert testimony is functus officio. Ellis v. Met. St. Ry., 138 S.W. 32; Huckshold v. Ry. Co., 234 S.W. 1074; Beier v. Transit Co., 197 Mo. 231, 94 S.W. 876; Latson v. Transit Co., 192 Mo. 466, 91 S.W. 109; Kinlen v. Met. St. Ry., 216 Mo. 145, 115 S.W. 523. This instruction was not erroneous, nor misleading in that it referred to defendant's "car men in charge of defendant's car," and it could not be said to impose a duty upon any servant of defendant, except the one in charge of and operating the car. Meng v. Ry. Co., 84 S.W. 213; Kamos v. Kansas City Ry., 202 S.W. 435; Bybee v. Dunham, 198 S.W. 193.
This is a suit for damages for personal injuries, which the plaintiff sustained in a collision between a street railway work car and his automobile in St. Louis County, while driving home from work on December 5, 1927. Plaintiff, driving north on Hanley Road, was struck by the work car running east on Pershing Boulevard, at the intersection of those streets. Pershing Boulevard is 100 feet wide east of Hanley Road, while west of Hanley Road it is only 80 feet wide. It comes down a hill several blocks long from the west toward Hanley Road but the grade of the last block, between Linden Avenue and Hanley Road, is only one per cent. This block is about 300 feet long.
Plaintiff's evidence consisted of his own testimony; the testimony of an eyewitness to the collision, who lived in an apartment on the northwest corner of the intersection; that of two eyewitnesses, who were in an automobile headed south on Hanley Road, about as far back from Pershing Boulevard as the apartment building; that of two other witnesses, who were in an automobile farther north on Hanley Road and did not see the collision but heard the crash and saw what happened thereafter; and the testimony of a former employee of the defendant Street Railway Company, as an expert, concerning brakes on defendant's work cars. The work car struck plaintiff's car at just about the driver's seat and threw it over to the north side of the street. There was medical testimony as to plaintiff's injuries but no point is made about the amount of the verdict. Defendant offered no evidence.
Plaintiff's evidence tended to show that the payement in the intersection was rough, wavy and full of holes; that he stopped at the southeast curb of the intersection; that because this curb was set back 10 feet farther than the southwest curb he could see west only to the next street, Linden Avenue; that he looked to the west and saw no street car nor vehicles in that block; that he looked east and saw none but looked north and saw several automobiles approaching him; that he started slowly across the street in low gear, without again looking to the west, and upon reaching the street car track had reached the speed of about five miles per hour and was shifting to second gear when he was struck by the work car which he never saw until that moment. Plaintiff's evidence further tended to show that the work car was running at from 30 to 35 miles per hour; that there were several men on the front platform and other men in the middle of the car; that the car did not slow up or slacken speed until after it struck plaintiff's automobile; that there was no sound of setting brakes before plaintiff was struck; that no warning signal was sounded; that it carried plaintiff's automobile about 50 feet east of the point of the collision; and that the work car was stopped from 100 to 150 feet from the point of collision. One of plaintiff's witnesses testified that when he first saw the work car it was about 200 feet west of Hanley Road and that plaintiff at that time was coming across the street from 35 to 40 feet south of the car track. Plaintiff's expert witness testified that he was familiar with the work cars used on that particular street car line and that some of them were equipped with hand brakes and that others were equipped with air brakes. He testified that those equipped with air brakes could be stopped, when traveling 30 miles per hour, within 100 feet with safety to the car and the persons thereon, and could be stopped if traveling 35 miles per hour within 150 feet: that those equipped with hand brakes could be stopped within 150 feet when traveling 30 miles per hour, and could be stopped within 200 feet when traveling 35 miles per hour.
The jury found for the plaintiff for $12,500. Upon motion for new trial, the court ordered a remittitur of $3,500. This amount was remitted and judgment was entered in favor of plaintiff for $9,000. From this judgment defendant has appealed. Defendant assigns as error overruling its demurrer to plaintiff's evidence, giving plaintiff's Instruction No. 1, and permitting plaintiff to show the distance in which a work car equipped with air brakes could be stopped.
Plaintiff abandoned all of his other charges of negligence and submitted his case to the jury solely upon the issue of negligence under the humanitarian doctrine. Defendant, contending that its demurrer to plaintiff's evidence should have been sustained, says that plaintiff was guilty of contributory negligence as a matter of law, in failing to look again to the west while proceeding across the street. Whether or not this is true is immaterial. Antecedent negligence cannot be considered in determining liability under the humanitarian doctrine. "When such peril arises the doctrine seizes upon the situation as it then exists and requires the one operating the dangerous instrumentality to exercise ordinary care in certain respects — to make timely discovery of the peril, if it was his duty to be on the lookout, and thereafter to avoid the infliction of the threatened injury, if he can do so with the means at hand and without jeopardizing the safety of himself and others." [Alexander v. St. Louis-San Francisco Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023 l.c. 1026; State ex rel. Fleming v. Bland, 322 Mo. 565, l.c. 572, 15 S.W.2d 798, l.c. 801; see, also, Vowels v. Missouri Pacific Ry. Co., 320 Mo. 34, 8 S.W.2d 7; Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; Eppenstein v. Missouri Pacific Ry. Co., 197 Mo. 720, 94 S.W. 967.]"
Defendant further contends that plaintiff's evidence was not sufficient to make a humanitarian case, because plaintiff, proceeding slowly with the ability to stop his car within a few feet, was not in the danger zone until he was very close to the track and defendant says there was no evidence showing where the work car was at that time or that it could have then avoided the collision. As we said in Homan v. Missouri Pacific Ry. Co., (No. 30118, April Term, 1932, not yet reported), quoting from Ellis v. Metropolitan Street Ry. Co., 234 Mo. 657, 138 S.W. 23, and Logan v. C.B. Q. Railroad Co., 300 Mo. 611, 254 S.W. 705: "If a given case in that regard is so plain that average, fair minded men cannot reasonably differ about it, a recovery may be denied as a matter of law. But if there is ground for fair difference of opinion about it, then the question is for the jury." Looking at plaintiff's evidence in the light most favorable to plaintiff, as we must in reviewing this question, there was evidence from which the jury was justified in finding that defendant's work car was at least 200 feet east of the intersection when plaintiff, not over 35 feet away from the track, looking away from the approaching work car, was proceeding across the street, with increasing speed, after starting from a complete stop until at the track he had gained momentum "just enough to throw it in second." Defendant argues that plaintiff was not in the danger zone when he was 35 feet away from the track. Where the danger zone commenced was a question for the jury under the facts and circumstances of this case. Defendant was operating its work car on a public street, approaching a much traveled intersection, where it had reason to expect persons to be and where it was required to keep a lookout. Its duty to stop or slacken the speed of its work car commenced at such time as the operator of its car saw, or could have seen by the exercise of ordinary care, that plaintiff was intent on pursuing his journey on across the track oblivious to the danger. [Ellis v. Metropolitan Street Ry. Co., 234 Mo. 657, 138 S.W. 23; Maginnis v. Missouri Pacific Ry. Co., 268 Mo. 667, 187 S.W. 1165; State ex rel. Wabash Ry. Co. v. Trimble, 260 S.W. 1000; Logan v. C.B. Q. Railroad Co., 300 Mo. 611, 254 S.W. 705; Zumwalt v. C. A. Ry. Co., 266 S.W. 717; Larkin v. Wells (Mo. App.), 278 S.W. 1087; Anderson v. Davis, 314 Mo. 515, 284 S.W. 439; Smith v. St. Louis-San Francisco Ry Co., 321 Mo. 107, 9 S.W.2d 939; Herrell v. St. Louis-San Francisco Ry. Co., 322 Mo. 551, 18 S.W.2d 481; Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548.] Plaintiff's evidence, in fact, justifies the inference that this condition existed almost immediately after he started across the intersection and that the work car was then more than a block away. Furthermore, we have not taken into consideration the duty to warn plaintiff if he was driving into danger zone too late for defendant to stop its work car. [See Herrell v. St. Louis-San Francisco Ry. Co., 322 Mo. 551, l.c. 562, 18 S.W.2d 481, l.c. 485.] We hold that the demurrer to plaintiff's evidence was properly overruled.
We also hold that there was no error in giving plaintiff's Instruction No. 1. This instruction submitted the case upon the humanitarian doctrine and defendant's principle contention about it is that there was no evidence upon which to submit the issue of negligence under the humanitarian rule. We have already disposed of this contention in ruling on the question of the demurrer to the evidence. As offered by plaintiff, this instruction told the jury that when defendant's carmen saw, or by the exercise of ordinary care could have seen, that plaintiff, unconscious of the approach of the street car, was in imminent peril it became their duty "to exercise ordinary care to use the means and appliances at hand, if any, to give or sound a warning of the approach of the said street railway car, or to stop the same, or slacken the speed thereof, in the shortest time and space possible to avoid striking and injuring plaintiff, having due regard for the reasonable safety of said street railway car and the persons aboard the same:" then the jury were instructed that the negligent failure to perform this duty justified a verdict for plaintiff. The court struck out the italicized words, concerning the duty to give a warning; so that, as given the instruction only directed the jury to find for plaintiff if the defendant's carmen negligently failed to stop the car or slacken the speed thereof, although there was in fact evidence to justify including also failure to warn plaintiff, after his peril was or could have been discovered, since all eyewitnesses testified they heard no warning signal. [Stotler v. Chicago Alton Ry. Co., 200 Mo. 107, 98 S.W. 509.] The instruction was, therefore, certainly not unfavorable to defendant.
Defendant further contends that this instruction should not have been given because there was no evidence to show whether the work car, which struck plaintiff, was equipped with air brakes or hand brakes and that the jury was, by the instruction, invited into the field of guess work, surmise and conjecture as to whether or not the work car could have been stopped or its speed slackened in time to have averted the collision. As we have shown, supra, plaintiff's evidence justified the finding that the car was far enough away, when its operator could by the exercise of ordinary care have seen plaintiff in a position of peril and oblivious thereto, so that it could have been stopped had it been equipped with hand brakes and traveling (the maximum speed testified to) 35 miles per hour. The evidence was that it actually was stopped within from 100 to 150 feet after it struck plaintiff's automobile. The inference certainly is justified that its speed could have been slackened sufficiently with the least efficient brakes to have avoided the collision.
Defendant also objects to the use in the instruction of the word "carmen," arguing that it implied that others, besides the motorman, were under the duty of keeping a lookout and attempting to stop the car. We do not think that the jury could have been misled by the use of this word and believe that they would understand it applied to employee of defendant whose duty it was to operate the car. Such instructions frequently use the plural terms the "agents" and "servants" of defendants operating the car or train and such language has been held not to be misleading. [Meng v. St. Louis Surburban Ry. Co., 108 Mo. App. 553, 84 S.W. 213.] The instruction given on behalf of defendant limited the duty to the motorman by instructing the jury that "if the motorman in charge of said street car did not see, or in the exercise of ordinary care upon his part would not have seen the imminent peril, if any, of plaintiff . . . in time, etc. . . . your verdict must be for the defendant." We hold that the use of the plural term in plaintiff's instruction was not, therefore, prejudicial error.
We also overrule defendant's final contention that it was error for the court to allow plaintiff to show by its expert witness the distance in which a work car could be stopped if equipped with air brakes. Plaintiff did not know what car struck him and therefore did the only thing he could do — showed the equipment of the work cars used on that street car line and the distance in which it was possible to stop both those equipped with hand brakes, and those equipped with air brakes. Defendant had complete information as to which car struck plaintiff, and could have shown what kind of brakes it had, but offered no evidence at all. Defendant's counsel, in the cross-examination of plaintiff, exhibited a picture of a work car which he intimated was the one which struck plaintiff, but did not offer it in evidence and later objected to plaintiff's counsel using it, in the examination of plaintiff's expert witness, upon the ground that it had not been identified by plaintiff as the work car that struck him. Since the uncontradicted evidence was that the work car actually was stopped in 150 feet or less, defendant could not have been prejudiced by the testimony that it was possible to stop it within that distance. This court said, in Ellis v. Metropolitan Street Ry. Co., supra (234 Mo. l.c. 685, 138 S.W. 23): "We have held that, when a car actually stops in a certain distance, there is no need of theorizing upon inability to stop in that distance. In such case an expert is functus officio."
The judgment is affirmed. Ferguson and Hyde, CC., concur.
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All of the judges concur.