Opinion
No. 28120.
July 3, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, DAVID A. McMULLAN, J.
George T. Williams, St. Louis, for appellant.
Garnet W. Taylor, St. Louis, for respondent.
This is an action for damage to plaintiff's automobile in the amount of $104.24.
The damage was sustained when plaintiff's automobile was struck by an automobile driven by defendant at the intersection of Hampton Avenue and Chippewa Street, in the City of St. Louis, on September 24, 1945.
Originating in the magistrate court, the case went on appeal to the circuit court, wherein, upon a trial to a jury, a verdict was returned in favor of defendant. Judgment was rendered in accordance with the verdict; and following an unavailing motion for a new trial, plaintiff gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
Plaintiff's car was being driven at the time of the accident by his son, David H. Rhees, who was then 21 years of age, and was home on a furlough from the army. The defendant, B. J. Koehler, a minister of the gospel, was at the wheel of his automobile, and was on his way to his home in Belleville, Illinois, at the conclusion of a convocation which he had attended at Eden Seminary in Webster Groves.
The petition was limited to the mere general charge that defendant had so carelessly driven, controlled, and managed his automobile as to cause the front of it to come in contact with the right side of plaintiff's automobile.
Defendant's answer was a general denial of the negligence charged against him, coupled with a counterclaim which he subsequently dismissed upon his admitted inability to show that David H. Rhees was occupying a relationship of agency for his father at the time of the accident.
Hampton Avenue runs north and south, and Chippewa Street east and west. Both are paved streets much used by traffic. Hampton Avenue is about 40 feet in width, with four traffic lanes, two in either direction, while Chippewa Street is about 60 feet in width, with six traffic lanes, three in either direction.
At the time of the collision young Rhees was driving southwardly on Hampton Avenue, and defendant eastwardly on Chippewa Street.
The only eyewitnesses to testify in the case were the two participants themselves.
The accident happened shortly after eight o'clock in the evening, and the headlights of both automobiles were burning.
According to the testimony of young Rhees, he was driving in the inner south-bound lane of Hampton Avenue, with the right side of his automobile about 15 feet from the west curb. He stopped on the north line of Chippewa Street in obedience to the stop sign located at that point, and waited for an approaching northbound automobile to make a left turn into Chippewa Street. While he was stopped at the stop sign he first saw the lights of defendant's automobile, which was then about 50 feet back of the intersection. He had no idea of defendant's speed, and saw no other automobiles traveling east on Chippewa Street or to his right on Hampton Avenue.
After the unidentified automobile had completed its left turn off of Hampton Avenue, he started forward in low gear and had reached the south line of Chippewa Street with the front of his automobile when he again observed defendant's car then only 10 or 15 feet away. In the short time and space available he was unable to get out of the path of defendant's automobile, which struck the right side of his own car and produced the damage for which plaintiff seeks to recover in this proceeding. He was still in low gear and was traveling no more than 5 to 10 miles an hour at the time of the collision. Both cars came to a stop with the force of the impact, and young Rhees then moved over to the west curb of Hampton Avenue and came to a stop with the rear end of his automobile some 10 or 15 feet beyond the south line of Chippewa Street.
Under defendant's version of the facts, he was driving in the middle lane of the three eastbound traffic lanes on Chippewa Street as he approached Hampton Avenue. There was apparently no car to his right, but he did recall a car driven by an unidentified woman in the inner lane immediately to his left. Both he and the woman stopped their cars at the south line of Hampton Avenue, and then both started across the intersection, with her car some 3 feet ahead of his. He had driven into the intersection about the length of his car when he heard the brakes squeak on the woman's car, and then for the first time saw young Rhees, who was driving southwardly on Hampton Avenue just to the right of the center line. He applied his brakes but was unable to avoid colliding with Rhees' car, and struck it with the front end of his own car as already indicated. He estimated Rhees' speed at 30 miles an hour or better, and testified that Rhees' car traveled 40 or 50 feet after the impact before it was brought to a stop south of Chippewa Street.
Defendant testified further that when he stopped before entering the intersection, he looked to his left and saw no automobile coming southwardly on Hampton Avenue. He was able to look through the car on his left, and could see up Hampton Avenue "far enough that it looked clear". At that time, so far as he was able to observe, Rhees "was not in the area anywhere".
As finally preserved in his printed argument, plaintiff brings forward two complaints, the one in regard to the refusal of his own instruction A, and the other in regard to the giving of defendant's instruction No. 2.
Defendant suggests that the question of the refusal of instruction A is not before us for consideration because of the lack of an objection on the part of plaintiff's counsel. The code provides that for an adverse ruling to be preserved for appellate review, "it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor". R.S.Mo. 1949, § 510.210. In this particular instance plaintiff plainly made known the action which he desired the court to take, which was that it give his requested instruction A; and when the court refused to do so, its action in refusing the instruction is properly here for our review.
Instruction A was designed to submit the question of plaintiff's right to recover under the humanitarian doctrine.
The instruction was drawn upon the hypothesis that defendant had actually seen young Rhees in a position of imminent peril, and then predicated liability upon either of three alternative propositions — that defendant might either have stopped, slackened the speed of, or swerved his automobile so as to have avoided the collision.
The evidence was wholly insufficient to have supported the giving of such instruction. There was no evidence whatever that defendant had actually seen plaintiff's automobile before it cleared the car of the woman who was driving to defendant's immediate left. Furthermore there was no evidence as to the time and distance that would have been required for defendant to have stopped, slackened the speed of, or swerved his car after any necessity to do so might have arisen. For the lack of evidence upon the constitutive elements of the humanitarian doctrine, instruction A was properly refused. Pudiwitr v. Soloman, Mo.App., 224 S.W.2d 562.
Defendant's instruction No. 2 was a sole cause instruction telling the jury that if they found that young Rhees had failed to keep a reasonably safe lookout or to keep his automobile under control, or that he had driven the same at a high and excessive rate of speed under the circumstances; that any of such acts of his was the sole cause of the collision; and that defendant was not guilty of negligence as submitted in the other instructions, then their verdict should be for defendant.
It is contended that there was no evidence to support the several hypotheses of negligence on the part of young Rhees, and particularly the hypothesis that he had failed to have his automobile under control. It does appear that the evidence was at least insufficient to warrant the inclusion of the element of control. It will be observed, however, that the instruction not only required a finding that young Rhees had been guilty of negligence in some one or more of the specified particulars, but that it also required the additional conjunctive finding that defendant had not been guilty of negligence as submitted in any of the other instructions. Since the jury would necessarily have found that defendant had not been guilty of any negligence, then, as the lower court pointed out, he could not have been held liable in any event, so that it was of no material consequence what the jury may have purported to find in the way of negligence on the part of young Rhees. Under such circumstances the fault of which plaintiff complains could have amounted to no more than harmless error.
It follows that the judgment of the circuit court should be affirmed, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.