ETHEL KIRKHAM, Aрpellant, v. JENKINS MUSIC COMPANY, a Corporation, and I. R. LOOSEN.
104 S.W.2d 234
Division Two
April 21, 1937
If the Legislature has the power to attach as a condition of eligibility that members of an elective body, such as the board of education, shall be selected from the two major political parties, then it necessarily follows that it would have the power to prescribe that all the members shall be of one political party, or that its membership be made up of individuals belonging to the political parties casting, respectively, the highest and third highest votes at the last preceding general election, thus, in both instances, making ineligible members of the numerically strongest minority party. To so restrict eligibility would, we think, constitute a violation of the constitutional guaranty mentioned.
We find no support for respondents’ position in the line оf cases cited by them upholding statutes providing, as a condition precedent to a political party participating in a primary election, that it shall have polled a certain percentage of the total vote at the next preceding election.
The purpose to be attained by the statute, as amended, was to make the administration of the affairs of the school district nonpartisan. This end will have been accomplished even though the invalid provisions respecting affiliation with an indefinitely described рolitical party fall, as unconstitutional.
It was upon a consideration of the foregoing matters that the peremptory writ was ordered. We thought then, as now, that it was providently issued.
All concur, except Douglas, J., not voting because not a member of the court when сause was submitted.
I. B. Smith and Burns & White for appellant.
The collision occurred on Walnut Street, near the south line of Twelfth Street in Kansas City, Missouri. Walnut Street is a north and south roadway, and Twelfth Street runs east and west. There was a double street car track on Walnut Street. Plaintiff‘s evidence disсlosed that on the afternoon of July 6, 1932, she and her small nephew attempted to cross Walnut Street from east to west in the pedestrian way on the south side of Twelfth Street; that when she arrived in the safety zone, which was located east of the car tracks, the stop аnd go lights changed in favor of north and south traffic; that she stopped in the safety zone; that a street car traveling north stopped in front of her for the purpose of discharging passengers. Plaintiff testified she walked south in the safety zone to permit the passengers to аlight and occupy the northern part of the safety zone and pedestrian way. Plaintiff stated that after the street car moved north and the passengers left she walked due north in the safety zone intending to turn west in the pedestrian way when the lights were in her favor; that she was watching the lights on the northeast corner of Twelfth and Walnut. Plaintiff further testified that as she was thus proceeding north in the safety zone she was struck by respondent‘s car, which was traveling north on Walnut Street; that she did not see the car approaching and that no warning was given.
Defendant Loosen testified to the following state of facts: That he was in a car traveling north on Walnut Street on an errand for the Music Company; that he saw plaintiff walking north in the safety zone; that he was traveling in the east car tracks immediately to the west of the zone; that he did not sound a warning or slacken his speed, which was about fifteen miles per hour, and when he reached a point within a few feet of plaintiff she suddenly turned and took a step to the west in the path of his car; that he immediately swerved to the west and stopped his car within a few fеet, but that the fender of the car came in contact with plaintiff, knocking her to the pavement. He testified that he at no time entered the safety zone and that plaintiff gave no warning or indication that she was going to move out of the safety zone. A number of witnesses testified for the defendants.
The case was submitted to the jury on the alleged primary negligence, relating to defendant‘s driving through the safety zone. In another instruction the case was submitted to the jury under the humanitarian doctrine in failing to warn or swerve the car after defendants saw that the plaintiff was in a position of peril.
“The court instructs the jury that the defendant, Mr. Loosen, had a right to assume that the plaintiff would not step out of the safety zone, if you find that she did, into the path of his approaching automobile, if so, and if you find that she did step out of the safety zone then there was no duty upon defendant Loosen to sound a warning or slow down or stop his automobile or swerve same until it became aрparent to him, by the exercise of the highest degree of care, that plaintiff intended to move from said safety zone and into the path of his approaching automobile, if you find that she did; and the court further instructs you that if you find that plaintiff stepped out of said safety zоne and into the path of defendant Loosen‘s approaching automobile, if so, in such close proximity to said automobile that the defendant Loosen could not, by the exercise of the highest degree of care, have avoided striking plaintiff, then your verdict will bе for the defendants.”
In appellant‘s brief the instruction was assailed upon several grounds. One of these assignments, which has given us much concern, is appellant‘s contention that the instruction unduly limited the danger zone, in that it told the jury, as a matter of law, that the driver of the car hаd the right to assume that the plaintiff would not step out of the safety zone and that he owed plaintiff no duty until it became apparent to him, by the exercise of the highest degree of care, that plaintiff intended to move from said safety zone. The point of collision wаs about forty feet south of the pedestrian way. Plaintiff testified that she did not step out of the safety zone and did not intend doing so until she reached the pedestrian way and then only if the traffic signals were in her favor. There was no evidence introduced of any act on the part of plaintiff which would indicate that she intended to step out of the zone.
The humanitarian doctrine is not applicable unless plaintiff was in a position of peril. Now then if we assume, which we must do in discussing this particular point, that plaintiff was struck at a point outside of thе safety zone, and that defendant was at all times driving his car west of the zone, when did the peril arise? If plaintiff had continued on her course due north in the zone, and defendant‘s car continued on its course due north, west of the safety zone, there would not have been a сollision. Does it not necessarily follow then that the peril did not arise until the defendant could have discovered, by the exercise of the highest degree of care, that plaintiff intended to step out of the zone to the west? We think so, and the instruction is in harmony with this theory. Apрellant has cited a number of cases in support of her contention that the peril arose before she took the step to the west into the path of the car.
“Under this instruction no duty whatsoever was imposed uрon the driver of the automobile to take any action or do anything to avoid striking plaintiff until after she stepped ‘directly into the path of the automobile or so close thereto’ that he could not thereafter in the exercise of the highest degree of cаre have averted striking her, whereas the driver‘s duty under the humanitarian rule began when he saw, or by the exercise of the highest degree of care could have seen, plaintiff walking toward the path of the car, apparently oblivious of its approach.”
It will be notеd that the facts in each of the above cases disclosed a certainty of a collision if the injured party and the car or vehicle in question continued on their course. In other words, a collision was certain to follow unless one or the other party changed their course. For example, in Gray v. Terminals Co., the deceased was crossing a street from east to west, the defendant‘s truck was going south, if both continued on their way without changing their rate of speed, a collision between them was apparent and certain to ocсur. This court ruled, and correctly so, that the peril arose, and the driver of the truck was bound to take action, under the rules of the humanitarian doctrine, as soon as he could have discovered, by the exercise of the highest degree of care, that a collisiоn was imminent. It was ruled that the peril arose before the deceased was directly in the path of the truck. The distinction is obvious. In the case now before us no collision would have occurred if both parties had continued to travel due north. Of course there existed the possibility that the plaintiff might change her course and go west. But under the humanitarian doctrine the word “peril” means certain peril, and not the bare possibility that a collision might result. [Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482; Ridge v. Jones, 335 Mo. 219, 71 S. W. (2d) 713, l. c. 714 (1, 2); State ex rel. v. Trimble, 300 Mo. 92, 253 S. W. 1014.] Considering the above authorities and the rules applicable to the humanitarian doctrine, we are of the opinion that the instruction did not unduly limit the danger zone. The instruction informed the jury that under the law the driver was not bound to act until it became apparent, by the exercise of the highest degree of care, that plaintiff intended to move from the safety zone. This is in harmony with the doctrine announced in the cases cited by appellant which we have discussed.
What we have said is pertinent only to the humanitarian doctrine and does not apply to primary negligence. In this case we need not decide the question of whether the evidence justified a finding that the driver of the car was guilty of negligence in pro-
It is insisted, by appellant, that the instruction erroneously assumed that the path of defendant‘s approaching automobile was outside of, or to the left of the safety zone. In this we think aрpellant is correct. Plaintiff testified that she did not step outside of the zone. The driver of the car testified that he proceeded north immediately to the left or west of the zone. If plaintiff‘s evidence is true then she was struck while in the zone and, therefore, was in the path of the car. If the car was traveling north partly in the zone and partly outside of the zone it is possible that plaintiff was struck even though she did not step to the west. In other words, the instruction did not require the jury to find that the plaintiff would not have been struck by the car if she had not stepped outside of the safety zone. The instruction should have submitted to the jury the question of whether the defendant proceeded north wholly outside of the safety zone, and not assumed as a fact that it was necessary for plaintiff to step outside of the zone to get into thе pathway of the car. The instruction should have been so worded as to require the jury to find, before authorizing a verdict for the defendant, that the act of the plaintiff in stepping out of the zone, if she did so, was the sole cause of the collision.
We have ruled that in a case submitted to a jury under the humanitarian doctrine a defendant, if he has introduced evidence to that effect, has the right to have an instruction submitting the question to the jury of whether the negligence of the plaintiff was the sole cause of the injury; and if the negligence of plaintiff was the sole cause of the injury the instruction may authorize a finding for the defendant. [Hough v. Chicago, R. I. & P. Ry. Co., 339 Mo. 1169, 100 S. W. (2d) 499; Parker v. St. Louis-San F. Ry. Co. (Mo.), 41 S. W. (2d) 386, l. c. 388 (5); Borgstede v. Waldbauer (en banc), 337 Mo. 1205, 88 S. W. (2d) 373.] Such instructions should not assume disputed facts, or be so worded that a jury would be led to consider contributory negligence as a defense. [Doherty
For the error pointed out the judgment is reversed and the cause remanded for trial. Cooley and Bohling, CC., concur.
PER CURIAM:—The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.