661 S.W.2d 29 | Mo. Ct. App. | 1982
Defendant appeals from a judgment against her of $20,200 in a jury-tried personal injury case. The main contention on appeal is that plaintiff failed to make a submissible case under the humanitarian doctrine on his specific theory that defendant was negligent in failing to swerve or slow her vehicle and that that negligence caused plaintiff’s injuries.
Plaintiff was riding a motorcycle on two-lane Highway 141 in St. Louis County. He began passing a series of cars ahead of him which were traveling at 30 m.p.h. Plaintiff’s speed during the passing was 40 m.p.h. After successfully passing several vehicles, plaintiff arrived at the left rear of defendant’s car. The front of the motorcycle was even with defendant’s rear fender or tire, when defendant “veered sharply to the left” to go onto a road making a T-intersection with 141. Plaintiff attempted to swerve his motorcycle to the left and believed he may have swerved a foot or two when the left front fender of defendant’s car struck his right leg and the motorcycle. The contact with the motorcycle was approximately in its center. The collision did not knock the motorcycle over and plaintiff was able to stop it approximately .2 of a mile down the road. Defendant’s speed at
Defendant contends that the evidence was insufficient to establish that defendant had sufficient time after plaintiff reached a point of immediate danger to have taken any action which would have prevented the accident. Both parties are in agreement that the point of immediate danger was reached when defendant’s vehicle physically began its turn. In the present state of the law this is correct. See McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704 (Mo.banc 1952) [1]; Granger v. ITT Continental Baking Co., 536 S.W.2d 894 (Mo.App.1976). We will discuss that matter more fully later. Given that point of immediate danger we conclude that plaintiff’s evidence was insufficient to make a case.
The plaintiff’s evidence established that defendant’s vehicle moved to its left no more than 10 feet from its original position to the point of collision. Defendant was traveling 45 feet per second at the time. There was no evidence of the arc of turn other than defendant veered “sharply” left. While the lateral movement of 10 feet in such a turn would obviously take longer than if defendant were approaching plaintiff at a right angle, it is clearly sheer speculation to conclude that in a sharp veer such lateral movement at defendant’s speed would take longer than the judicially recognized three-fourths of a second reaction time. On cross-examination plaintiff said the time between the commencement of the turn and the collision was “Some part of a second, I guess — a second.” This answer at best establishes plaintiff’s guess of a maximum time of a second and equally establishes the time may have been less than that. There was no evidence of how quickly defendant might have been able to swerve or slow the vehicle or that such slowing or swerving as might have been possible would have avoided the collision. We are aware that courts have held that movement of a steering wheel creates an almost instantaneous response by the vehicle. Jenkins v. Jordan, 593 S.W.2d 236 (Mo.App.1979) [5, 6]. But, when dealing with times as brief as those involved here (¼ second at best being the difference between plaintiff’s “guess” of a second and the accepted reaction time) we cannot take judicial notice that such response would occur quickly enough to have avoided this accident.
Plaintiff also invokes the res ipsa loquitur doctrine of humanitarian negligence — “almost escaping.” This contention is based upon defendant’s answers on cross-examination that it was “possible” that another six or twelve inches between the vehicles might have avoided the accident. From this plaintiff concludes that in the time available defendant could have created that much space by slowing or swerving. There are at least two things wrong with this argument. First, the questions posed called for a conclusion regarding a hypothetical situation by a lay witness and defendant’s objection should have been sustained. The testimony was improperly admitted and plaintiff cannot rest the submissibility of its case on such non-probative evidence. Galovich v. Hertz Corp., 513 S.W.2d 325 (Mo.1974) [10]. Secondly, if the question and answer were permissible, a jury can only base its verdict upon a factual situation which is more probable than not. Lewis v. Hubert, 532 S.W.2d 860 (Mo.App.1975) [21, 22], That it was “possible” that six or twelve inches would have avoided a collision does not make it more likely or probable that such distance would have done so. “Possible” encompasses the entire range of probability from highly improbable to almost sure and is insufficient by itself to allow a jury to make a finding of probability. Osborn v. McBride, 400 S.W.2d 185 (Mo.1966) [6, 7]; Wheaton v. Reiser Company, 419 S.W.2d 497 (Mo.App.1967) [5].
We are convinced, however, that such a result is unjust and is based upon court decisions which have erroneously defined the zone of “imminent peril” (now immediate danger) to be applied to fact situations such as this one. Missouri’s “humanitarian doctrine” is an extension of the “last clear chance” doctrine recognized in some form in the common law of most American jurisdictions. Common law last clear chance encompasses three basic situations: (1) a plaintiff in a position of actual peril and a defendant who knows of that peril; (2) a plaintiff in a position of actual peril and a defendant who in the exercise of the requisite degree of care should know of that peril; and (3) a plaintiff who is in a position of peril because of his inattentiveness or obliviousness and a defendant who knows or has reason to know of that obliviousness and knows of the plaintiff’s position. Harper and James, The Law of Torts, Vol. 2, Sec. 22.13, p. 1245. In each of those cases defendant may be liable, regardless of plaintiff’s negligence in placing himself in the position of peril, if the defendant can in the exercise of the requisite degree of care and with safety to himself and others avoid injury to the plaintiff, i.e., if he has the “last clear chance” to avoid the accident. Missouri’s “humanitarian” negligence adds to that list of situations one involving a plaintiff in a position of peril because of his inattentiveness or obliviousness and a defendant whose only negligence is his similar inattentiveness or obliviousness to plaintiff’s peril.
In the first two last clear chance situations, plaintiff has by definition placed himself into a position of peril from which he can no longer extricate himself. His safety is solely dependent upon the care which the defendant exercises. In such a factual situation defendant’s obligation under the law should not only be to take such evasive action as necessary to avoid injuring plaintiff but also to initially avoid taking any action which will cause injury to the plaintiff in such a position of peril. McClanahan v. St. Louis Public Service Co., supra, presents just such a situation. There the plaintiff, a trespasser, was hanging onto the side of a moving streetcar. He was clearly in a position of danger from which he could not safely extricate himself. The motorman knew or should have known of this position of peril and presumably should not have done anything which could cause injury to this imperiled plaintiff. The Supreme Court held, however, that plaintiff did not reach a position of imminent peril until the
A similar analysis can be made of the third category of last clear chance. There the defendant’s actual knowledge of plaintiff’s position of peril imposes a duty upon him to avoid engaging in any conduct which could result in injury to plaintiff because of plaintiff’s obliviousness. None of these three situations are comparable to “humanitarian negligence” where by definition two oblivious parties have by their concurrent actions created the position of immediate danger of which neither has actual knowledge.
Admittedly the definition of imminent peril articulated in McClanahan is reasonable and logical under humanitarian negligence. In those cases plaintiff’s position of peril is created by, and continues in existence because of, his own negligence and defendant’s similar inattentiveness. Plaintiff retains the ability to avoid the accident presumably until both parties reach the point of no return when neither party can prevent the accident.
We believe that under a proper definition of position of peril under the last clear chance doctrine plaintiff here made a sub-missible case. We are bound, however, by the definition of imminent peril found in McClanahan. That case precludes plaintiff from recovering. We also believe that plaintiff’s theory of recovery was based upon that ease and its progeny, which precluded him from submitting what we consider the proper theory to the jury. Were we free to do so we would remand to give plaintiff an opportunity to submit his case on the proper theory. But we are not so free. We therefore transfer this case to the Supreme Court of Missouri for reexamination of the law, particularly McClanahan v. St. Louis Public Service Co., supra.
Cause transferred to the Supreme Court.
. We set out the facts most favorable to plaintiff consistent with his theory of the case and his evidence. Defendant’s testimony was so inconsistent with plaintiff’s evidence that it may not be used to support the submissibility of plaintiff’s case. Fisher v. Gunn, 270 S.W.2d 869 (Mo.1954) [3-5], Plaintiff so concedes.
. “Humanitarian” negligence is so much a part of the fabric of Missouri law that no real purpose would be served in questioning a doctrine which takes two parties simultaneously and identically negligent and imposes liability on one of them.
. One writer has suggested that as many as 90% of the cases delineated by Missouri courts as “humanitarian” are in fact “last clear chance” cases. See Becker, The Humanitarian Doctrine, supra.
. At trial plaintiffs attorney argued that plaintiffs peril commenced at some time before defendant began her turn and stated that defendant had the “last clear chance” to avoid the accident. On appeal plaintiff concedes the position of immediate danger established by McClanahan v. St. Louis Public Service Co., supra.
. If at some point only defendant can prevent the accident, then the case becomes one under the first two last clear chance situations.