Opinion
No. 28034.
April 17, 1951. Rehearing Denied May 18, 1951.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Leo Murphy, Jr., and Richard M. Stout, both of St. Louis, for appellant.
Carroll J. Donohue and Salkey Jones, all of St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff, Catherine Alwood, when the automobile in which she was riding with her husband, Thomas Alwood, ran into the side of a Florissant bus owned and operated by defendant, St. Louis Public Service Company.
The appeal is by plaintiff from the judgment rendered upon a defendant's verdict.
The case was pleaded and submitted upon the theory of defendant's negligence in operating its bus at a high, excessive, and dangerous rate of speed under the circumstances, and in failing to yield the right of way to the automobile in which plaintiff was riding.
Issue was joined by a general denial coupled with a plea of contributory negligence which was abandoned in the submission of the case to the jury.
The accident happened about 7:30 o'clock on the morning of December 27, 1948.
The scene of the accident was the intersection of Angelica and Twentieth Streets, in the City of St. Louis.
Throughout the evidence Angelica Street is described as running east and west, and Twentieth Street as running north and south. No precise measurements were offered, but each street was estimated as being in the neighborhood of 35 feet in width. Twentieth Street is level, but Angelica Street runs slightly downgrade for a short distance from the west before it reaches the intersection.
The bus was southbound on Twentieth Street, and the automobile eastbound on Angelica Street.
It was an admitted fact that the automobile ran head on into the side of the bus, but except for this the evidence contained widely varying accounts of the exact manner in which the collision occurred.
Angelica Street was icy, or at least slippery in spots, while Twentieth Street, which bore a heavier load of traffic, was described as being slushy.
Plaintiff's husband, Thomas Alwood, was driving the automobile, with plaintiff sitting in the seat beside him.
According to plaintiff's evidence, Alwood stopped his automobile some 3 feet back from the west curb line of Twentieth Street before attempting to enter the intersection. Neither he nor plaintiff saw the approaching bus, although he at least claimed to have looked in both directions while his car was at a standstill. He admitted that he never looked to his left again after starting up into the intersection. He moved forward in low gear, and was halfway across Twentieth Street when the bus suddenly appeared a foot or so directly in front of his automobile. At the very moment of the collision the automobile was more than halfway across the street, which was made possible by the fact that the bus had been swerved to its left and pulled over entirely to the east side of the street in an attempt to pass ahead of the automobile.
An eyewitness, one Scharff, thought that the bus had picked up speed after entering the intersection and was going some 20 or 25 miles an hour at the time of the accident. As Scharff had viewed the scene, the automobile was already in the intersection when the bus was still 15 feet back of the north curb line of Angelica Street. The automobile was moving at a speed of from 6 to 8 miles an hour at the moment of the impact, and struck the bus at a point 6 to 8 feet to the rear of the front door. The automobile had been traveling just to the right of the center line of Angelica Street. After the collision the automobile was brought to a stop headed south on Twentieth Street with its rear end just past the south curb line of Angelica Street. The bus was stopped at a point about half a block beyond the automobile.
Under defendant's version of the facts, the front of the bus had just reached the north curb line of Angelica Street and was preparing to enter the intersection when the driver, Baer, first saw the approaching automobile, which was then 300 feet away. Baer estimated that the bus was moving about 3 to 5 miles an hour, and the automobile about 30 miles an hour. As to the relative speeds of the two vehicles, Baer was substantially corroborated by two of his passengers, and in large measure by a third. All the passenger witnesses agreed that when the bus was well into the intersection, the automobile was still west of Twentieth Street at a distance variously estimated as having been from 15 to 125 feet.
There was heavy traffic on Twentieth Street at the early hour of the morning, but no appreciable traffic on Angelica Street. Because of the congestion on Twentieth Street the bus was necessarily moving slowly. Baer testified, however, that as soon as he observed that there was no abating of the automobile's speed, he accelerated the speed of the bus and changed his course over some what to the left in an attempt to avoid a collision with the automobile. Defendant's witnesses were in accord that the automobile's speed was not substantially reduced before the collision, and that it was not brought to a stop on reaching the intersection.
By the time of the impact the speed of the bus had been increased to 10 or 12 miles an hour, while the automobile was moving about 25 miles an hour. When the impact occurred the left wheels of the bus were slightly over the center line of Twentieth Street, with the front of the bus practically on the south curb line of Angelica Street. The bus continued in motion for some 3 or 4 feet after the collision, and was then stopped until it could be moved farther down the street to a point where it would not obstruct the movement of traffic. The automobile was stopped facing east just beyond the south curb line of Angelica Street.
The only question on the appeal is whether the court committed error in giving instruction No. 5 at the instance and request of defendant. The instruction reads as follows: "The court instructs the jury that the driver of the automobile mentioned in evidence, was, under the law, bound to exercise the highest degree of care in the operation of the automobile at the time and place in question, that is, such care as a very careful and prudent person would exercise under the same or similar circumstances. In this connection you are further instructed that if you find and believe from evidence that, under all the circumstances shown in evidence, the driver of said automobile drove said automobile eastwardly on Angelica Avenue into the intersection of that avenue and Twentieth Street, and if you further find and believe that in so driving, the driver of the automobile drove said automobile into the side of a southbound bus then and there operating southwardly on Twentieth Street when the driver of the automobile saw, or could have seen, in the exercise of the highest degree of care, that there was danger of collision between the two vehicles, if you so find, and could have avoided such collision by stopping, slowing, slackening or swerving his automobile but failed to do so; and if you further find in so doing the driver of said automobile failed to exercise the highest degree of care, and that such failure, if you so find, was the sole cause of the collision and whatever damages, if any, plaintiff sustained on the occasion in question, and that such alleged damages, if any, were not due to any negligence on the part of the operator of the bus in any of the other instructions set out herein, then, in that event, plaintiff is not entitled to recover and your verdict must be in favor of the defendant."
Proceeding on the theory that the instruction submitted the humanitarian negligence of her husband as the sole cause of the accident, plaintiff complains that there was no showing in the evidence of the distance within which her husband could have stopped his automobile; that as a matter of fact, the admitted presence of ice on the street disclosed that stopping, slackening or swerving of the automobile would have been impossible; and that aside from any question of the sufficiency of the evidence to support the giving of the instruction, it was erroneous as to form in imposing a duty on her husband to act to avoid a collision without requiring a finding as to when the danger of collision arose.
In this state the humanitarian doctrine is not regarded either as a mere rule of proximate cause or as an exception to the law of contributory negligence, but instead it has been accorded an independent status as a principle of law which is founded upon the precepts of humanity and natural justice to the end that every one shall be required to exercise due care to avoid injuring another, if he may do so without endangering himself or others. regardless of how such other person's perilous situation may have arisen. Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482. In view of its concept it is therefore a doctrine to be relied on as a basis for recovery by the injured person, and not as a defense on the part of the one who is being charged with having neglected his ultimate opportunity to have prevented the casualty that occurred.
The fact is that defendant disclaims any intention to have submitted negligence under the humanitarian doctrine by instruction No. 5, but asserts, as is obviously true, that the instruction was a sole cause instruction designed to submit the question of whether Alwood's negligence in any one or more of several specified particulars had been solely responsible for the collision and resulting injury to his wife, and including, as it was essential that the instruction do, the requirement for a finding that the collision had not been attributable to any negligence on the part of Baer, the operator of the bus, as hypothesized in any of the other instructions. That the instruction was similar in much of its phraseology to an instruction based upon the humanitarian doctrine in nowise militates against its propriety. If Alwood, although he saw or could have seen that there was danger of collision with the bus, nevertheless drove his automobile into the side of the bus when he could have avoided the collision by stopping, slowing, or swerving his automobile, he was guilty of negligence by whatever name it might be called. Green v. Terminal R. Ass'n of St. Louis, Mo.App., 135 S.W.2d 652, 660. Defendant had the right to predicate the instruction upon the facts as developed by its own evidence, Bashkow v. McBride, Mo.App., 177 S.W.2d 637; and a finding that those facts were true would necessarily absolve defendant from all liability.
Whether there was evidence to support the instruction is therefore the important question, to determine which we must view the evidence most favorably to defendant, the party offering the instruction. Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Bashkow v. Mc Bride, supra. Plaintiff is right, however, in insisting upon the qualification that before the instruction may be upheld, there must have been evidence to warrant the submission of each and every one of the particulars in which the jury were authorized to find that Alwood might have prevented his automobile from striking the bus. This for the reason that the instruction was drawn in the disjunctive as respects the question of whether Alwood might have avoided the collision by stopping, slackening, or swerving his automobile. With the instruction so drawn, it was enough that the jury might have found Alwood guilty of negligence in any one, or at least in less than all, of the particulars hypothesized; and if any one of the particulars was without a basis in the evidence, there would be no way of determining from the verdict returned that it was not upon such unsupported theory that the jury had undertaken to make their finding. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Harrell v. Berberich, 359 Mo. 551, 222 S.W.2d 733; Whitehead v. Fogelman, Mo.App., 44 S.W.2d 261.
As we have already pointed out, the specific complaint is that there was no evidence to support the submission of Alwood's ability to have stopped his automobile short of a collision with the bus. Not only this, but plaintiff insists that the evidence of ice and slush on the street disclosed affirmatively that either stopping, slackening, or swerving would have been impossible.
It was not a fatal objection that no witness testified to the precise distance within which the automobile could have been stopped since the court was none the less entitled to set reasonable limits. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9; Neill v. Alton R. Co., Mo.App., 113 S.W.2d 1073.
Considering the case in the light of the testimony of Baer, the operator of the bus, we have a situation where the automobile was 300 feet away when the front of the bus was even with the north curb line of Angelica Street, and still 200 feet away when the bus had actually entered the intersection for some 4 or 5 feet. At a speed of 30 miles an hour it would be a matter of common knowledge that the automobile could have been stopped within the space available, unless the condition of the street was such as to have put the automobile beyond all control. However the evidence was not such as to require any such conclusion. Certainly plaintiff's evidence was not to any such effect; and the only basis for such a contention is to be derived from certain of defendant's evidence that the automobile was observed to be wobbling from side to side and skidding. But this apparently did not occur until the bus was well within the intersection, and long after its movements should have indicated to Alwood that it was to be driven on across. The jury had sufficient basis for finding that the collision could have been avoided if Alwood had taken proper steps to control his automobile when it should have been obvious that the bus was to be driven across the street in front of him; and so far as concerns the question of his ability to stop, it seems most inconsistent for plaintiff to insist upon the lack of evidence to show the possibility of something that she herself testified had occurred.
Neither is the instruction subject to criticism upon the ground that it failed to require a finding as to when the danger of collision arose so as to have imposed a duty on Alwood to take steps to prevent it. A reading of the instruction discloses that after hypothesizing the courses and movements of the automobile and bus in their respective approaches to the intersection, it specifically required a finding that Alwood saw or could have seen that there was danger of collision between the two vehicles. It was for the jury to say from all the circumstances in evidence when it was that the danger of collision arose; and the instruction could have properly done no more than direct their attention to the necessity for such a finding.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.