*1 stаt- and, if motion had conformed examined review authorize which would is disclosed proceedings error ute, no upon merits, its be determined If, therefore, the case a reversal. no in- as will have suffered appellant ground complaint has no ap- present his case on properly jury by of his counsel the failure peal. may given this ease the be
Under consideration judgment of the trial court right not to a exist reversal does concur. affirmed. All Frank Adam Electric Walter Fannie Goоdson v. Schwandt 795. Appellants. S. W. Company, Two, Division December appellants. W. H. WoocLivmxlfor *2 Maloney, F. & Hensley,
John F. Allen Walter StaMMdh and respondent. Ma-rsaleh for HIGBEE, Plaintiff, the widow of Frank Goodson, basing’ her C. action on Section 4217, Revised 1919, Statutes sued damages for for
thе death of her husband, who was struck fatally injured on on Seven- Sehwandt by Walter driven truck 12, 1923, March injuries died from Louis, city of St. teenth Street for judgment a verdict had Plaintiff days
few thereafter. appealed. against of the defendants $9,000 both but the negligence, assignments petition several The contains theory. humanitarian case was tried on the Company, Electric employee an Sehwandt, The defendant three-quarter- p. driving a 1923, was on March at about m., Ruthsatz, Mays Elmer Will Locust Street. ton truck east on Comрany, were Electric employees of the who were also plaintiff: Mays as a witness Will testified with Sehwandt. Coliseum, and from the Street “We drove east on Locust A ... building line. even us. When passed in front of coming north on Seventeenth Street *3 I Mr. saw started eаst. horn and passed this ear we blowed the got stepped off the across he northbound car Just as that Goodson. six proceeded about .into street. He of Street sidewalk Locust al- there were and, owing to the fact that into the feet north street Street approaching Seventeenth ready automobiles two westbound making abreast, pulled around, three abreast each and another other, back, left front fender and when he did Mr. Goodson Goodson, knocking Mr. him down. of Mr. Sehwandt’s truck struck I him as he stepped I off the curb. saw saw Mr. before he Goodson up Mr. At that time Sehwandt’s automobile walked to the corner. Street. When Mr. stopped on the west of Seventeenth was side horn Sehwandt started to cross Seventeenth S'treet hе blew his before starting. stopped At Mr. on the time Sehwandt’s automobile right of wheels of his truck were west side Seventeenth about two to north of the south curb of Locust Street. At four feet right Mr. Mr. was of the time end wheels something Sehwandt’s automobile were like twо feet the south of curb Locust were on Street. The wheels closer the south curb the east Street than when the side machine parked on the west side Seventeenth Street. The westbound eight building car turned out line, of line about feet east of the (east) west side of Seventeenth Street. When Mr. Goodson stepped off the curb just south into the street he was a little east of building my judgment the east line on Seventeenth Street. In east, maybe was about four east, building feet or six feet of said line at this walking direсtly time. He did not run. He was north. Be- fore Mr. Selrwandt’s struck Mr. Mr. Goodson, automobile Sehwandt horn hollered, blew his ‘Look out—look out.’ After Mr. Good- son stepped six into the street he did feet not remain there or stand any time, there but backwards and While turned. he was attempting body, to turn his the left fender of the machine 'struck
669 him. I say way could to turn. Mr. not he tried Schwandt blew his horn the second time when the front end of his machine was about building even with Street and the east line on Seventeenth west, pulled about the time that ear of line from the this other out Mr. Goodson in front Mr. Sch- at this was about four feet time eight moving wandt’s about or miles an hour/’' car, which was evening was clear and The evidence also the sur- showed going per face of at the street was and that six miles dry hour cоuld means at hand within six have been eight eight feet and at hour in ten The width miles an feet. Locust collision, curbs, Street at the between the feet Ruthsatz, inches. The who evidence Schwandt testi- fied defendants, substantially for the as that of "Will the same Mays' aid to case. affords additional all again
At the close of case and the close of testimony, separate each offered a demurrer to the defendants evidence, which was overruled. danger
It is clear that at the instant Goodson discovered he inwas being run automobile, over the third he was out of the or course of the truck. confused, He became back instantly towards south, the corner of the jumping proximate truck’s left His back fender. was the cause of injuries. the collision and of his We think the plaintiff clearly injury shows to her husband was ac- purely cidental and unavoidable the defendants. Railroad,
As said
Rollison v.
the is Kenwood, reversed. Davis and concur. opinion PER foregoing CURIAM: The C., approved of Higbee,
by the court. Blair, JJ., concur; White, Walker and P. J., concurs in the result. Reiieaeing.
On Motion doe challenges HIGBEE, C. The motion opinion the statement in the that danger “at the instant Goodson in discovered he was being of path of the or course was out autоmobile, he third
run over toward jumped back confused, suddenly truck, of he became truck’s left corner of instantly by the south and was ’’ fender. six than feet got further never The motion asserts that Goodson truck Street, left side while the from the south curb of Locust approached from curb, said truck eight was as or ten from feet in the was away; that Goodson thirty-five feet more than he danger at the time therefrom path truck and of defendant’s danger while the position in said of or and had moved been that him, and tоward truck ran the distance aforesaid feet. within six could have been only Mays, testimony Will opinion of part quotes The 'Fur- of the accident. eye by plaintiff as to the facts witness offered Mays ther on testified: curb, eight and"several
“I feet from the sаw about six or Goodson Mr. Schwandt Street. of line feet east the east curb of T six Mr. feet or saw Goodson looking was At the time also ahead. path Street, had cleared the he line of Locust from the south curb was at that time of machine. Mr. Goоdson Mr. Schwandt’s two cars abreast this car. left of Mr. There Schwandt’s got afraid around, Mr. time; Goodson and the third car came It struck him. left fender back and Mr. Schwandt’s around, Mr. was third car came jump. . . . sudden When third left, and when the car Goodson was and to the to the front top came on of him back.” testimony of Reading the witness connection quoted stated in the when the witness apparent it is opinion, street,” lie was “proceeded Goodson north into the about feet merely estimating’ walked from the curb into the distance Goodson distinct, “at street; the other statement definite time I curb line of saw Mr. so from the south Goodson six feet or Locust machine. path he had Mr. Schwandt’s cleared the Mr. Goodson Schwandt’s car.” was at that left Mr. time escape that, testimony
There is no conclusion on the directly accident, had-walked witness as to north Schwandt’s into Locust Street until he had cleared being car danger to the left out going when, the third account of the movement sudden *5 westward, backwаrd, alarmed, suddenly became by the left truck. This is the of S'chwandt’s front fender testimony by plaintiff’s the testi- witness, is corroborated mony of in who were Schwandt’s two witnesses for the defendants track theory at that Schwandt precludes time. The evidence failed tо peril his diligence striking exercise Goodson after to avoid was or should been discovered. have solely jury
Respondent submitted the ease instructions that Sehwandt doctrine; is, on the last that chance or humanitarian seen that have negligently аfter he could stop failed to the truck separate in offered position peril. Goodson was The defendants again at case demurrers to the close evidence at the There- overruled. were the close of all the These demurrers evidence. gave reads: after court Instruction defendant’s you if find and believe jury “The court instructs that when accident immediately the evidence that at the time before Goodson, Frank approached operating which Sehwаndt was find, you if left and clear of so Frank was to the the said time, if path operating of the truck which Sehwandt was path you find, suddenly into the and that Frank Goodson so you find, ánd .it case, in in if so question the eastbound truck danger it was late for position the time he first intо a too came find, you accident, you and if prevented the driver to have if so evidence, doing, find and that act further believe from the his any. death, if his then was the which caused sole cause of the accident plaintiff your cannot verdiсt must be the defend- recover, and ants.” by submitting
It upon is contended the humanitarian the case doctrine, appellants say war estopped to there is no evidence are ranting theory. on that submission of the ease Counsel cite Tor 430; Pryor, sеe, also, Allen, rance v. 210 W. rel. v. State ex theory, pleading Tn addition to petition the humanitarian as negligence signed operated as the defendants the truck at an dangerous speed; excessive and rate to maintain a failed watc1' truck; negligently ahead of the motor stop failed to said truck or speed approached slacken its as it Goodson and failed to warn him approach of the of the truck. l’espondent
Tt is contended that made submissible case on the theory, last-chance doctrine or humanitarian but is not claimed that a scintilla of support evidence was offered in as- other signment fact, negligence; plain- disproved by were evidence, tiff’s as well as bv all the evidence the case. It was slioAvn all the evidence that Goodson was out of the truck and that he backward and plaintiff left front put fender of the truck. This fact out of court any theory Therefore, general of the case. when the demurrers offered, the court was advised that the defendants claimed that doctrine, case was made under the humanitarian since affirmatively disproved assignments all other of negligence. Tn these question circumstances can there be no that the defendants *6 case, urge Torrance
may in the appeal. their demurrers on As W., top p. 1, S. 433: col. his "This, that, made reason has after defendant in- clear, estopped he in his other by theory is not contained structions, theory him action upon forced al- illustrate, plaintiff’s upon court. To if founded several case is challenges leged by demurrer, negligence, defendant, acts of sufficiency grounds negligence, the evidence as to one of the precluded asking should not be said that instructions he is theory adopted overruling by the the dеmurrer. To court upon hold would force the defendant to stand his demurrer before jury. supposed But Here de- case is not case. challenged case, upon murrer and the evidence all whole alleged negligence>. grounds overruling sevеral In a de- such murrer, theory upon any particular court does not indicate its ground negligence.” italics.) (Our definitely
As stated, distinctly proved heretofore it was witness G-oodson out of while to suddenly left of truck, defendant’s he back and was struck by the left proximate front fender of the truck. This was the sole cause of death. proof his There was no offered sustain assignment negligence; fact, plaintiff’s disproved all proof of them. But if there support had been other averments negligence, the fact that back and was injuries the fender and so sustained from which died, defeated cause of action. Hence the reason for the rule applied the Torrance had application case to the facts in this We rehearing case. think the motion for should be overruled White, accordingly Walker, so ordered. Blair and JJ., concur; J., P. absent. Jett, Appellant. H. W. 752.
The State v. Eliud Two, Division December