*1 The compensation expenses motion to the trustee and incurred. mo- Company also filed a Defendant Trust as executor
overruled. delivery to it modify requesting property payment tion of tbe for This against expenses. costs motion of claims estate and In view Only Company appealed. trustee Trust as overruled. refus- did not err in case, of the in this hold the court record we attorneys’ from ing fees, fees, expenses other trustee’s deduct said fund. appeal to the
The decree is as issues involved affirmed 35,769 as to No. 35,770 and reversed remanded cause cause No. .and conveyance and direct to declare the trust void toto with directions delivery remaining property, one-half after the of one-half to be to the executors under the will of respondent, delivered any Merz, deceased, direct that in future settlement' Julius M. Company Tower Bank & respondent between and the Grove Trust Merz, Merz, as under of Julius M. Adolph executors the will by. charged be amount deceased, she shall with the total recovered determining shall 35,770, No. have received her in cause she when deceased, personal subject real estate of said one-half of the opinion. proceedings further inconsistent with this debts; and for Bradley, GG., Hyde and concur. foregoing opinion by Dalton, C., adopted
PER is CURIAM:—The concur, Says, judges except All the opinion court. J.,P. absent. Abernathy
Hugh Company. Appellant, Branson, Furniture (2d)W. 562. 130 S. July One,
Division 1939.
McVey Randolph & appellant. for *4 Rogers <& and Frank J. for
Cooper, respondent. Neel Sutherland counts, $25,000 dam- one for HYDE, is an action two C. This statutory injuries, other for ages and the personal for damages case was submitted wife. The for death for defend- negligence. The found solely upon humanitarian appealed. has ant and for de- giving instructions assigns certain
Plaintiff error immaterial it is what However, contends defendant fendant. *5 a case to make given failed because plaintiff instructions were therefore, the facts will, first state We humanitarian rule. under the favorably plaintiff. to most view tended to show the evidence The driver. eyewitnesses plaintiff and defendant’s only were The Livingston County. Plaintiff Highway collision on 36' in occurred east, going driving rainy weather, on an S curve downhill. reaching straight part As he rounded the last before the curve road, traveling thirty-five forty per hour, the from to miles the (con- edge pavement front wheel of his car off the south the went wide) muddy the About time his crete slab 18 feet onto shoulder. the off, thirty-five to (coming wheel went he saw defendant’s car west at forty road) “thought per hour on north and at miles the side of the away. Later, that time it was about 200 feet” after he had visited stepped the accident and the scene of off distances with reference to away landmarks, he decided it than He that was farther that. light with There position poles. fixed its. reference to electric running gravel pavement road just was a south from the east point collision based his estimates from part curve, the distance where his wheel went pavement, road, road, off the the width this light beyond. approach to the pole (Its distance flared out to pavement.) 81 feet it reached the said where He that defendant’s gravel car had not reached the road first when he saw it. His wheel eight feet,” “probably was off slab for or ten he “turned it sharply back on the slab . . . cut it rather . . . overcom- ing only muddy pull (of on the wheel shoulder which was pavement) two lower than the inches but also the curve.” Plaintiff’s up began skidding.” car “as it on the it previ- came slab He had ously deposition) his (in estimated that defendant’s car from away 200 feet his when car first back came on the but at slab trial, on his to the visit scene based measurements then made, he it estimated to be feet. He that said defendant’s car never or speed; swerved its driver, slackened defendant’s hospital, later at conversation said he saw ear come “just back on the slab begins straighten about where the curve up;” and that “he car said his was about 200 feet east.” Plaintiff why him said, said: “I asked didn’t stop he and he ‘well didn’t he ” why.’ know Plaintiff .straighten also that he tried “to get car out it out putting of the skid” his “foot on the brake releasing and then it so it so it wouldn’t skid and roll- would start ing;” he skidded, coming estimated distance it after back sixty pavement seventy feet;” on the to be or “about that the closest edge his left front wheel came to the north of the slab was “two or feet;” three he had his car slowed down “ten or miles fifteen an that it four hour” so rolled on the for “ten wheels or twelve feet” collision; sixty eighty before the that defendant’s car “was feet skid; down the road when car” came out of the and that facing of the collision his northeast, the time “car was more east at than north, turning but wheels still right, little bit to the pulling lane;” . . around to come into the other that “it but got traveling it never to where was south.”
1177 witnesses, ar- who two corroborated Plaintiff’s estimates were they accident, testified and who the on tbe scene after rived They said there was both pavement. marks on the examined wheel shoulder, of the west zigzag track from the south mnddy broken one north) point to a than angling (more east gravel road, northeast They pavement. the esti- of the line of north center about two feet eight ten feet was from the mark on the south shoulder mated that from the shoul- muddy mark went place the wheel long; that the where seventy-five eighty feet west pavement from on to the was der length of collision; that total after the the the ears were found where it sixty seventy-five feet; and that had muddy from track was this plat men made a skidding of these appearance of a wheel. One the muddy According plat, to his this track track. of the course show seventy line about feet northeast) the black center (angling crossed straightened edge slab, out it came over south from where eight feet, and then directly east) for about (going somewhat more twenty feet plaintiff’s car about He that he found disappeared. disappeared) on south the track (of point where farther east the road on north side of Defendant’s car was the road. side of plaintiff’s farther west than car. in the ditch somewhat showing the condition of two record pictures There are them, charge garage man, took The who after the collision. cars damaged corresponds what they (which with stated how show), as follows: pictures on damaged the hood connects coupe where
“The was I think the damaged in front. don’t body. car was The on it. The it smashed a fender hurt, except where was radiator damaged in the left Plymouth The coach was bumper not bent. was on right . The front axle and wheel side. . . part and front or turned fender and kind of tilted bent under the Branson’s car was like it hit. The bent, up turned there was front axle was back. The up of the Bran- of rode over hood of the Keene car kind front end son ear.” Highway patrolman also said:
A State damaged from the coupe on the side Plymouth “The just (plaintiff) me that . . . He told to the door. front end back seeing just he a recollection of the ear of the crash had at the time . being of control. . remembered his car out hit. also as it He car) badly in.” (plaintiff’s crushed coupe right door on The deposition (offered plaintiff) said in his driver Defendant’s speed existing and at the under the conditions stopped, have he could safety to himself 100 with reasonable “in around feet going, he signed statement, emergency.” He in an written the car attorney collision, about a week after the by prepared follows: read as ‘‘ hour in about the center of north to 50 miles an going I was coming
half I of the 18 foot slab. another me on the saw car toward speed. south side of the road at about the When it was about same (one fifty) away fight hundred feet his whéels ran off onto momentarily immediately pulled south shoulder and the driver the car sharply on to the slab and cut to the north back across side of the I happened quick put my slab. It so hot turn or did brakes. The *7 my right front end car struck the front end Of the other car which occupied by (At signing was Mr. and Mrs. Branson.” the time-of assisted, making showing statement, plat he also a this distance n feet.) as 150 argues mainly Defendant the upon demurrer to the evidence ground plaintiff’s testimony contrary the was unbelievable and physical (As by facts. shown the condition of the cars after the collision.) afe say positively unable to We that the cars not could dámaged way have they been the happened the collision by manner plaintiff, the stated by which was corroborated witnesses who examined requires very the wheel track. It a clear ease positive to hold that testimony corroborated is untrue because of impossibility. Co., v. M. & 1201, O. Railroad 334 Mo. 70 [Parrent (2d) 1068; W. S. Bloecher v. Duerbeck, 535, 338 Mo. 92 (2d) S. W. Considering plaintiff, distances stated and the witnesses 681.] corroborating him, facts, to be the jury think there we was a case on ability stop defendant’s driver to his point car short of the collision, sufficiently or to speed, slacken its in time so that (if regaining control) he could have turned back into the south lane. While time for (even plaintiff’s theory), action was short plaintiff’s we find that evidence was sufficient to show a situation appearances where the reasonable were that his car was out of con- trol, immediately after his wheel came began back on the slab and skidding the north side of the It road. was defendant’s toward duty upon driver’s to act appearances reasonable at and a time when action would be effective if. he had time thereafter do so. [Allen (Mo.), (2d) 630; Kessler 64 S. W. Ry. Womack v. Missouri Pacific 88 W. (2d) 368; Perkins v. Term. Railroad Assn., 340 Mo. (2d) If his had not reached car 915.] gravel road when road, car came back on the think we reasonably could infer that he did stop, have time to or suffi- ciently speed slacken the of his car so that could have avoided it. We hold that the properly court overruled defendant’s demurrer to the evidence. considering instructions,
Before we will state the facts as shown defendant’s evidence. Defendant’s driver denied the con place versation which took at hospital. He said that (stated the distance of feet between two cars in his written statement) suggested argued by plaintiff’s and him attorney accepted time, that he it at that signed and statement without changing thought it. He he the distance was testified at the trial that less pavement, than that run but when he saw car off the give happened said he it it could not an accurate estimate of because suddenly. concerning occurrence, so fol- further, He testified as lows:
“As pavement we drew nearer this off onto the shoul- car ran moment, just ways off, der. Then it was off just ran a little attempting get then in back on he flashed across front just of me I we drew abreast and was almost abreast of him when anything.
he shot there. across . ". .1 didn’t do much of It was quick. taking my gas so I remember foot off the and then the first thing my steering I knew head hit the and tbM all. . . . wheel skidding motion, His sideways, just was a or forward and it up (illustrating) just loomed like that I stiffened. ... A careening good lurch or . would word. . As to whether be turning, turning sliding four both, wheels were it was coming up, rushing up too fast for me to tell. ... It blurred (illustrating) eye faster than the like could focus. Of course it go right angles go straight. didn't at he didn’t ... At the *8 impact little, moment I probably up appreciably, of slowed not my gas, practically took foot off the but after all it speed. was the same Q. . . position something . Just the of the what was ears when develop exactly. unusual did to Mr. Branson’s car ? A. I don’t know guessed Q. I think I it point long, once at feet. In of time how elapsed much time the how between time that Mr. Branson’s ear went you impact, give off the shoulder until time of the can us the some guess that? A. I part idea of Just about a second or of a second. get long enough Q. for him to the Just across road. There was noth- ing appearance you in the his unusual of car when first it ? A. saw No, sir.” by also had of admissions plaintiff (to Defendant evidence made (cid:127) hospital),
nurses at the as follows: raining “He me it told ... and slick Mrs. Barnes: got side, you know, he and his car skidded and off on the other get of his he tried to back and lost control car and that was about all any he he knew. . . . He told didn’t see car.” me Egbert: car, “He told me . . . he lost control of the Miss righting going onto the shoulder and the ear went direct- over he . he ly the road. . . He said didn’t other ear across see the any . . time.” at by saying groggy, explained that he “was dazed and Plaintiff days” after the very for several collision. confused giving assigns as error the of defendant’s Instructions D. Plaintiff were, K, as follows: F. G. charge by the that the plain- instructs laid the
“D. The court negligence. Recovery in this is of case one against defendant tiff charge such except charge.of negligence when may not had on a be weight of is, greater that preponderance, is. sustained jury. of satisfaction reasonable credible evidence charge, disprove said upon the defendant “It does not devolve to said in reference proof of the burden law casts but rather the sus- must be negligence charge of charge upon plaintiff and said credible weight of the greater is, the preponderance, that tained therefore, If, jury. of the to the reasonable satisfaction evidence against the negligence charge you touching the of the evidence find preponderate not does ‘as submitted these defendant instructions’ event, balanced, then, in either evenly plaintiff, or is in favor of the your against' the defendant not to recover is entitled the defendant. verdict must favor of be Keene, had driver, Mr. jury that the instructs the “F. The court on his automobile drive right assume that the would suddenly highway and would (plaintiff’s) his side the center line said to the left of cause said automobile to be driven automobile, closely approaching highway in front of defendant’s instructs, you driven;’ the court further that it ‘so if find or duty Keene to slow down you that no on defendant there was him, in apparent his automobile until it became stop swerve degree care, automobile highest the exercise pathway of defendant’s being to the left and into the driven you you if further instructs automobile, so; and the court the center to the left of automobile was driven find of de- highway pathway and into and to the north side closely automobile in front of defendant’s fendant’s automobile so highest not, by the exercise of Keene could that the defendant you 1,’ have in Instruction Number degree care, ‘as submitted to to re- striking automobile, then is not entitled avoided your must be for defendant both counts. cover and verdict By peril,’ imminent as used instructions ‘position of “Gr. *9 place just is a court, not meant a wherein there mere bare of is occurring; place position injury an it means and of possibility danger. is certain wherein there you jury that if find and believe from court instructs the
“K. The evidence, plaintiff in so that on the occasion mentioned the evidence suddenly go posi- same to from a operated his automobile as to cause safety highway to the of on his side of the left said tion of closely automobile; Keene’s highway in front of defendant and and from the you find and the acts of if further believe evidence find, you the sole cause of doing, if so were whatever plaintiff in so occasion, his sustained on injuries, any, plaintiff if wife said and any negligence part on the not due to of defendant injuries were herein, any particulars out in other instructions Keene,'in of the set you case, plaintiff is not entitled to recover and will find then in that 1181 parts in your (Quoted on both counts.” verdict for the defendant court.) by trial these instructions added unduly empha- it D., plaintiff As to. contends that Instruction exactly the This instruction is same proof. sized the burden of (citing cases by of this court approved the instruction Division Two Doherty v. St. Louis ruling) in support from both Divisions in of its assignment is over- Co., 996, (2d) 339 Mo. 742. This Butter ruled. confusing it G, plaintiff contends that is
As to Instruction misleading of case and has the effect under circumstances language unduly danger An instruction in this same limit the zone. Joseph by in Wallace v. St. approved of this court Division Two 1011, saying (2d) R., L., Co., 282, H. & P. 336 Mo. 77 S. W. danger zone;” purport limit or to circumscribe
it “does meaning phrase ‘place of im merely that “it but defines “does both’parties” in the of so peril’ minent used instructions essentially meaning frequently language as has been same defining danger- by peril’ or ‘imminent neces used this court sary (citing quoting from cases to invoke the humanitarian rule” foregoing apparent from the Divisions); that “it is from both peril’ in Instruc ‘place of imminent contained definition peril’ ‘imminent L is in have held the term tion accord with what we has been mean in as this.” The definition since cases such same 911, W. repeated Co., 340 Mo. 104 S. Kirkham v. Jenkins Music 160; v. (2d) 234; Terrell, 15, (2d) Mahl 111 W. Bates Mo. S. Co., (2d) 31; W. Lotta v. Kansas Shoe 342 Mo. 116 S. Brown assign City 296. This (2d) Public Serv. 117 S. W. ment is overruled. F. Instruction principal
Plaintiff makes its attack defendant’s says legal instead that it “an abstract statement” contained He 533, 85 W. Moussette, 337 Mo. hypothesizing facts. Watts v. eases), referred to (cited by similar sole
(2d) and other negligence as instructions, hypothesized plaintiff’s- cause finding specific requiring must cause and which be 'done sole be showing acts would of facts a situation under which classify F humanitarian the sole cause. We Instruction as a converse de- because it a verdict on the basis what instruction authorized duty did, as was, rather than on fendant’s what the F sole Instruction K. Instruction author- true defendant’s cause believed that defendant’s ized a verdict for defendant negatived elements of the humanitarian evidence one of the essential ability plaintiff, to-wit: The of defendant’s doctrine submitted position in a driver to have avoided a collision after peril. A humanitarian instruction does not sub- imminent converse defense, and, speci- therefore does not heed to be as mit an affirmative However, concerning plaintiff’s as a sole cause instruction. fic acts *10 1182 ma- specifically hypothesize
we find that Instruction F facts did always (un- duty. terial to the issue A is of defendant’s defendant against him negligence) entitled, less he admits submitted a case submitting rule, under the humanitrian an as his de- to instruction by fense, (shown evidence) tending disprove facts one or “to more of the facts that v. St. [Doherty basic on which rule rests.” 996, Louis Co., Butter 98 He is also (2d) S. W. en- 742.] Co., to a (Doherty titled supra; Borgstede sole cause instruction v. St. Louis Butter 373), Waldbauer, 1205, (2d) v. Mo. 88 S. W. 337 if there City is to evidence which base it. v. Kansas Pub- [Crews 1090, lic Serv. (2d) Mo. 111 W. In this case defend- 54.] both, only ant had hypothesized plaintiff’s and both of them not acts duty (“F” but also referred to by plaintiff. defendant’s as submitted required finding that “Keene could not ... as submitted to you in striking automobile;” Instruction No. 1 have avoided said required finding while “K” plaintiff’s “injuries that not due any negligence part any on the par- defendant Keene in ticulars set out in other herein.”) situation, instructions In this if they conflict, instructions do not together. should be read [Bur ow v. Red Line Service, (2d) Mo. 919.] Since improperly contends that Instruction F narrows danger zone in conflict his main with Instruction we set out part here, Instruction 1 material as follows: you
“And if find that the steered said automobile to the brought upon said front paved portion wheel back left highway, of said and . . . that the plaintiff lost control of said automobile, you find, if so and that said diago- automobile went in a northeast, so, nal direction to the if plaintiff’s and to the hand left pavement, so, path said if and into Ply- side of a westbound operated by Keene, you mouth automobile H. V. and if further find struck, by automobile Plymouth was said westbound automobile, you . . . if further prior find that being by Plymouth, struck said so, automobile westbound if plain- automobile in riding, tiff’s said which his said so, wife if immediately coming approaching position into a of imminent danger being struck peril Plymouth said westbound auto- mobile and was unable to extricate his said auto- you . therefrom . and if further mobile find that the said Hall Keene, saw, highest or in the degree exercise of the of care could seen, plaintiff’s approaching automobile have immediately coming position peril, so, of imminent if into such and that plain- automobile, extricate therefrom, tiff was unable to ... n thereafter, highest degree the exercise of time care, so, if hand, so, if himself safety the means at and with reasonable with driving, so, if he was stopped and the automobile have said west- automobile, so, Plymouth speed slackened bound thereof,
1183 so, thereby if left, so, avoided turned the same have his striking plaintiff’s (then plain- the must be for automobile” verdict tiff). says part
Plaintiff that' Instruction F is in conflict with that of required Instruction 1 to act he saw “which defendant’s driver when plaintiff’s immediately coming position into a ‘approaching car peril,’ from of which authorized the to consider the situation shoulder,” plaintiff’s the time car ran off onto the We think this is true, plaintiff’s but also are that of In- we sure such construction 1 improperly peril, struction would extend the zone of imminent be- duty cause defendant’s under the rule did driver’s humanitarian plaintiff’s pavement at the time commence when car “ran off onto position peril the shoulder.” Plaintiff was not then in a of imminent position from defendant’s He never have in a of ear. would been peril kept position. imminent from it if he that had He no doubt was danger injury might' get in of both because not have been able to he highway might get his car back on the at all and because he it back way immediately get that he in such would thereafter it into a peril might position perhaps of from defendant’s car. It have been negligence'for and.comprehend defendant’s driver to fail to see this negligence but primary situation that would have been not humani- negligence primary place tarian. Such antecedent have no in could Moreover, a submission under the humanitarian rule. this court Banc) recently, reason, (en has for the same the use condemned “approaching” the word in this manner in a instruc- humanitarian Co., 139, (2d) tion. v. Festus Mercantile 343 Mo. 119 S. W. [Buehler 961, l. In of this extension of the zone of im- c. view incorrect 970.] 1, peril by plaintiff’s objection minent to de- made Instruction merit; fendant’s F is Instruction without argues further F improperly Plaintiff that Instruction restricted danger the zone so as to eliminate from consideration evidence the highway feet or more that car skidded down for 70 the path line; it the of defendant’s car before crossed center toward duty expressly it of de- and that limited commencement driver to time car had crossed the fendant’s when line; path in the of defendant’s automobile. Plain- center was (2d) 1052; tiff v. Beckmann 79 S. W. Martin (Mo.), cites Collins 861, Gray Fehse, (2d) 440; 331 55 v. v. Mo. S. W. Columbia Terminals 73, (2d) 809; 1235, 52 Mo. Pappas, S. W. Burke v. 316 see, also, Rausch, 344 142; 293 W. Prater v. Mo. S. concurrently This line herewith. of eases .was
(2d) decided Co., Mo. 911, 104 W. in Kirkham Jenkins Music considered they support (im- (2d) 234, cited to contention which same. zone) narrowing danger made instruction properly against-an duty language driver stated sim- therein, was case, -In Kirkham: F herein. ilar to that-used de- Instruction driving along féndant’s evidence north its driver was safety walking street; west side of a in the zone jnst safety north zone; inside the line and that west suddenly looking step into and, south, turned without took a west path only away. of defendant’s car when it a few feet distinguished they
This ground court those cases on the right angle crossing all danger eases with zones because wide obliviousness, proper and held the under the facts of the instruction case, saying: Kirkham
“It will be noted that the facts in cases disclosed each the above certainty a injured of a collision if the the or vehicle party and car question words, continued on their In course. other a collision was certain to changed follow unless one or party the other their course.- example, Gray For Co., crossing v. Terminals the deceased was a street west; south; from east to going the defendant’s truck if way both changing continued on their speed, without their rate of a collision between them apparent to certain occur. This court ruled, correctly so, peril arose, that the and the of the driver action, truck was bound to take under the rules of the humanitarian doctrine, by as soon as he discovered, could have exercise of the the highest degree of that a collision was imminent. It was ruled care] peril that the directly arose before the path deceased was in the truck. the This distinction is In obvious. the ease now before us no collision would have parties occurred both had continued to travel due north. Of course there possibility existed the that the might change go her course and west. But under hu- the manitarian doctrine ‘peril’ the word peril, means certain and not the possibility might bare that a collision result. v. Morris & [Banks 254, 482; Ridge 302 Mo. 257 W. Jones, v. 219, 335 Mo. 71 S. (2d) 713, l. W. (1, 2); c. etc. Vulgamott State rel. Trimble, ex Considering the above authorities and 1014.] applicable the rules to the doctrine, humanitarian we are of opin- the ion unduly that the instruction did not limit danger the zone.” here, think the situation is We the same cars, where going two both speed (about forty at the same per hour), miles traA^eling were in.op posite pavement eighteen directions on feet they wide so that would pass within less than six feet of they each other if continued the they course, reasonably would be expected to do. Plaintiff’s car got very far never from the center only line because one wheel went right off; right the front and not even the rear. As in Kirkham .the case, no collision would have occurred if both parties had continued to they going, in the direction obviously travel go, intended to plaintiff’s the time car prior to made the unusual unexpected Certainly, to the left. movement it is even more unusual for an auto to to the left of mobile move the center line a highway when meet car, ing pedestrian than it is for a another step safety outside a city It apparent, to cross street. is also zone plaintiff’s even on theory, got that part of his car over the center line in 'much less than seventy testimony seventy feet because the to the feet with reference length muddy by (right) related track made the south course, line, front wheel. Of before that track came over the center plaintiff’s left side of ear had it if it in the crossed skidded manner1 We F did stated. also note that Instruction language “immediately contain the (“directly path” into the path”) Furthermore, criticised in the above cited cases.- defend required ant was not plaintiff’s to base his instruction on evidence. by Defendant no repudiáted more bound estimate its driver changed than was he estimates after his visit right theory to the scene. It had the to submit the its shown evidence, namely, seventy own skidding instead of car feet completely line, northeast cross center “he flashed ’’ just abreast; across front of me as we drew sideways” motion of car skidding, was “not forward or careening,” “rushing but “a lurch or up” in front “faster than eye focus;” “just could elapsed about a second” from the time plaintiff’s car went until off shoulder impact, “just long enough get time of the for him to across facts, testimony road.” On which defendant’s driver’s tended show, seventy danger zone, there was no foot but there was instead *13 unexpected crossing line, a sudden of the plaintiff center which had right submit, to “disprove which believed would one of the- (ability basic facts” to plaintiff’s peril arose) act after essential to finding negligent a that its driver was under the humanitarian rule. Ramming, v. 340 Mo. (2d) This [Johnston 466.] corroborated, theory strongly by was condition of both cars after plaintiff hospital. the collision and the admissions made at the Moreover, plaintiff’s instruction, main as shown the italicised thereof, portion language used the as same did defendant’s instruc- hypothesizing plaintiff’s (The only tion in the movement of car. plaintiff’s hypothesized difference is instruction that his “automobile diagonal plaintiff’s went a direction to the northeast and to the pavement path” left-hand side of said and into the of defendant’s ear; hypothesized while defendant’s instruction that his “automobile high- to the left of the center and to the north was driven of the side way pathway automobile.”) Therefore, into the defendant’s any right language plaintiff complain hypothesiz- to that this waived prejudicial City ing of his car was v. Kansas the course [Crews (2d) 54, 111 W. and cases Public Service cited.] F of Instruction cannot be held to show These criticisms reversible error. assumes, that F further contends Instruction
Plaintiff with evidence, that'plaintiff “suddenly caused supporting said auto out highway left of the to the center line of the to be driven mobile that closely automobile;” approaching front of defendant’s plaintiff’s highway, wrong car “driven” to the con- side trary “skidding to out of all the evidence the case that the ear was highway wrong apparent control” down the and to the side. It is from wording assumption of Instruction F that is no there these jury required facts but that the to find that these were facts. just What we have said with evi- reference defendant’s dence finding shows that there support was substantial evidence to of the facts hypothesized, and, stated, as we defendant was entitled submit, charge negligence, defense to the of humanitarian facts which its evidence tended to show. Defendant was entitled to a jury verdict if the (namely: did believe these to be facts “That automobile was driven to the left of the center and to the highway north side of the pathway and into the of defendant’s closely automobile so in front of that defendant’s automobile defendant Keene could not striking ... avoided have said auto- mobile”). We also note that hypothesized Instruction 1 “plaintiff steered left,” surely said automobile to the means the same “plaintiff’s automobile was driven to the left.” We, therefore, language rule that this cannot be held to be reversible error. Plaintiff further contends that F Instruction allowed the jury contributory negligence consider plaintiff as a defense. Lynch
Plaintiff cites (Mo.), (2d) 273, Baldwin 117 S. W. in which this court proper held that it was to refuse an instruction which operating stated: “That right those the-train ‘had a to assume’ that highest would degree exercise the of care for- safety; his own they ‘had a to assume that dangers alert to the of a crossing’ railroad and would progress ‘cheek his going’ before upon track, ‘entering danger into a zone,’ and that he ‘would place safety leave attempt to cross the tracks without first exercising highest degree of care to ascertain if a train was ” approaching.’ We said that these statements were “directed at negligence suggest and would jury plain tiff could not recover if the believed he negligent in not exercising highest degree of care safety.” for his own Instruc *14 tion F did refer to the care exercise, should his alertness duty danger, to or his to ascertain what was approaching, but was hypothesizing confined to upon situation duty which defendant’s depended. We do not find Instruction F subject to be to the con jury struction that it allowed the to consider contributory negligence connection, as a deEense. In however, this we think that it wouid be better for an such instruction to only state when the defendant’s duty commenced, instead of prefacing such a statement with what the right a defendant “had to assume.” While we do not consider this se, prejudicial per the trial granted, court had a new trial on the
1187 matter, in- overemphasis ground that it an of we would was be (as overemphasis granted of of in of new trial because clined case Pearrow v. proof) judgment. the burden of to defer to its [See Thompson, 390, 811; 121 Rail (2d) 343 Mo. S. W. Arnold v. Alton Co., 1049, 124 this (2d) However, road 343 Mo. S. in case W. 1092.] and, the trial for trial from our court overruled motion new reading record, of we do not think it could have affected ver- submission, very whole, dict. The as was favorable considered - plaintiff. against assignment The F is Instruction overruled. assignment final Instruction K erroneous Plaintiff’s is that was because there no support was evidence to clause thereof “plaintiff operated suddenly so his automobile as to cause same to go position safety from a highway of on the side of the to the highway closely automobile,” left in said front defendant’s plaintiff’s contributory negligence and because it failed to exclude from suggested Lynch, consideration a defense as as Dilallo v. 340 82, 7, 101 (2d) Meyers, 412, Mo. v. McGrath 107 W. (2d) S. 792. first The criticism is answered we have what .already concerning second, defendant’s evidence. As to an Doherty instruction requirements approved with these same' was St. Louis (2d) 742, v. Butter Mo. 98 S. W. which was “solely submitted on the humanitarian doctrine.” In the Dilallo (which jury primary went case on both and humanitarian negligence) Doherty (and this court commented on the case this approved in the comment was McGrath case was also submitted primary both negligence), on humanitarian “When follows: primary negligence a cause is under submitted and the humanitarian rule, should, such instruction order avoid and con confusion flict, provision may contain the sole cause and what we term a not due negligence Doherty provision case, to the defendant as in the plain contributory negligence and also a direction not to is be determining recovery considered in under the humanitarian rule.” case, Doherty case, This is a like “solely submitted the hu Moreover, manitarian doctrine.” Instruction K not, did as did the verdict, Meyers case, in the instruction merely authorize a for defendant plaintiff’s car was into because driven “line defendant’s regard suddenly to how close how travel” without or as to whether negligent Furthermore, thereafter. defendant In (if they 1 stated-that must find for struction found hypothesized) though you'should “even the facts find from further 'guilty negligence, the evidence that the allowing get such, permitting position his automobile to into of imminent stating very favorably This was matter peril.” plaintiff. [See Barker, Mo. W. (2d) Certainly Smithers 47.] contributory made it negligence clear the driver’s statement *15 every this in necessary tbe be told It is not not a defense. instruction. GC., Bradley Dalton, concur. is affirmed. judgment The by Hyde, C., adopted foregoing is opinion PER CURIAM: —The Hays, concur, except J., P. judges All the the court. opinion the. absent. Spring Roberts, Shipton, Birdie Delia M. Lissa Masterson,
Venus gate Jaeger, Appellants, E. Nora Hester Masterson. (2d) 629. 130 W. Two, July
Division 1939.* Opinion September Term, 1938, February *NOTE: filed at 1939; filed; rehearing 15, 1939; motion for motion overruled March motion to filed; May transfer en Term, 1939, to Court Banc motion at overruled July 7, 1939.