Summary
In Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065, Division One of this court, which decided the Bobos and Huckleberry cases, had before it this situation: The plaintiff was riding a motorcycle westward on Easton Avenue in Wellston.
Summary of this case from Ridge v. JonesOpinion
September 4, 1930.
1. NEGLIGENCE: Motor Vehicle: Intersecting Street: Signal. The statute (Subdivs. J and K, Sec. 21, Laws 1921, 1st Ex. Sess., p. 94) does not require the driver of a motor vehicle, on approaching intersecting streets, to warn persons approaching the same intersection from the opposite direction, of his intention to turn his vehicle to the right or left, and therefore failure to give such warning under such circumstances is not negligence per se.
2. ____: ____: ____: Left Turn: Warning. In the absence of any statute on the subject, it is the common-law duty of the driver of a motor vehicle to give a signal or warning of his intention to turn his vehicle to the right or left at intersecting streets or highways, where the circumstances or conditions are such that care and prudence would dictate that such signal or warning be given in order to protect the lives and property of other persons then on or using such streets or highways.
3. ____: ____: ____: Signal: Common Law Duty: Instruction. Although the facts and circumstances made it the common-law duty of defendant, about to make a left-hand turn into an intersecting street, to give a signal or warning of his intention to do so, it is not error to refuse an instruction for plaintiff which does not require the jury to find the facts that would have made it the duty of defendant to give such warning. No statute declares that the failure of the driver of a motor vehicle to give a warning or signal of his intention to turn into an intersecting street is negligence, and an instruction which in effect declares such failure is negligence per se is not authorized; and it is not error to refuse an instruction which in effect declares such failure to be negligence per se, and does not require the jury to find the facts necessary to make it the duty of defendant, at common law, to give the signal or warning.
4. ____: ____: Humanitarian Doctrine. Defendant owed plaintiff no duty under the humanitarian rule until he saw or by the exercise of the highest degree of care could have seen him in a position of peril and either oblivious thereto or unable to extricate himself.
5. ____: ____: ____: Duty to Look. It is the duty of the driver of a motor truck, about to turn into an intersecting street to be on the lookout for motor vehicles coming from the opposite direction, and he is to be held to have seen what he could have seen had he been looking; and evidence that when he entered the intersection he could have seen, if he had looked, defendant's motorcycle twenty feet from the point of collision and that a collision was inevitable unless something was done to prevent it and that the truck could have been stopped within three or four feet, and that he did not slacken its speed or attempt to stop until the motorcycle was directly in its path, makes a case for the jury under the humanitarian rule for the driver of the motorcycle against the driver of the truck, for personal injuries resulting from the collision.
6. ____: ____: ____: Highest Degree of Care. An instruction is not erroneous in requiring the driver of a motor vehicle to exercise the highest degree of care in traveling on any highway on which the public are accustomed to travel, whether it be a public road or a city street.
7. ____: ____: ____: ____: Highway: Statute: Proof. The statute (Sec. 19, Laws 1921, 1st Ex. Sess., p. 91) requires every person operating a motor vehicle on the highways of this State to "exercise the highest degree of care," and Section 3 of the same act defines "highway" as "any public thoroughfare for vehicles, including state roads, county roads, and public streets, avenues, boulevards, parkways or alleys in any municipality;" and those words include all highways traveled by the public regardless of their legal status, and it is not necessary to prove that the city avenue was a public highway.
8. ____: ____: ____: In Position of Peril: Contributory Negligence. Contributory negligence is not a defense to a case grounded on the humanitarian doctrine. Where the evidence shows that plaintiff, driving a motorcycle, was in a position of peril as defendant turned his motor truck from the street on which both were traveling into an intersecting street, and that defendant saw or could have seen that a collision was inevitable unless one or the other stopped and defendant did not stop or attempt to slacken his speed and could have stopped in time to have avoided the collision, it is no defense under the humanitarian rule that plaintiff's own evidence shows that he could have stopped his motorcycle before reaching the point of collision after he discovered the truck was attempting to turn into the intersecting street across his path; such evidence would convict plaintiff of contributory negligence, but does not bar his right to recover under the humanitarian doctrine.
9. ____: ____: ____: Failure to Warn: Looking: Instruction. Where plaintiff was fully aware of the approach of defendant's motor truck traveling from the opposite direction in the same street, an instruction based solely upon defendant's failure to warn plaintiff of his approach should not be given; but plaintiff was not required to know that defendant intended to change his course and turn into an intersecting street across his path, and where there is no evidence that plaintiff knew defendant intended to change his course of travel into the intersecting street, it cannot be ruled as a matter of law that, if a warning or signal had been given before or as defendant turned his truck into the intersecting street across the path of plaintiff's motorcycle, a collision would not have occurred; and an instruction based on defendant's failure to warn should not be refused, where the view was unobstructed, and there is evidence that defendant did not exercise the highest degree of care in failing to give a warning signal.
10. ____: Case Under Humanitarian Rule: Instruction. Where the evidence makes a prima-facie case under the humanitarian rule pleaded, instructions which ignore that case, and direct a verdict for defendant in the event the jury find that plaintiff was guilty of contributory negligence, are erroneous, and reversible error.
Appeal from Circuit Court of St. Louis County. — Hon. John W. McElhinney, Judge.
REVERSED AND REMANDED.
Inman, Horsefield Cravens for appellant.
(1) It was the duty of the defendant to give a signal of his intention to turn his truck at the intersection, and plaintiff's offered instruction, refused by the court, submitting that issue, should have been given. Laws 1921 (1st Ex. Sess.) p. 94, sec. 21, subsec. J; Thompson v. Smith, 253 S.W. 1023; Mueller v. Holekamp, 260 S.W. 122; Berry on Automobiles (4 Ed.) 848, secs. 909, 910. Failure to so signal is negligence per se. Propulonris v. Const. Co., 213 S.W. 792. (2) Plaintiff was not guilty of contributory negligence as a matter of law. Trimbell v. Price, 282 S.W. 89; Reitz v. Hodgkins, 185 Ind. 163. (3) The evidence entitled plaintiff to go to the jury upon the humanitarian doctrine, and plaintiff's offered instruction properly submitted that doctrine. Evans v. Klussmeyer, 301 Mo. 361; Treadway v. United Rys. Co., 282 S.W. 441. (4) The instruction properly hypothesized the defendant's duty to exercise the highest degree of care under the humanitarian doctrine, and should have been given. Gude v. Weich Bros., 16 S.W.2d 59; Hults v. Miller, 299 S.W. 85; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; State ex rel. Dowell v. Allen, 250 S.W. 580; Threadgill v. United Railways Co., 279 Mo. 466, 214 S.W. 161; Monroe v. Railway Co., 297 Mo. 633, 249 S.W. 644; Bruce v. Packing Co. (Mo. App.), 6 S.W.2d 986. (5) Instruction 4, given at the request of the defendant, was erroneous and prejudicial, because it completely ignored and omitted plaintiff's right to recover under the humanitarian or last-chance doctrine, and denied him a recovery if he was guilty of contributory negligence. Burke v. Pappas, 316 Mo. 1235, 293 S.W. 145; Spindler v. Wells, 276 S.W. 387; Yakoboski v. Wells, 253 S.W. 72; Jackson v. Railway Co., 232 S.W. 752; Nipper v. Railway Co., 145 Mo. App. 224. (6) Instruction 5 is erroneous and prejudicial, because it tells the jury that if plaintiff was guilty of contributory negligence he has no case and their verdict must be for the defendant. This instruction ignores and specifically excludes the humanitarian doctrine from the consideration of the jury. Authorities under Point 5. (7) Non-direction constitutes reversible error where good specific instructions are asked and refused. Morgan v. Mulhall, 214 Mo. 462. (8) Since defendant's instructions numbered 4 and 5 are erroneous they are presumed to be prejudicial. Avery v. Insurance Co., 280 S.W. 726.
Hausner Versen and George Barnett for respondent.
(1) The court properly refused Instruction 1 requested by plaintiff because: (a) The instruction was erroneous and improper for the reason that it required defendant to give a warning when plaintiff admitted that he was fully aware of the presence of the truck. Under these circumstances defendant's failure to sound horn could not have been the proximate cause of the collision. Priede v. Crandall, 187 S.W. 605; Hannah v. Butts, 14 S.W.2d 31; Steigleder v. Londale, 253 S.W. 487; Peterson v. United Railways Co., 270 Mo. 67, 192 S.W. 938; De Wolf v. Stix, Baer Fuller D.G. Co., 240 S.W. 1094; Winkler v. United Railways Co., 229 S.W. 229; Woods v. Railways Co., 187 S.W. 11; Murray v. Transit Co., 176 Mo. 183; Hutchinson v. Railway, 195 Mo. 546; Heintz v. Transit Co., 115 Mo. App. 667; Mockowik v. Railway, 196 Mo. 550; Gubernick v. United Railways Co., 217 S.W. 34. (b) The instruction was erroneous and therefore properly refused, for the reason that the statute with reference to giving a signal of intention to turn to the left is entirely for the protection of persons approaching from the rear. Laws 1921 (1st Ex. Sess.) 93. (c) The instruction could not have been predicated upon any theory of common-law negligence, for the reason that it did not require a finding that the acts therein referred to were done negligently. Curlin v. Merchants Bridge Terminal Ry. Co., 232 S.W. 215; Burton v. Ry. Co., 111 Mo. App. 617. (d) Where plaintiff depends upon the theory of negligence per se because of the alleged violation of a statute requiring an automobile driver on a public street to use the highest degree of care, then the existence of the street as a public highway must be alleged and proved. State v. Hood, 143 Mo. App. 313; State v. Cunningham, 61 Mo. App. 188; State v. Parsons, 53 Mo. App. 188; State v. Transue, 131 Mo. App. 323; State v. Scott, 37 Mo. App. 541. (e) The highest degree of care is required of the driver of an automobile only when same is being operated upon a public street. There is not a syllable of evidence in the record to the effect that either Easton Avenue or Kienlen Avenue was a public street. Laws 1921 (1st Ex. Sess.) 77. (f) The courts will not take judicial notice of the existence, location or nature of streets. Fidelity Casualty Co. v. Railways Co., 231 S.W. 277; Breckenridge v. Ins. Co., 87 Mo. 62; Vonkey v. St. Louis, 219 Mo. 37; Columbia Taxicab Co. v. Mercurio, 236 S.W. 1096. (2) Plaintiff was guilty of contributory negligence as a matter of law. Popping v. Bourne, 191 S.W. 1032. (3) The court properly refused to give Instruction 2 requested by plaintiff, because: (a) The statute requires the driver of an automobile to use the highest degree of care only when operating an automobile on a public street. There is no proof in the record that the streets in question were public. Laws 1921 (1st Ex. Sess.) 77. (b) The instruction was erroneous and therefore properly refused, for the reason that it was predicated upon the fact that plaintiff was in a position of danger when approaching Kienlen Avenue. Obviously, under all the evidence, the plaintiff was not in a position of danger when approaching Kienlen Avenue, and the instruction, therefore, was not within the purview of the evidence. State ex rel. Peoples Bank v. Melton, 251 S.W. 447; Foster v. Davis, 252 S.W. 433. (c) The instruction was predicated upon defendant's alleged negligence in failing to warn the plaintiff of his approach. Plaintiff was fully aware of the presence of defendant's truck, and failure to warn, therefore, could not have been the proximate cause of plaintiff's injury. (d) The facts did not justify the submission of the case under the humanitarian doctrine. Popping v. Bourne, 191 S.W. 1032; Whitaker v. Mo. Pac. Ry. Co., 15 S.W.2d 1001; Heard v. Ry. Co., 16 S.W.2d 719. (e) The instruction assumes that plaintiff was in a position of danger when approaching Kienlen Avenue. Hunter v. Ry. Co., 248 S.W. 998; State ex rel. Fire Ins. Co. v. Trimble, 250 S.W. 393; Woolston v. Blythe, 251 S.W. 145. (4) Plaintiff's Instruction 4 was properly given. The plaintiff was not entitled to go to the jury under the last-chance doctrine under defendant's instruction covering last-chance doctrine. In absence of request for proper instruction court is not obligated to give one. Doty v. Life Ins. Co., 16 S.W.2d 712; Yuronis v. Wells, 17 S.W.2d 518. (5) Defendant's Instructions 4 and 5 were not erroneous and could not, therefore, be presumed to be prejudicial. (6) The verdict was for the right party. Defendant's alleged negligence was not the proximate cause of the plaintiff's injury. Brubaker v. Elec. Light Co., 130 Mo. App. 439; Howard Brown Realty Co. v. Berman, 245 S.W. 606; Battles v. United Rys. Co., 178 Mo. App. 596; King v. Ry., 211 Mo. 1; Schmidt v. Transit Co., 140 Mo. App. 182; Kennedy v. Quarry Construction Co., 291 S.W. 475.
Action by appellant, plaintiff below, to recover damages for alleged personal injuries. Verdict and judgment for defendant, and plaintiff appealed.
Plaintiff's injuries were caused by a collision between a motorcycle which he was riding and an automobile truck driven by defendant. The collision occurred at the intersection of Easton and Kienlen Avenues in the city of Wellston. Easton Avenue runs east and west, is fifty feet wide from curb to curb, and has a double line of street car tracks in the center thereof. Kienlen Avenue is about thirty feet wide, runs north and south, and intersects but does not extend south of Easton Avenue.
The evidence favorable to plaintiff tends to show that he was riding a motorcycle westward on Easton Avenue in the space between the north rail of the north car track and the north curb of Easton Avenue, at a rate of speed variously estimated from twelve to twenty-five miles per hour; that defendant was driving his motor truck eastward on Easton Avenue in the eastbound car track; that when plaintiff reached the east curb line of Kienlen Avenue, defendant's truck was at a point about twenty-five feet west of the west line of Kienlen Avenue and, at that time suddenly and without signal or warning turned his truck to the left in an attempt to enter Kienlen Avenue, and the left end of the front bumper of defendant's truck struck the rear wheel of the motorcycle. The force of the collision threw plaintiff from the motorcycle and caused the injuries for which this suit is brought.
Other facts will be stated in course of the opinion.
The first complaint is that the court erred in refusing to give plaintiff's requested instruction number one. This instruction, in substance, directed a verdict for plaintiff in event the jury found that defendant turned his truck northward Negligence: across Easton Avenue and toward Kienlen Avenue Under Statute: without first giving any signal or warning of his At Common Law. intention to make such turn and that defendant's failure to give a signal before turning, if he did so fail, directly caused plaintiff's injuries, if any.
Plaintiff states his position regarding this instruction as follows:
"Under Subsection J, Section 21, of the Laws of Missouri 1921, First Extra Session, it was the duty of the defendant, before turning to the left at the intersection, to give a signal with his hand of his intention to turn, and while the statute specifies that the signal was to be such as would be visible to one approaching from the rear, it cannot be disputed that such a signal would be equally a warning to one approaching from the opposite direction. The violation of a statutory duty is negligence per se. But, in the absence of any trouble on the subject, the sudden turning of an automobile to the left across a busy intersection without an ample signal is negligence as violative of a common-law duty."
Subsection J, Laws of Missouri 1921 (1st Extra Session), page 94, to which plaintiff calls attention, provides as follows:
"(j) An operator or driver intending to turn his vehicle to the left shall extend his arm at an angle below horizontal so that the same may be seen in the rear of his vehicle, and shall slow down and approach the intersecting highway so that the left side of his vehicle shall be as near as practicable to the center line of the highway along which he is proceeding before turning."
When this statute is read in connection with Subsection K of the same statute, the intention of the Legislature, in enacting these statutes becomes at once apparent. Subsection K reads as follows:
"(k) If a motor vehicle is equipped with a mechanical or electrical signalling device, which will display a signal plainly visible from the rear and indicating intention to turn or stop, or that the speed of the motor vehicle is being slowed, the signals with the hand and arm, herein required, need not be given, . . ."
If defendant's truck had been equipped with a mechanical or electrical signaling device which displayed a signal plainly visible from the rear, and by the use of such device defendant had indicated his intention to turn to the left, it would not have served as a warning to plaintiff, because he was not in a position to see such a signal, yet the giving of such a signal would have excused defendant from giving a signal with his hand and arm, because Subsection K of the statute expressly so provides. The language of the statute indicates that the signal of intention to turn a motor vehicle to the right or left was intended as a warning to persons approaching from the rear. No doubt it would have been wise to have required a signal or warning to persons approaching from the opposite direction, but as the Legislature did not see fit to do so, we have no authority to incorporate such a provision into the statute by construction. As the statute does not require the driver of a motor vehicle, on approaching intersecting streets, to warn persons approaching the same intersection from the opposite direction, of his intention to turn his vehicle to the right or left, failure to give a warning under such circumstances would not be negligence per se.
However, in the absence of any statute on the subject, it is the common-law duty of the driver of a motor vehicle to give a signal or warning of his intention to turn his motor vehicle to the right or left at intersecting streets or highways, where the circumstances and conditions are such that care and prudence would dictate that such signal or warning be given in order to protect the lives and property of other persons then on or using such highways. [Thompson v. Smith, 253 S.W. 1023.] Although the facts and circumstances in this case were such as made it the duty of defendant in the absence of a statutory requirement, to warn plaintiff of his intention to turn his truck to the left, yet, we cannot regard plaintiff's instruction number one as properly submitting that question to the jury because the instruction did not require the jury to find the facts which would make it the common-law duty of defendant to give such warning. The instruction was properly refused, (1) because it treated the failure to give the signal as negligence per se, although the statute did not require the signal to be given, and (2) because it did not require the jury to find the facts necessary to make it the duty of defendant to give the signal.
It is next contended that the court erred in refusing to give plaintiff's requested instruction numbered two. Plaintiff sought by this instruction to submit the case to the jury Case Under under the humanitarian doctrine. Defendant contends Humanitarian that the instruction was properly refused because Rule. the facts did not warrant the submission of the case under that doctrine.
Defendant owed plaintiff no duty under the humanitarian rule until he saw or by the exercise of the highest degree of care could have seen him in a position of peril and either oblivious thereto or unable to extricate himself. Plaintiff was not in peril until the truck turned to the left. Defendant's act in turning the truck without giving a signal or warning of his intention so to do, might have been primary negligence, but it was not negligence under the humanitarian rule, because plaintiff was not in peril until the truck turned. Defendant's liability under the humanitarian rule depends upon whether plaintiff's injuries were caused by negligent acts of defendant after he saw or should have seen plaintiff in a position of peril. While defendant's failure to give a signal or warning of his intention to turn the truck was not negligence under the humitarian rule, it was a circumstance tending to show why plaintiff might have assumed that the truck would not turn and for that reason he could cross the intersection in safety, but we must determine whether or not the case was submissible under the humanitarian doctrine in the light of defendant's acts after the truck turned.
The evidence favorable to plaintiff tended to show the following facts:
As plaintiff approached the intersection from the east he saw defendant's truck approaching the same intersection from the west. At that time defendant was from eighty to one hundred feet west of the intersection and plaintiff was fifty feet east of it. During the time plaintiff watched the truck while he traveled that fifty feet, he did not hear any warning or see defendant give any signal of his intention to turn the truck to the left. Other witnesses testified that no signal or warning was given. When defendant reached a point about twenty-five feet west of the intersection, he turned his truck to the left without giving any signal or warning of his intention so to do, and cut across the corner of the intersection in a northeasterly direction. As plaintiff approached the intersection, he looked to the north to see whether anyone was coming south on Kienlen Avenue and saw one machine slowing up to make a stop. He then looked back west and saw the truck about even with the west line of Kienlen Avenue and crossing the westbound car track in a northeasterly direction, and believing that it was so close upon him that if he attempted to stop, it would place his motorcycle in the path of the truck, he swerved to the right, increased his speed and attempted to pass in front of the truck in order to avoid a collision.
He almost escaped in safety. The left end of the front bumper of the truck struck the rear wheel of the motorcycle. At the time plaintiff saw the truck crossing the westbound car track, he was at the east line of the intersection, traveling at a rate of speed variously estimated at from twelve to twenty-five miles per hour. As he approached the east line of the intersection, he made no attempt to stop, but proceeded across the intersection. The collision occurred from three to five feet east of the west curb of Kienlen Avenue and three or four feet north of the north line of Easton Avenue.
Easton Avenue is fifty feet wide, and two street car tracks occupy a space of fifteen feet in the center thereof. The north rail of the westbound car track is approximately twenty feet from the point of collision. Defendant testified that he could have stopped the truck within three or four feet at any time while he was making the turn, but that he did not slacken his speed or attempt to stop until he saw the motorcycle directly in front of him, at which time he "jammed the brakes on" and stopped within two or three feet.
Viewing the evidence in a light most favorable to plaintiff it tends to show that if defendant had been exercising the care enjoined upon him by statute, he could have prevented the collision. It was his duty to be on the lookout and it will be held that he saw what he could have seen if he had been looking. He started to turn the truck when he was twenty-five feet west of the intersection. At that time plaintiff was ten feet east of the intersection, traveling at a rate of speed variously estimated at from twelve to twenty-five miles per hour without making any preparations to stop before crossing the intersection. After the truck entered the intersection and was crossing the westbound car track, it was then twenty feet from the point of collision. At that time plaintiff had reached the east line of the intersection. If defendant had been then looking, as was his duty to do, he could have seen that plaintiff intended to cross the intersection and that a collision was inevitable unless something was done to prevent it. The truck was then twenty feet from the point of collision. Defendant testified that he could have stopped the truck within three or four feet, but did not slacken its speed or attempt to stop it until the motorcycle was directly in its path. He then applied the brakes and stopped within two or three feet. The evidence made a prima-facie case for plaintiff under the humanitarian rule and should have been so submitted to the jury. [Banks v. Morris Company, 302 Mo. 254, 270, 257 S.W. 482.]
Defendant contends that the instruction, as requested, was erroneous in that it exacted of him the exercise of the Highest highest degree of care. Degree of Care.
The statute requires that every person operating a motor vehicle on the highways of this State shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, and at a rate of speed so as not to endanger the property of another or the life or limb of any person. [Sec. 19, p. 91, Laws 1921, First Extra Session.] Section 3 of the same act defines the word "highway" as "any public thoroughfare for vehicles, including state roads, county roads and public streets, avenues, boulevards, parkways or alleys in any municipality." Defendant's contention on this point is that the statute requiring persons driving motor vehicles on the highways of this State, has no application to this case because there was no evidence that the street on which defendant was driving his truck was a public highway.
The evident purpose of the Legislature in enacting this statute was to protect the lives and property of persons while on or using the roads of this State where the public are accustomed to travel. It would be giving the statute a strained and narrow construction to hold that the Legislature did not intend to protect the lives and property of persons on or using a highway continuously traveled by the public generally, unless such highway had been legally established by constituted authority or by user for the statutory period of time. Keeping in mind the purpose of the statute, it is reasonable to conclude that the word "highways" was used in the statute in its popular rather than its technical sense and was intended to include all highways traveled by the public, regardless of their legal status. A similar question was decided by the Supreme Court of Arkansas in Simmons v. State, 232 S.W. 597. There defendant was convicted of the violation of a statute prohibiting drunkenness on a public highway, street, park or thoroughfare. On appeal contention was made that the conviction should be reversed because there was no evidence that defendant was in a drunken condition on a public highway. The court disposed of that contention by saying:
"The word `highway,' as used in this statute, was intended to embrace any road or thoroughfare used and traveled by the public, even though the same was not laid out by the county court and technically designated as a public road or highway. `Highway' is used in its popular rather than its technical sense, and is synonymous with `road,' which is `an open way of public passage for vehicles, persons, and animals.' [Webster's New International and Funk Wagnall's dictionaries.]
"There was testimony in the record tending to show that the appellant was in an intoxicated condition on a `road' leading from the church house at Mt. Maria, which was being traveled by the public, and also on the street in Murfreesboro. This testimony was sufficient to sustain the charge as far as the word `highway' is concerned, for a `street' is `a public highway.' [Webster's New International Dictionary.] The road was being used by the public."
In the instant case, the evidence was that defendant was operating his truck on Easton Avenue, a much traveled street in the city of Wellston. At the time in question there were three lines of automobile and other vehicular traffic on this street. Two lines of street cars were operated thereon. This evidence would warrant a finding that the street was traveled by the public generally and was a highway within the meaning of the statute.
It is next contended that the instruction was erroneous because it was predicated on the fact that defendant was in In Position a position of danger when approaching Kienlen Avenue of Danger. when there was no evidence of that fact.
The evidence was that when defendant turned the truck to the left, he was then twenty-five feet west of the intersection. At that time, plaintiff was ten feet east of and approaching the intersection at a rate of speed variously estimated at from twelve to twenty-five miles per hour. There was evidence that he slackened the speed of his motorcycle about three miles per hour as he approached the intersection, but there was no evidence that he intended to stop or made any effort to do so before crossing the intersection. The evidence tends to show that the view was unobstructed and if defendant had been looking as plaintiff approached the intersection, he could have then seen that plaintiff was making no preparations to stop at the intersection and that a collision was inevitable unless something was done to prevent it. The evidence tends to show that plaintiff was in peril as he approached the intersection. His peril arose as soon as it became apparent from his conduct that he intended to cross the intersection without stopping. [Burke v. Pappas, 293 S.W. 145, 316 Mo. 1235.] In this connection, defendant contends that plaintiff was never in a position of peril because his own evidence showed that he could have stopped his motorcycle before reaching the point of collision, after he discovered the truck had turned to the left. Such evidence would convict him of contributory negligence, but contributory negligence is not a defense to a cause under the humanitarian rule.
It is next claimed that the instruction was properly refused because it was predicated on defendant's alleged Failure negligence in failing to warn plaintiff of the approach to Warn. of the truck when the evidence all showed that he was fully aware of the presence of the truck.
True plaintiff was aware that the truck was approaching from the west, but there was no evidence that he knew defendant intended to change its course to the left. In the preceding paragraph we pointed out that when defendant turned the truck to the left at a point twenty-five feet west of the intersection, plaintiff was then ten feet east of the intersection traveling at a rate of speed estimated at from twelve to twenty-five miles per hour, and making no preparations to stop before crossing the intersection. Plaintiff was then thirty-five feet from the point of collision. The view was unobstructed. We cannot say as a matter of law that defendant by the exercise of the highest degree of care could not have seen the situation or warned plaintiff at that time, or that an adequate warning given at that time would not have prevented the collision. That issue should have been submitted to the jury. [Smith v. St. Louis-San Francisco Ry. Co., 9 S.W.2d 939, 945.]
It is next contended that the instruction was properly refused because it assumed that plaintiff was in a position of danger when approaching the intersection. The instruction required the jury to find "that . . . defendant saw plaintiff, or by Assuming the exercise of the highest degree of care could have Fact. seen him, on Easton Avenue either crossing or approaching its intersection with Kienlen Avenue, and in danger of being struck," etc. We see no merit in this criticism of the instruction.
It is our conclusion that plaintiff made a prima-facie case under the humanitarian rule, and the court erred in refusing to submit the case so made under plaintiff's requested instruction numbered two. We also think the court erred in Ignoring giving defendant's instructions four and five. Humanitarian These instructions ignored the case made under the Case. humanitarian rule and directed a verdict for defendant in event the jury found that plaintiff was guilty of contributory negligence. This was error. Contributory negligence is not a defense to a case under the humanitarian rule. [Gould v. C.B. Q. Railroad Co., 290 S.W. 135, 315 Mo. 713; Burke v. Pappas, 293 S.W. 142, 316 Mo. 1235; Bobos v. Krey Packing Co., 296 S.W. 157, 317 Mo. 108.]
For the errors noted, the judgment is reversed and cause remanded. All concur.