*1 Clarke, Minor, K. Her Father, v. Lillian Robert
Jackson, Appellant. 122. Two, 3,May
Division Lange
Wilbur appellant. G. Schwartz and Morton K. *2 Bryant Sheppard respondent. for Herbert E. and Arnot L. brought Clarke, suit WESTHUES, minor, Plaintiff, Lillian C. Jackson, against guardian, by Robert K. natural injuries allegеd have damages $15,000 personal for recover negligence There was a through of the defendant. been sustained grantеd new but the trial verdict appealed. trial and defendant injured came
Plaintiff was which she defendant. Plaintiff’s case driven jury upon primary also under the to a submitted gave a number humanitarian rule. The court granted in
request A new trial was of the defendant. find appellant’s reply we structions erroneous. brief wTeredeemed following statement: respondent, points respect “With tо the first and case for the made a humanitarian have conceded that *3 jury, Instruction properly if that case submitted in and wаs improp- 2, 5, Nos. were then the ‘sole cause’ instructions and No. cited erly erroneous worded and were under the doctrinеs the re- hand, proposition respondent’s under II of brief. On the other was spondent herself humanitarian case seems to сoncede that no giving the such jury, no was made for the then error committed instructions.” sole cause entitled therefore whether was
We will determine jury have her case submitted to the humanitarian doc the under south 25, a few miles Highway The collision ocсurred on No. trine. Crystal City, Plaintiff north in Ford Missouri. was p. were at about June the car with nine m., Patsy Segirt. girl father, mother, her sisters named two and parties front occupied Plaintiff and the father seat the they that the rear seat. Plaintiff the of the car testified hour; twenty-fivе per miles traveling speed were north at a about burning; dark; that that were it was that the of the Ford of the time and, all at the was at times on the right of right edge collision, a number of feet to was near roadway hard surfaced for highway. was center line оf black-top. commonly twenty width of about with what is called not see looking but did that was ahead further testified she noise felt scrаping anything coming; suddenly heard a that stopped. whereupon was something arm, strike her off was broken the ear was found the hаndle of door of that glass body of the ear. The were scratches on and there time, broken. at the was Plaintiff’s door, of thе which was down the elbow arm, resting struck door, which had been occupants of the injuries. Her father causing her serious object struck their testimony whatever car corroborated signal given. col- lights, warning had After no and that no any- lision, to see if stopрed went to defendant his truck and the scene injured. he know one was father testified that Plaintiff’s did collision, passed along when defend- the road until after south; ant’s truck was a few examined hundred he truck and any lights; found that not have it did body edge chassis; of the truck a cross- extended of the over truck; apparently beam extended location of this beam was such that it strike Ford’s doоr would handle, which had been broken off. Plaintiff’s father also he truck, collision, that when noticed this after the burning very but dim. The defendant approaching speed thirty-five saw or at a hour; forty he, defendant, miles south his truck, thirty-five per hour; or truck was at all times on thе side at the time of the collision the thereof off hard wheels roadway; plaintiff’s ear, surface when from his truck, suddenly toward his thе side thereof turned and struck causing rear, one of the blow near tires of the rear dual wheels also testified that were burn- оut. Defendant ing, including headlights lights. and clearance evidence, location of as to the cars, passing, their cars, would hаve missed course, each other That, happen. at least six feet. Under did evidence, question jury to decide as to whо question, however, to blame. is, did make a deciding under the humanitarian doctrine? take *4 plaintiff’s driving on so, evidence true. If car a night, side of with the dark of burning. in opposite Defendant was with direction a truck the of which extended the chassis. head The lights burning. plain of truck if And evidence to tiff’s be that she was center of of highway, truck, when it came in with then defendant’s plaintiff’s must have been chаrged knowledge
In circumstances defendant occupants danger. swerving A in to right, evi would have the collision. avoided justifies рlaintiff peril dence an inference position was in a impending not, however, oblivious collision. We are stat ing facts, рlaintiff above in the evidence contained witnesses, true. But, are it is evident that evidence Lynch, made case under the humanitarian rule. a v. Dilallo [See strong- (2d) 7, l. (1-6).] Appellant 10 340 Mo. S. W. c. relies ly upon Henson, Phillips case of v. 326 Mo. the left
1065. In that turned to at street intersection. case a truck a danger arise was held that the in ease did not until the truck plaintiff. case pathway left-hand turn into the made before truck us there was no evidence that defendant’s turned to the pathway plaintiff, into the but, or to thе as defendant straight testified, in evi words, drove a line. other there justifying dence an inference that the defendant road, therеby on the left least side of the placing danger. lays Appellant great in plaintiff upon stress fact that she did not see the bеing, unbelievable, the contention this evidence was and also negligent. disclosed highway of her car illuminated the fifty one ahead, hundred and but did not illuminate out, plaintiff If road. defendant’s truck only ap or two in which to discover truck. cars Two proaching thirty еach hour cover fifty distance of So one hundred and about two seconds. in that negligent failing even discover space hu defeat under the of time would not authority Phillips Henson and manitarian doctrine. Under the v. Lynch, supra, opinions, cases thosе v. discussed in Dilallo under the humanitarian rule. submissible case appel questions, true we need consider be We, how that his instructions wеre erroneous. lant concedes rule, given desire to must ever, call attention instructions, evidence, and also that the “sole upon be cause” based cases, in humanitarian authorizing verdict for the defendant consideration room for оf contribu not be so worded as to leave supra, Dilallo Lynch, defense. v. tory as a [See there cited.] granting plaintiff trial nеw trial af- order is Bohling, CC., Cooley concur.
firmed. Westhues, C., adopt- foregoing opinion is PER CURIAM: The judges All the concur. opinion of the court. ed as