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McClanahan v. St. Louis Public Service

St. Louis Court of Appeals, Missouri
Sep 11, 1951
242 S.W.2d 265 (Mo. Ct. App. 1951)


No. 28064.

September 11, 1951.


Mattingly, Boas Richards, Lloyd E. Boas, St. Louis, for appellant.

Paul H. Koenig, William L. Mason, Jr., Wm. E. Dietz, St. Louis, for respondent.

This is an action brought by the next friend of a 10 year old boy for personal injuries sustained by him when he fell from the outside of a moving street car belonging to the defendant. As a result of the fall plaintiff's left leg was badly mangled requiring an amputation 5 inches below the knee. A circuit court jury awarded plaintiff $6,000 whereupon defendant appealed from the judgment of the trial court overruling its motion for judgment pursuant to its motion for a directed verdict. The appeal is based on two grounds: first, that plaintiff was a trespasser on defendant's streetcar; was guilty of contributory negligence as a matter of law, and is, therefore, not entitled to recover on primary negligence; second, that the evidence failed to establish a submissible case under the humanitarian doctrine.

The verdict-directing instruction upon which the cause was submitted to the jury, plaintiff's Instruction No. 1, is as follows: "The Court instructs the jury that even though you may find and believe from the evidence that the plaintiff was a trespasser on the street car described in the evidence and was himself guilty of negligence which directly contributed to cause his injury, if any, nonetheless, you are instructed that if you find and believe from the evidence that on the occasion shown to you in the evidence the said street car was operated by the defendant, through its motorman; and if you further find and believe from the evidence that the plaintiff obtained a hold on the outside of the street car at the middle exit doors and clung to it while it was in motion; and if you further find and believe from the evidence that the plaintiff was then and there in a position of imminent peril; and if you further find and believe from the evidence that the motorman saw plaintiff in such position; and if you further find and believe from the evidence that thereafter the motorman directly caused the street car to increase speed and give and make a sudden jerk; and if you further find and believe from the evidence that the motorman thereby failed to exercise ordinary care in the use of the means and instrumentalities at hand, and for plaintiff's safety, after he saw plaintiff in a position of imminent peril; and if you further find and believe from the evidence that plaintiff was thrown from, or fell from, the said street car, directly due to the said increase of speed and jerk; and if you further find and believe from the evidence that the plaintiff was injured; and if you further find and believe from the evidence that his injury was directly due to being so thrown or falling from the said street car; then you are instructed that your verdict should be for the plaintiff and against the defendant."

Our duty is to examine the whole record to determine whether the evidence, considered in the light most favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregarding all evidence to the contrary from the defendant's witnesses unless it aids plaintiff's case, makes a submissible case under the humanitarian doctrine. Smith v. Siedhoff, Mo.Sup., 209 S.W.2d 233.

The evidence, stated in this light, eliminating all irrelevant material, shows that on May 21, 1946 at the western terminus of the Cass line, one of defendant's streetcars stopped at the "loop" which was then located at Belt and St. Louis Avenues; that the plaintiff and other boys were "playing around" the streetcar; that the car at the time it was boarded by the plaintiff was going downtown, headed east; that as the street car started, according to one witness, or while it was traveling between 5 and 10 miles per hour, according to another, the boy ran out from the curb, jumped up and grabbed onto the side of the car at the rear double exit door on the right-hand side of the streetcar, holding onto "two things" with his hands (apparently iron grab bars or handholds) and with his toes on "that little ledge by the door" — "* * * a little place you put your feet on." After the streetcar left Belt Avenue it went "* * * slow a little bit, then started speeding up" until it was going 25 or 30 miles per hour when it reached the alley 100 feet east of Belt Avenue. At the time the boy fell off the streetcar it was approximately in front of 5468 St. Louis Avenue. Plaintiff testified that after he jumped onto the side of the streetcar and as he was hanging onto the side of the car the motorman "turned toward the back * * * turned around and looked at me and motioned to me three times, and then he speeded up * * *." A motorist following the streetcar observed that the motorman was "making these motions * * * seated this way and turned around facing south * * * facing the rear and he was making motions"; the motorman "flagged him off and the kid refused to get off * * * We had traveled between 20 and 30 yards. At the time I observed the motorman give him the second wave back * * * he was turned around and looking southwest. He was traveling east and looking southwest * * in the direction of the center door * * * the motorman waved back * * * in that general direction towards the middle door * * * the streetcar * * * made a lunging motion, it lunged * * * the streetcar lunged forward * * * Momentarily the streetcar picked up speed, a great amount of momentum, and it held it, I would say, for about 2 or 3 feet. It dropped the speed * * * when the car picked up speed * * * I am almost certain that this is what shook the boy off * * * the motorman was gesturing at the back door."

The boy testified as follows:

"Q. After you felt the car speeded up what, if anything, else did you feel or notice? A. My hand was giving away. * * * When he speeded up he give a little jerk. My hands gave away right then.

"Q. After that took place what happened to you? A. I fell."

He further testified that when the car shook he "lost his balance."

Witness Harold F. Boyer testified that the boy was "thrown off the streetcar" and landed on his feet but could not "keep his feet" because of the speed of the streetcar. He further testified that he saw the boy run out from the curb and grab the streetcar and that the streetcar traveled about 80 feet before the boy fell off.

Witness Harry J. McMackin saw the boy "hanging near the rear windows on the right side of the streetcar" behind the rear door, hanging onto the horizontal bars that guard the windows, and stated that he had his feet "pulled up".

The operator of the car, Walter Grzeskoviak, testified that he could have brought the streetcar to a gradual stop if he wanted to — there was nothing there to prevent him from so doing. In his deposition the operator stated he could not say whether he did or did not jerk the streetcar.

One of plaintiff's playmates, Lon Raymond Hutchcraft, testified that he "watched Billy and when the car had gone about 2 blocks it looked to me like Billy turned around and jumped off of the car," while another boy who was at the scene, one Edward Rudolph Braska, testified:

"Q. How far down did the streetcar go before anything happened? A. About the middle of the block.

"Q. What, if anything, did you see when the streetcar got about the middle of the block? A. It seemed like someone was jerking him.

"Q. What seemed like that? A. On the streetcar. It seemed like the streetcar was jerking.

"Q. It did? A. Yes. * * *"

The witness later testified "I guess the driver did make it go faster * * * it seemed like it went faster."

One Prothero testified that looking into the mirror of a 900 type streetcar such as the one involved in this tragedy you could see the "whole interior of the car all the way to the rear."

Plaintiff's Exhibit 9, a photograph, shows the handles outside the streetcar at the exit doors with the doors closed and there was expert testimony that this photograph shows what an operator could see by his rear view mirrors.

As to the first point: plaintiff's brief acknowledges that plaintiff was a trespasser on defendant's streetcar and that recovery on primary negligence is barred, so that the first assignment on this appeal is eliminated.

The sole question for decision, therefore, is whether plaintiff made a humanitarian case. As stated by respondent, the formula requires the following proof: (1) that plaintiff was in a position of imminent peril; (2) that defendant had notice thereof; (3) that defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) that he failed to exercise ordinary care to avert such impending injury; and (5) that by reason thereof plaintiff was injured.

Even a trespasser can recover under the humanitarian doctrine in a case of discovered peril. Hall v. Missouri Pac. R. Co., 219 Mo. 553, 118 S.W. 56; Quirk v. Metropolitan St. Ry. Co., 200 Mo.App. 585, 210 S.W. 103. In the former case the court said, 219 Mo. loc. cit. 586, 118 S.W. loc. cit. 65: "The status of plaintiff being fixed as that of a trespasser, the only duty owing to him by the defendant was to use reasonable care not to injure him after he was discovered and known to be in a place of imminent danger or peril."

Does the humanitarian doctrine apply? Counsel for plaintiff practically concedes that "plaintiff was not in the legal position of imminent peril from what the streetcar was doing as he clung to it as it moved along." Plaintiff's claim under the humanitarian doctrine is based upon the proposition that plaintiff was in a position of imminent peril "from what the operator was about to do * * * what the operator was going to do — speed up the car and jerk the car"; that thereafter defendant, through its operator, could have averted injury by doing nothing; that defendant failed to exercise ordinary care (which required it to do nothing) but on the contrary speeded the car and jerked the car, after seeing plaintiff hanging onto the outside of the car, thereby injuring plaintiff.

Defendant contends that plaintiff was not in a position of imminent peril from the operation of the defendant's streetcar; that although plaintiff was in a dangerous position with a possibility of injury, the peril was not certain, immediate and impending, but was remote, uncertain or contingent and constituted at best a bare possibility of injury which is not sufficient to create a "position of imminent peril"; that even if plaintiff was in a position of imminent peril the evidence failed to prove knowledge on the part of the defendant's motorman of the plaintiff's position; and that there was no evidence that the defendant's operator could have avoided the injury, even if plaintiff was in peril and was discovered; that there was no appreciable time between the operator's alleged negligence and the casualty and therefore no opportunity to avert the accident; and further that the negligent acts or omissions were not shown to have occurred after the arising of the situation of imminent peril, as required.

It is true that the facts in this case do not fall into the conventional and orthodox humanitarian pattern. There was no inexorable circumstance, situation or agency bearing down on plaintiff with reasonable probability of injury, prior to the negligent act of defendant's operator. True enough, plaintiff was in a precarious position, indeed one fraught with perilous possibilities, as he clung to the side of the streetcar, but something would have to happen other than that which was then happening before injury would befall plaintiff. He would have to slip, faint, lose his footing, jump, or be shaken, thrown, frightened, jerked or pushed off the moving car, or be brushed off by contact with another object along the route of the streetcar, or relax his grip due to fatigue. "Imminent peril" as it is generally understood would not arise under the facts of this case until the occurrence of the negligent act of accelerating and jerking the streetcar. Furthermore, since the arising of the situation of imminent peril and the happening of the casualty were practically simultaneous there was no sufficient time interval for the defendant to have taken any action to avoid the casualty after the arising of the peril. There was no time after plaintiff's hands were pulled away from the grabirons for the defendant's motorman to have taken any effective action to prevent or avoid the plaintiff's injuries.

The humanitarian rule, however, has been applied in this situation in a number of cases even though the same negligent act created the imminent peril and immediately produced the injury. Dalton v. Missouri, K. T. Ry. Co., 276 Mo. 663, 208 S.W. 828; Stipetich v. Security Stove Mfg. Co., Mo.App., 218 S.W. 964; Bobos v. Krey Packing Co., 317 Mo. 108, 296 S.W. 157; Stevens v. Wabash Ry. Co., 223 Mo.App. 201, 14 S.W.2d 506; Weed v. American Car Foundry Co., 322 Mo. 137, 14 S.W.2d 652; Huckleberry v. Missouri Pac. R. Co., 324 Mo. 1025, 26 S.W.2d 980; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Daniel v. Artesian Ice Cold Storage Co., Mo.App., 45 S.W.2d 548; Took v. Wells, 331 Mo. 249, 53 S.W.2d 389. According to the writer of the opinion in Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 713, loc. cit. 715, some of these cases proceed upon the theory that "plaintiff was in a situation such that, while not in imminent peril, absent the negligent act of the defendant in question, he was in imminent peril if such act was committed * * *." They impose liability under the humanitarian doctrine for the violation of a duty to refrain from the taking of a course of action which likely will produce harm to another who at the time negligently is exposing himself to injury. The plaintiff in these cases is found in a precarious situation of such a character that harm likely will befall plaintiff if defendant takes a certain course of action. Defendant has actual, or constructive, knowledge of the position and situation of the plaintiff and thereafter fails to exercise ordinary care to avoid injuring plaintiff but takes the action which immediately and instantly occasions injury to him. The element of a time interval between the arising of the perilous situation and the occurrence of the casualty, of sufficient duration to enable the defendant to take positive action in avoidance of injury, is absent in this variation of the humanitarian doctrine. In fact, the act of the defendant which imposes liability produces the situation of imminent peril and also produces the casualty practically simultaneously. The liability is not predicated upon failure to avoid injury during a time period when an opportunity is open to the defendant to avoid injury after the arising of the typical situation of imminent peril, but is based upon the duty to exercise ordinary care to refrain from injuring another after discovery or knowledge that his peril is imminent.

The rationale of these cases is to be found in the theory that the act of defendant is wilful, wanton, and reckless, as a result of which the contributory negligence of the plaintiff is immaterial; that the failure of the truck driver, for instance, in the Bobos case, supra, to exercise ordinary care was equivalent to willfulness, wantonness and recklessness. The court so held and in so doing cited Everett v. St. Louis S. F. R. Co., 214 Mo. 54, 93, 94, 112 S.W. 486, in which the Supreme Court quoted with approval a statement made in Cole v. Metropolitan St. R. Co., 121 Mo.App. 605, loc. cit. 612, 97 S.W. 555, loc.cit. 557, as follows: "* * * the mere failure to observe ordinary care in situations of this character is of itself a wanton act * * *." That case specifically held that a charge of willfulness is sustained by proof of negligence. Again, in Cox v. Terminal R. Ass'n of St. Louis, 331 Mo. 910, 55 S.W.2d 685, 686, Gantt, J., specifically stated the rule as follows, loc.cit. 686: "Under our humanitarian rule we hold as a matter of law that a failure to exercise ordinary care to avoid injury after the discovery of period, or after it should have been discovered by the exercise of due care, is wantonness, willfulness, and recklessness", citing the Bobos and Everett cases. See also in this connection Drogmund v. Metropolitan St. R. Co., 122 Mo.App. 154, 98 S.W. 1091.

In the Dalton case, supra, a 12 year old boy was sitting on the top of a boxcar which was standing on a switchyard track. He was knocked from the boxcar by the force of a coupling of other cars with the bunch of cars where plaintiff was located. In the course of his fall he was thrown under the wheel of the car and both arms were cut off. This was held to make out a submissible case on the humanitarian theory, the court saying, 208 S.W. loc. cit. 830: "Even a trespasser, under the humanitarian rule, would have a right of action, if the defendant railway company saw and knew his peril, and then injured him, when by the exercise of ordinary care the injury could have been avoided." And again, 208 S.W. loc. cit. 831: "* * * if the defendants, as a fact, did see him in time to have avoided the accident by the exercise of ordinary care, then they are liable, notwithstanding the fact that the plaintiff was negligent in being where he was at the time of the accident. This is the humanitarian rule. * * *"

In the Stipetich case, supra, a 10 year old boy, while in the act of boarding the defendant's truck while it was standing still, was killed when the driver, knowing the boy's position of danger and knowing that the boy would be hurt if the truck was suddenly started, carelessly and negligently suddenly started the truck forward with a violent jerk throwing the boy to the ground. The court held that the boy "was in imminent peril if the truck was started," 218 S.W. loc. cit. 967; that "it was the driver's duty after knowledge of the boy's position and danger to exercise ordinary care to avoid injuring him, even though he was a trespasser * * *," 218 S.W. loc. cit. 968, and applied the humanitarian rule allowing recovery in spite of the boy's contributory negligence.

In the Bobos case, supra, a 15 year old boy flagged down the defendant's truck, which slowed down and came to a stop. The boy put one foot on the truck, grabbed the handle bar on the side of the cab, and with one foot on the step and the other off the ground and while in the act of pulling himself up into the cab, the truck was caused suddenly and violently to start forward, causing the boy to fall and sustain injuries. The court said, 296 S.W. loc. cit. 161:

"* * * `perilous position' as used in defining and applying the `humanitarian rule' is a relative term. The position of plaintiff while in the act of climbing onto the truck, considered with reference to its standing still, or moving slowly, was no doubt a comparatively safe one, but with reference to the truck's being `suddenly and violently started forward' it was extremely perilous. There was therefore a `present existence' of plaintiff's perilous position before the driver started the truck. See Hall v. [Missouri Pac.] Railroad [Co.], 219 Mo. 553, 589, 118 S.W. 56. * * *

"* * * The negligence charged is that the defendant's driver suddenly and violently started the truck forward while the plaintiff, as he knew, was in a perilous position. All of the alleged acts of negligence on the part of the plaintiff occurred before he got into the perilous position. What occasioned or brought about that situation is wholly without influence in so far as defendant's liability is concerned, if its servant was guilty of the negligence charged. In other words, the case pleaded is one under the humanitarian rule, and contributory negligence is not a defense."

In the Stevens case, supra, a 19 year old boy, desiring to proceed across railroad tracks on which a train was temporarily standing and blocking a street in Kirksville, attempted to climb between the cars. While doing so the train suddenly moved forward, his right foot slipped in between the coupling head and the draw plate, mashing his foot. It was held that the petition, which alleged that "defendant knew or by the exercise of ordinary care on its part could and would have known that plaintiff was crossing between said freight cars at the time, and knew or by the exercise of ordinary care * * * would have known that plaintiff was between said cars, and in the event defendant caused the same to be moved, said plaintiff would be injured thereby * * *," etc. [223 Mo.App. 201, 14 S.W.2d 509], stated a cause of action under the humanitarian theory.

In the Weed case, supra, a worker was underneath a boxcar driving rivets. The defendants' agents with actual knowledge of his position beneath the boxcar, caused the car to move injuring him. The court, in applying the humanitarian doctrine, said, 14 S.W.2d loc. cit. 655: "Having then actual, or what was tantamount to actual, knowledge of conditions, it may be said that, before moving the car upon him, defendants saw the perilous and dangerous situation in which plaintiff was placed. Even though a trespasser, defendants owed him the duty to refrain from wantonly or wrecklessly injuring him. Plaintiff, in his petition, predicates his right of recovery on the humanitarian theory, that of starting and jerking the car upon him after they knew plaintiff was in a perilous predicament. The signalman and the controller were clearly within the scope of their employment in moving the car, and in so doing, while the plaintiff was in a perilous situation to their knowledge, culpable negligence resulted. They owed plaintiff the duty of using reasonable care to refrain from injuring him after they discovered or knew his danger or peril was imminent. Bobos v. Krey Packing Co., 317 Mo. 108, 296 S.W. 157; Stipetich v. Security Stove Mfg. Co. (Mo.App.) 218 S.W. 964. It follows that defendants were not entitled to a directed verdict."

In the Huckleberry case, supra, a tank car loaded with gasoline overturned. The gasoline spilled into trenches and holes near the railroad track. Defendant's employees invited plaintiff and others to help themselves to the gasoline and carry it away. The deceased was standing by a pool of gasoline. Defendant's hoisting engine nearby emitted sparks which ignited the gasoline, causing his death. It was held that the position of the deceased in the absence of fire was a comparatively safe one, but in the presence of fire was extremely perilous; that he was in imminent peril; that defendant had knowledge of that fact in time with the means at hand to have avoided injuring him without injury to anyone else, but failed to warn or otherwise exercise ordinary care to do so.

In the Menard case, supra, deceased was in position of danger in untying a boat. The situation was such that his position was not necessarily perilous if the barge remained stationary but was perilous if the defendant should move the barge. The evidence showed that the agents in charge of the barge knew of his position and notwithstanding permitted the barge to move, whereupon he was thrown into the river and drowned.

In the Daniel case, supra, plaintiff, a 13 year old girl, was invited by an employee of the defendant to take a ride on an elevator used on the premises to carry fruit and vegetables to cold storage rooms. The elevator carried her to the fourth floor where it stopped for several minutes, then slipped down to a midway position between the third and fourth floors. Defendant's employee then appeared upon the third floor at a point near the elevator and where he could see plaintiff. Immediately preceding the injury plaintiff was standing at the east edge of the elevator, looking down, with part of her right foot over the edge of the elevator. "All at once" [45 S.W.2d 552] the elevator started up and its movement caught plaintiff's foot and leg between the elevator and the fourth floor. The petition alleged a position of imminent peril, knowledge, and negligent operation of the elevator, producing the injury. The principal instruction required these findings, and the plaintiff recovered in the trial court. Although the judgment was reversed on appeal because of the improper assumption of controverted facts in the main instruction, the cause was remanded and the court inferentially approved a recovery under these facts with this language, 45 S.W.2d loc. cit. 551: "It is the law in this state that even though a person be a trespasser, yet if the defendant's servant actually knows that he is in a perilous position, and with that knowledge negligently injures him, the servant will be regarded as having acted with utter disregard for the safety of the injured person, and the master will be liable. * * *"

In the Took case, supra, plaintiff alighted from a streetcar getting off at a place called the "Loop" where she intended to transfer to another car. She stood in a spot where she was likely to be struck by the outswing of the streetcar should the car be placed in motion. The car was started, resulting in plaintiff's injury, and she recovered a verdict under the humanitarian rule. The recovery was approved on appeal, the court saying, 53 S.W.2d loc. cit. 393: "Respondent argues that plaintiff was not in imminent peril when the car started. If she was where she was likely to be struck by the outswing of the car, she was in peril just as much as if she had been standing on the track, all of which the defendant knew, or by the exercise of reasonable care could have known. There was ample evidence that the plaintiff was in peril if the car should start; that the respondent knew it — was obliged to know it. The case was properly submitted under the humanitarian rule." (Italics ours).

In the case at bar, although the boy was not in a position of imminent peril at all times after he boarded the streetcar, he was in a precarious situation of danger, of such a nature that the jury properly might find that peril was certain and imminent if the motorman suddenly accelerated and jerked the streetcar. The defendant had notice of the predicament in which plaintiff found himself. There was oral and photographic evidence that the motorman could see plaintiff clinging to the outside of the exit door from the operator's seat. Plaintiff testified that he saw the operator looking at him and motioning at him. He testified "The man turned around and looked at me and motioned to me three times, and then he speeded up and shook it." The witness John Mason saw the operator "flag off" the plaintiff and that the motorman turned around and looked in the direction where the boy was; that he looked "in the direction of the center door."

After acquiring knowledge of the position of the boy on the side of the streetcar (a question which was resolved in the plaintiff's favor by the jury's verdict) there arose a duty on the part of the defendant's operator to exercise ordinary care to refrain from taking the steps which the jury has found produced the casualty. The facts thus bring this case well within the doctrine of the cases of Dalton, Stipetich, Bobos, et al.

If a failure to exercise ordinary care in this manner is the legal equivalent of willful, wanton and reckless misconduct under the Everett, Cole and Cox cases, supra, then the contributory negligence of plaintiff is immaterial and he may recover.

Did defendant's motorman cause the injury by the failure to exercise ordinary care? There was evidence which would lead directly to the conclusion that after motioning to the boy to get off, the motorman suddenly accelerated the speed of the streetcar and caused it to jerk thereby pulling plaintiff's hands from the grabirons and precipitating him to the street. While defendant claims that the evidence does not show that the motorman actually manipulated the controls causing the speed or jerk, such evidence is unnecessary. The testimony that the car was accelerated quickly gives rise to a legitimate inference that the motorman caused the acceleration to occur, and the testimony that the acceleration was accompanied by the jerk and that plaintiff's hands "gave away right then" was sufficient to submit to the triers of the facts the question whether the jerk was caused by the act of the motorman. The evidence was thus sufficient to submit to the jury the question of the degree of care exercised by the motorman and also the question of causation.

Defendant cites the cases of Frailey v. Kurn, 349 Mo. 434, 161 S.W.2d 424, 428, and Stewart v. Missouri Pac. R. Co., 308 Mo. 383, 272 S.W. 694, 696. They are not apposite on the facts. In the Frailey case the position of the plaintiff was held not one of imminent peril under these facts: He rode on the ladder on the side of a boxcar for a distance of 16 miles without injury, and jumped off the train because his foot was crushed as he stepped between two of the cars. The plaintiff, 18 years of age, was not an infant. He demonstrated "his ability to pull himself higher on the ladder and step around the end of the car to a position between the moving cars." He was not injured by reason of maintaining a position on or between the cars. Plaintiff did not lose his self-control. Plaintiff testified that he did not jump off because of the brakeman's action in gesticulating towards plaintiff with his fist clenched and taking several steps in his direction. In the Stewart case the court carefully pointed out that "The only ground of recovery possible under the humanitarian doctrine was that the trainmen saw the imminent peril of the boys and were negligent in operating the train so as to injure them"; that the boys were not in danger by the movement of the train or from anything done by the defendant's employees; that plaintiff was injured solely through a voluntary act of his own, in jumping off the train when he arrived at his destination, and was not injured by the operation of the train; that "They were not thrown off by the motion of the train" and that there was no evidence that there was the slightest danger of being shaken off the train.

Under the cases cited we believe that this judgment should be affirmed.

There are considerations, however, which impel us to transfer this case to the Supreme Court for a re-examination of the law. While the Supreme Court has never specifically overruled this line of cases, it did refuse to follow them in Ridge v. Jones, supra, in a very closely analogous situation. In that case the court said, 71 S.W.2d loc. cit. 716: "It is not sufficient to make a case under this doctrine that a person was in a place or situation where he might possibly be injured if another should do a negligent act." And in Smith v. Siedhoff, supra, the Supreme Court, in referring to Took v. Wells, supra, said, 209 S.W.2d loc. cit. 237: "The Took case should be no longer followed."

Certainly the later cases, without exception, hold that the humanitarian doctrine cannot apply where the injury cannot be avoided after imminent peril arises. Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775; Pritt v. Terminal R. Ass'n of St. Louis, 359 Mo. 896, 224 S.W.2d 119; Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420; Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33; Smith v. Siedhoff, supra; Hendrick v. Kurn, 352 Mo. 848, 179 S.W.2d 717; Edwards v. Terminal R. Ass'n of St. Louis, 341 Mo. 235, 108 S.W.2d 140. It applies only when the negligence of the defendant is subsequent to and follows the arising of the situation of imminent peril.

In view of this uncertainty it is of vital concern to the bench and bar of this state that the law be settled and the question clarified whether the mutation of the humanitarian doctrine illustrated in the line of cases cited is or is not the law of Missouri.

The Commissioner therefore recommends that the judgment of the circuit court be affirmed, but that the cause be transferred to the Supreme Court for a re-examination of the law.

The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.

The judgment of the circuit court is, accordingly, affirmed but the cause is transferred to the Supreme Court for a re-examination of the law.

ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.

Summaries of

McClanahan v. St. Louis Public Service

St. Louis Court of Appeals, Missouri
Sep 11, 1951
242 S.W.2d 265 (Mo. Ct. App. 1951)
Case details for

McClanahan v. St. Louis Public Service

Case Details


Court:St. Louis Court of Appeals, Missouri

Date published: Sep 11, 1951


242 S.W.2d 265 (Mo. Ct. App. 1951)

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