*1 Laura Blunk, Appellant, J. Sam H. Snider. 163. Two, December 1937. Neel,
Cooper, Kemp & appellant. Sutherland for *2 respondent. Sprinkle & Knowles for Sprinkle Paul C.
WESTHUES, C. Laura J. Blunk, appellant, the filed suit the Circuit County, against Court of Jackson the respondent, to recover $20,000 damages injuries in. personal by for sustained April her on 8, 1933, by respondent’s she was struck A car. trial resulted in a verdict the plaintiff defendant appealed. and The collision occurred near south the line of the intersection of Thirty-first and Main streets in Kansas City, Missouri. de- driving fendant was his Street, plaintiff car north Main on and walking was across this street from plaintiff east to west. When reached the by northbound car tracks she was struck the car and sustained, among leg other injuries, a broken wrist. and
Te was primary negligence case submitted to the on and also the humanitarian doctrine. Plaintiff evidence introduced lights, that the stop, collision, against red the of at time the were north and traffic. southbound The defendant substan introduced tial contrary, is, lights evidence to the against that the red were east and pri westbound traffic. This submissible made a case on mary negligence. theory plaintiff On the humanitarian of case the hurrying introduced was evidence that she across the street look ing west; that when point she reached a near the center car; by car tracks she northbound was struck the defendant’s injury. defendant the could have seen her in time have averted beyond doubt, driv showed, The evidence the was per ing miles speed his car at a than twelve or fifteen of more hour, stopped distance about and that it within a of could have been ten feet within stop ten or fifteen feet. his car The defendant did approached as he less after the Defendant testified that collision. about the people intersection he number of noticed a safety people, who zone; some of the he his horn and sounded street, Defendant further attempting stopped. were cross the plaintiff , he not see until he within was a few feet of stated safety her; was of zone that she north and north of the other driving right Defendant was north people. with of his wheels rails car between the northbound street car track. It theory suddenly plaintiff stepped into the path defendant’s impossible for him plaintiff his ear and to have discovered peril position striking in time to have averted her. The facts, only questions sufficient statement of the since the above pertain given to the correctness of two briefed instructions at de- admissibility request fendant’s certain evidence and the —the jurors. qualification of one of the asserts in brief that the Appellant giving, her court erred in request, (G). Instruction This instruction in at defendant’s sub see, by stance informed that if defendant highest degree seen plain exercise of of care could have not, safety tiff, others, himself and stopped and could with car, given warning thereby his or swerved avoided the col charged lision, then the defendant not be with un could Appellant doctrine. brief asserts that der humanitarian hypothesized separate facts, con the instruction two and distinct conjunction “and,”' nected neither which facts was supported by Appellant that the instruc evidence. also asserts rule, misstatement the converse of the humanitarian tion was a confusing roving mis commission and was leading. Plaintiff’s instruction a verdict authorized care, highest saw, degree or, if the exercise of the coming peril, posi in a position could have seen into highest degree peril, thereafter, by the exercise of the tion time *4 striking care, safety himself, plaintiff of with to have avoided sounding evi by stopping swerving car, his horn. It is the (G) plaintiff’s instruc that the converse of dent Instruction was phrase “in time tion, that the did not use the except instruction used, an instruc not be phrase ’While that exact need thereafter. that ele as exclude of not so worded tion this nature should be peril the arose very in this case as to when ment. It material was doctrine, should defendant, under the humanitarian when the discovered the defendant could peril. the If have discovered injury, with in averted the peril time thereafter to have plaintiff so. others, was bound to do safety then the defendant to himself and plain he saw admitted asserts that the defendant Appellant further car; there was no that his feet from was about five tiff she De time. long that before have seen he could not evidence that his a feet from was few plaintiff when she say he fendant saw it too then to that was late reasonably inferred car, but it be could that a Defendant stated collision. stop the in time avert the ear street' car -upon the track so southbound that he not could swerve was, therefore, a.question to the west. It jury for the to decide. "quite Defendant safety that there was people” testified a crowd of in the plaintiff zone and that struck north of the We zone.. need not justify decide whether this was sufficient evidence to in- an ference cpuld not have seen defendant time to have injury. proof upon plaintiff avoided the of burden af- firmatively saw, show that the plain- could have seen A jury tiff. could have this issue for found the defendant because lack evidence, of a of plaintiff’s because the not believe evidence. complained
Appellant (D), Instruction which reads as follows: charge by plaintiff against
"The the neg- laid is one ligence. Negligence wrong, is positive a and therefore this ease is presumed. recovery may In words, other a be had on a charge negligence charge pre- when such is sustained the greater weight ponderance; is, the of the credible evidence to charge the is reasonable satisfaction the true as laid, upon disprove and it not devolve the defendant does the charge, respect but, rather, the the burden it proof law casts upon plaintiff, charge negligence the such be sustained must is, greater weight preponderance; credible If, jury, as evidence to the satisfaction of the above stated. there- charge you negligence against fore, touching evidence find the evenly balanced, fairly considering after the defendant to be your evidence, must verdict be for defendant.”' Appellant upon plaintiff a contends that this instruction casts requires To this we a ease. burden than law civil is new agree, and is a trial. The entitled to upon premise. false At outset written, well it is based a by plaintiff’s charged, stands the defendant informs the wrong. Neg- positive is negligence; petition, with act, wrongful positive wrong is a wrong. is A ligence positive fail- willfully Negligence in a case of this nature committed. care, act inattention highest degree of mere ure to exercise wrong positive there must In order to commit or inadvertence. 45 Corpus negligence. element of Intent an an intent. following: Juris, we find section contrary, the negligence, but on element of "Intent is not an injury complaint made of which intent to inflict the of an absence *5 torts, negligence other distinguishes element which is an .from that exists, whether inten- injury inflict the where an intention wrongful negligent act is not only, constructive tion be actual or fraud.” aggression or is one of violence 31 Again, Corpus in 45 Juris, 672, the following appears: “Accurately speaking, ‘negligence’ the terms ‘willfulness’' are and incompatible, signify opposites other, and of each in that absence of intent a distinguishing negligence characteristic of whereas will- fulness cannot purpose design, exist without and a in- willful jury will not be may reasonably inferred the result attrib- negligence uted to phrase negligence’ inattention. The ‘willful is a terms, say contradiction in injury an from resulted same, negligent and willful conduct another is to affirm that the act is opposite the result of two conditions, mental heedlessness and design.” purpose or Thayer & (N. 691, v. Denver 154 M.), R. G. Railroad Co. Pac. negligence, slight, ordinary, gross, court held whether negligence negative nature, still implying and its the omission duty excluding and many the idea of willfulness. Cases from
jurisdictions were there in support discussed and cited hold of that ing. The Appeals, Federal Circuit Court Circuit, Seventh Cleveland, Ry. &C., Tartt, St. L. Co. 12 C. 64 618, v. C. A. Fed. 826, say: l. c. 823, following had the
“Negligence
negative
nature,
implying
in its
the omission of
duty,
and excludes
idea of willfulness. Willful or intentional
injury
positive
agressive conduct,
implies
and
neg
the mere
ligent
duty.
charge
negligence
not,
omission of
ex
The
does
vi
termini, import any
implied
actual or
intention to
harm.
do
[Railroad
86
Huffman,
Co. v.
28
95
2
287;
Ind.
Co.
Ind.
Graham,
Railroad
v.
134;
2
Co.,
Ivens
103
Railway
Railway
v.
Ind.
N. E.
27,
Co. v.
73,
injury
106
5 N.
Schmidt,
say
Ind.
E.
that an
‘To
resulted
684.]
negligent
from the
and willful conduct of another is
affirm that
exactly opposite
the same act is the
two
mental conditions.
result of
through
It is
affirm in
one breath that an act was done
inatten
tion, thoughtlessly, heedlessly,
purposely
at the same time
by design.’
51,
807;
[Railway
Bryan, 107 Ind.
7 N. E.
Co. v.
Neg.
68;
112
Beach,
Co.,
250,
Ind.
67,
Contrib.
Palmer v. Railroad
(Italics ours.)
We in Nelson ruled (5), negligence ordinarily positive wrong. 695 c. was not informing consideration, after thus under negligence negligence charged with wrong, an intentional continues wrong, which positive means charge when such can recover telling greater is the preponderance, proven has been jury. reasonable satisfaction of weight evidence to the upon plaintiff burden than certainly casts The instruction negligence. on One this based required in an action Mo. Co., Const. Gamble in Rouchene v. court
32 in (11) (12), plaintiff’s 63 instruction which
58, l. condemned a c. a verdict if “the evi plaintiff was entitled to formed the favor, although in preponderates plaintiff’s in dence this case slightly.’’’ said: The court there many too tech- proof not state
“Instructions on burden should degrees g'o prepon- is to into and, attempt if an made nical rules get the matter com- evidence, is certain to so almost derance is laymen will have no idea at all as what plicated jury of that a ’’ meant. containing plain a also that an instruction The there advised court ought proof all that as to the burden declaration in case was erroneous then If the above given. the instruction been in defense of the instruction argument logical can be advanced no discussing instructions on bur Authorities under consideration. following' cases: from recent may gathered proof be den (2d) 58, 89 l. W. 123, 338 Mo. S. Co., Gamble Const. Rouchene v. Co., (2d) 98 S. W. (11) (12); Timper 63 v. Mo. Pac. Railroad c. Louis, Assn., of St. (1, 2); Aly 549 Terminal Railroad 548, l. c. 93 851; Evans, 991, 338 Mo. Nelson v. 340, (2d) 78 336 S. W. Mo. & 694, 695; Tierman Coal Material (2d) 691, Koebel v. S. W. l. c. Doherty (2); 519, 523 v. St. (2d) l. c. S. Co., 561, 337 Mo. 742, (2). 744 98 c. 339 l. Co., Mo. W. Butter Louis following: Corpus Juris, 721, section we note In 64 ‘‘ require charging case not in civil should The court evidence, ordinary preponderance degree proof than impress is on the any civil case which calculated to necessary of the evidence preponderance than a that more is erroneous.” establish a fact subject may cases in this also read the cited Those interested Juris, 12, 23 Corpus section ruling the trial complains court
Appellant next pay hospi permitting her show that the defendant not injuries. by reason of her Plaintiff bills incurred tal doctor any expenses, therefore was such to recover not sue paid. However, prove the amount due entitled to permitted show that the de been she should have contends that because the evidence of defend pay these bills fendant did not This pay the defendant did them. to believe ant led reading entirely groundless. appellant contention of doctor, defendant, opinion that the obtained of the we were record plaintiff, and that this care for doc a fellow doctor to the services of gratis performed services either tor arises, trial, if a like situation On another paid the defendant. permitted to show that justice plaintiff should pay these bills. The amount of these obligated himself to had not amends petition immaterial unless and seeks a bills controversy qualification recovery therefor. The over the plaintiff a new since we have awarded juror not be considered need trial. Cooley judgment is reversed and caused remanded.
Bohling, GC., concur. a- foregoing opinion C., is Westhues,
PER CURIAM. The judges All opinion of the court. concur. dopted as the County, Appellant. Whalen Buchanan William C. (2d)W. 177. Two, December