*1 being unauthorized informed an sale pledgor, A equity. equity prop may pledgee to recover sue pledgee, by the p. 1011, proceeds C. J. notes thereof. [49 recover erty, remedy The App. 111, 116, 10; Fries, v. Mo. 117.] Schaaf 9 and plain all plaintiff and under the evidence was available to invoked given. the relief tiff was entitled carefully con- by appellant made have been points first three
The they even sustained would be ruled because but need not sidered change result reached herein. J., Ragland, concur, except who All judgment is affirmed. only in result. concurs A. Company, Public v. St. Louis Service Kloeckener
William (2d)W. 1043. Appella 53 S. Corporation, n t. 22, One, 1932.* October Division April Term, 1932, September 3, Opinion filed at 1932: *NOTE: motion filed; rehearing Term, motion overruled at October October 1932. *2 T. F. Francis, B. <?. Carpenter Allen, Moser <&Marsalelc for appellant. *3 respondent. L.
Freeland Jachson for *4 damages personal injuries, HYDE, C. This isa suit a work railway street sustained a collision between driving from County, and in St. while home his automobile Louis Road, Plaintiff, driving Hanley 1927. north work on December on running Pershing on Boulevard, struck the work car east 100 feet Pershing is of those streets. Boulevard the intersection only Road, Hanley Road is wide while west of Hanley east of long hill It comes down a several blocks from feet wide. grade block, Road last between Hanley but west toward Hanley per only one cent. This block Road, Linden Avenue and long. is about testimony testimony; own
Plaintiff’s evidence consisted eyewitness apartment in an collision, who lived of an intersection; who eyewitnesses, that of two northwest corner of the Hanley Road, as far headed south on about an automobile were in Pershing apartment building; Boulevard as back from witnesses, in an farther north on who were automobile two other Hanley the collision but heard the Road did see crash thereafter; testimony.of happened saw former em- what Railway Company, as ployee expert, defendant Street an of the work cars. concerning brakes on defendant’s car struck just plaintiff’s car at about the driver’s seat and threw it over to the *5 testimony plaintiff’s of the street. was medical as to north side There point injuries no is made about the amount of the verdict. De- but no fendant offered evidence. pavement tended show that the in
Plaintiff’s evidence to inter- wavy rough, holes; stopped full of section was and that at the he
401 southeast curb of intersection; that because this curb was set back 10 feet farther than the southwest curb only he could see west to street, the next Avenue; Linden that he looked to the west and saw no street car nor in block; vehicles that that he looked and east saw none but looked north and saw several approaching automobiles him; that he slowly started across the street in low gear, again without looking to the west, and reaching the street car track had the speed reached of about five per miles hour and shifting was to gear second when he was struck by the work ear which he never saw until that moment. Plaintiff’s evidence further to tended show that the work ear running was 30 from hour; to 35 per miles that there were several men the front platform and other men íd the middle the car; of that the car did up not slow or slacken speed until after struck plaintiff’s automobile; that there nowas setting sound struck; warning of brakes before plaintiff was that no signal sounded; was 50 plaintiff’s that it carried automobile about collision; stopped point east of the car was of and that work plaintiff’s One collision. of point 100 to 150 feet from the of from 200 car it about was when he first saw the testified that witnesses coming time at that was Hanley plaintiff of Road and that feet west Plaintiff’s track. the ear 40 of 35 feet south street from to across the used the work cars he familiar with was expert witness testified equipped were some of them particular street car line and that on that He brakes. equipped with air were with hand others brakes and when stopped, be equipped with air brakes could testified those safety per 100 feet with traveling hour, miles within 35 miles traveling stopped if persons thereon, could be and the and brakes feet; equipped with hand per within 150 those hour hour, traveling per and 30 miles stopped be within feet when traveling per hour. stopped 35 miles could be within feet when $12,500. for new jury Upon for motion plaintiff found $3,500. This amount a remittitur trial, the court ordered of $9,000. judgment plaintiff favor of was entered in remitted assigns as Defendant judgment appealed. has From this defendant evidence, giving plaintiff’s overruling its demurrer to error in permitting plaintiff to show distance Instruction No. stopped. equipped with air brakes could be which a work car negligence charges Plaintiff his other abandoned all of negligence solely upon the issue submitted his ease contending that its Defendant, under humanitarian doctrine. says sustained, been should have demurrer to law, contributory negligence a matter guilty as proceeding while across the street. failing again look west negligence immaterial. Antecedent can- 'Whether or not this is true is *6 402
not be in determining liability considered the humanitarian under doctrine. peril “When such arises the situa the doctrine seizes in dangerous tion as it then exists requires operating and the one the strumentality ordinary make respects to exercise care in certain —to lookout, timely discovery duty if it on the was his to be the peril, injury, if and threatened he thereafter avoid the infliction the safety jeopardizing can with do so the means at hand and without the Ry. himself others.” v. Louis-San St. Francisco [Alexander Co., 1012, 1026; Fleming 327 (2d) Mo. 38 W. 1023 State S. l. c. ex rel. v. also, 322 Mo. Bland, 565, 572, (2d) 798, 801; l. c. 15 S. W. l. c. see, 8 Ry. 34, Vowels v. Missouri Co., (2d) 7; Pacific 320 S. W. Banks Mo. Vulgamott v. 302 Co., Morris & Mo. 257 ex 482; S. W. State rel. 254, v. 300 Trimble, 92, 1014; Eppenstein Mo. 253 S. W. v. Pacific Missouri Ry. 94 Co., 720, 197 Mo. W. S. 967.]”
Defendant further contends that evidence was not ease, plaintiff, sufficient to make a humanitarian proceeding because slowly ability stop with in car within a few not his was feet, danger very zone until he track was close to the and defendant says showing there was no evidence the work at that where car was time or it could have then the collision. As we said in avoided Ry. Homan Co., (No. 30118, April Term, 1932, v. Missouri Pacific yet Metropolitan Ry. Co., reported), quoting from v. Ellis Street Q. 234 138 657, Logan Mo. Co., S. W. v. B. & 300 C. Railroad 23, 611, Mo. 254 S. W. given regard 705: “If in that plain a case is so average, reasonably fair men it, minded cannot differ a about recovery may be ground denied as a matter of law. But there ’’ opinion it, question jury. fair difference of about then is for the Looking in light plaintiff, most favorable to reviewing as must in question, we was evidence this there from justified finding was work car was at defendant’s least 200 feet east of when 35 feet plaintiff, the intersection not over away track, away car, looking approaching from the from the proceeding street, increasing was speed, across with start after ing complete gained a stop from until at the track he had momentum “just enough argues plain to throw it in second.” Defendant danger tiff in the away was not zone when he was from the danger track. Where zone question was a commenced jury under the and circumstances facts of this case. was Defendant operating street, work car public approaching its a a much traveled expect it intersection, persons where had reason-to to be where duty required keep stop Its speed lookout. or slacken operator saw, such of its work commenced at time as the its car ordinary seen the exercise of care, have journey pursuing intent on on across track oblivious to the danger. v. Metropolitan Ry. Co., 234 Street [Ellis Mo. 138 S. W. 23; Maginnis v. Ry. Missouri Co., Pacific 667, 187 Mo. S. W. *7 1165; Ry. State rel. ex Wabash Trimble, Co. v. 260 1000; W. Logan S. Q. v. C. B. & 300 Railroad Co., Mo. 254 611, 705;W. S. Zumwalt v. C. & Ry. A. 266 Co., 717;W. S. (Mo. Larkin App.), v. Wells 278 W. S. 1087; Anderson v. 314 Davis, Mo. 284 515, 439; S. W. Smith St. v. Louis-San Ry Co., Francisco 321 107, Mo. 9 (2d) 939; S. W. Herrell v. St. Louis-San Ry. Co., Francisco 322 481; Mo. 18 551, (2d) S. W. Smith v. City Kansas Pub. Co., Serv. 328 Mo. 43 S. W. 979, (2d) 548.] Plaintiff’s evidence, .justifies in fact, the inference that this condition existed almost immediately after he started across the intersection and that the work ear was then more than away. a block Furthermore, we have not taken into duty consideration the plaintiff to warn if he was driving danger into zone too for late to stop defendant work its car. Herrell v. St. [See Louis-San Ry. Co., 551, 322 Francisco Mo. l. c. 562, (2d) S. W. l. 481, c We that hold the demurrer 485.] to evidence properly was overruled. np
We also hold that there in giving was error Instruc- tion No. 1. This instruction the upon submitted case the humani- tarian doctrine and principle defendant’s contention about it is that there was no evidence negligence which submit of to the issue under We already disposed the humanitarian rule. of this con- have As ruling question tention evidence. the the demurrer to the by jury when plaintiff, offered instruction told the defend- this seen, ordinary could saw, byor care have ant’s carmen the exercise of im- car, was in approach the of the street plaintiff, unconscious of ordinary care to use duty exercise it their “to peril minent became warning give a to or sound hand, any, if appliances the means and same, stop the railiuay' car, or to street approach the said the of slacken the to possible space time and shortest in the speed thereof, the rea- having regard for due injuring plaintiff, striking and avoid aboard persons and the railway car safety street of said sonable ’’ per- failure to negligent that the same; jury instructed were then out court struck plaintiff. duty justified verdict a form this that, warning; give so duty concerning the to words, the italicized plaintiff find only directed the instruction .to given, as ear or negligently stop slacken failed carmen the defendant’s in- justify fact evidence thereof, although was in speed there have or could plaintiff, peril was failure warn after cluding also warning they heard no eyewitnesses testified discovered, since all been 98 W. S. Co., 200 Mo. Chicago Ry. & Alton signal. v. [Stotler de- certainly not unfavorable to was, therefore, The instruction 509.] fendant. this instruction should contends that further
Defendant there whether the given have been ivas because no show brakes or plaintiff, equipped struck with air car, work into invited jury was, by instruction, hand brakes and that the conjecture to whether or not the guess work, field of surmise and as stopped speed in time to could have or its slackened ear been evi- shown, supra, plaintiff’s have averted the collision. As we have justified enough away, the car was far when finding dence ordinary operator care have seen its the exercise have position thereto, that it could been peril in a oblivious so traveling (the been with brakes stopped equipped it hand had to) 35 hour. speed per testified The evidence was maximum miles it struck 100 to after actually stopped within from certainly justified its plaintiff’s automobile. The inference sufficiently with speed been least efficient could have slackened brakes to have avoided collision. *8 objects in the of the
Defendant also to use instruction the “carmen,” arguing implied others, it besides the word attempting duty keeping a motorman, under the of lookout and were jury stop have been to car. We not think that the could the do they would under- by misled the use of this word believe duty of it was to applied employee stand it to defendant whose operate frequently plural car. instructions use the terms the Such operating car or “agents” and of “servants” defendants misleading. [Meng been to be language train has not and such held App. 84 S. W. Ry. Co., v. St. & 108 Mo. Louis Surburban 213.] given duty The of limited the to the instruction on behalf defendant charge in by “if the instructing motorman motorman ordinary see, car in care of said street did not the exercise any, plaintiff part peril, not seen the imminent if would have your time, . . . in . . . verdict must for the etc. be defend- in plural plaintiff’s ant.” We term instruc- hold the use of not, therefore, prejudicial tion error.
We also overrule contention that it was error defendant’s final expert for the court to allow show its witness dis stopped equipped with tance in which a work car could air be brakes. Plaintiff him therefore did not know what ear struck did only thing equipment of the work he could do—showed cars possible used ear in which on that street line and the distance it was stop equipped equipped both those with hand and those with brakes, complete air information brakes. Defendant had as to had, plaintiff, struck have what kind brakes it shown counsel, but in offered no evidence at all. Defendant’s the cross- car which plaintiff, picture examination exhibited a of work he plaintiff, was the one which struck but offer intimated did not objected and later counsel using it, in the exami nation of expert witness, upon ground that it had been by plaintiff identified as the work car that struck him. Since the uncontradicted evidence was that the work car actually was stopped in 150 feet or less, defendant could not have prejudiced been by the testimony that it possible stop it within that distance. This said, court in Ellis v. Metropolitan Ry. Street Co., supra (234 Mo. l. c. 685, 138 23) S. W. : “We have held that, when a car actually stops in a certain distance, there is no need of theorizing upon inability to stop in that distance. In such case expert an is functus officio.” judgment Ferguson affirmed. and Hyde, CG., concur.
PER CURI A M: The foregoingopinion by Hyde, C., is adopted as
opinion
of the court. All of
judges
concur.
S. Buckles
a l .
In