*1 1187 scraped out with and on second her womb was strument occasion for either of put sleep not one an instrument and that “was transpired and did witness what procedures these and was well able any pain or ours.) no (Italics both-times.” She made mention vaginal If vaginal suffering probing or or wall. disturbance by McCauley, Dr. as described is of the thickness and texture wall evidence) to pain, it there is no is sensitive (regarding which forcing through instrument, it of a SO' seem that the blunt it would it, produced rupture have some sensation as to would any no m'ade mention such patient. have been noticed She feeling sensation, her womb had been dilated but stated gave.no testimony “scraped McCauley Dr. later out.” indicat- operation ing Opinion that in his an such that described de- produced the dying in her declaration have conditions ceased could opinion death, attempt in his nor did he he found which caused give opinion pregnant not deceased an as to whether or when any, upon her. operation, performed Verdicts of whatever guilty upon conjecture nor speculation upon be cannot based suspicion. mere dying
Appellant complains that declaration should not only objection in évidence. The made its been admitted ad have proper that no foundation had been laid for its mission was intro and that “it would be her conclusion.” We think a sufficient duction may portions be foundation was laid while nature of point Defendant not portions other were not. did out conclusions portions objected to as the trial court what conclusions. Her point as a whole. objection went to the declaration Moreover is sufficiently preserved in the motion for new trial to call for dis regarding complaints The same is true as to cussion. instructions. disposes appeal. have above If What we said additional evi trial produced be on another defendant should cannot be dis dence charged. judgment reversed and cause is remanded. West CG., Bohling, concur. imes and C.,
PEE CUEIAM: —The foregoing opinion Cooley, is adopted opinion of the court. All judges concur. as the Jr., Appellant. M. Howell, Esther Melenson v. Charles (2d)W. 555. One, July 7, 1939.
Division *2 Cooper, Rogers Neel & appellant. Sutherland and J. Frank *3 Guy DeMaria, Gowgill Popham & Schultz, Jasper
Victor J. Jr., Green, respondent. W.
HYDE, damages personal injuries. is an for for C. This action required a re- $25,000. Plaintiff had for trial court a verdict The $10,000, made, judgment mittitur of entered which was final $15,000. for judgment. appealed Defendant has from this Plaintiff makes the “that is in the same contention defendant position points on this as if record none of the raised mentioned ’’ (cid:127) that, in a although motion for new trial. The basis of claim is timely trial, defendant filed a motion for this went the first new judgment $25,000, that; when, remittitur, entered for after judgment $15,000, new was entered for no motion was thereafter- says filed. Plaintiff 2, 1936, “the motion for new trial filed March judgment’ existing, was directed to ‘the verdict and then and could judgment not have been to the final directed four some entered months The point afterwards.” same is made to motion in arrest as judgment. misconception This is a functions such mo tion. A prevent motion for trial new common law motion to judgment, any so it is judg directed to the verdict and not to ment. rel. Trimble, 916, ex Conant v. 311 Mo. 277 S. W. [State ] l. primary entry c. Its purpose prevent is to of a final 920. judgment, verdict, on the accomplish which would if sustained. practice immediately The usual judgment this State is to enter a However, judgment on a interlocutory such a remains verdict. filing
does not become final until entry for prevent motions to time judgment expired (Sec. 1005, has 1929) R. S. without such being filed, or, filed, they motions until are determined. [Cox Co., v. Schaab Stove & (2d) 700; Furniture S. W. Mfg. Stephens Co., Oberman 70 S. W. secondary function of a preserve motion for new is to mat trial exception appellate review, ters of purpose is accomplished, therein, to all such matters mentioned when the trial court over it, judgment, rules final judgment and enters or makes the final *5 already Herrmann, entered. v. 340 Mo. S. [Castorina Only (2d) necessary one motion for a new trial to accom 297.] fact, In purpose. either a second plish motion, filed more than four
1142 (cid:127)
days verdict, suggestion not "au- amounts to a and would any court thorize not. do it could do without-it. anything 916; State ex rel. Trimble, 128, 277 Conant v. 311 Mo. S. W. [State ex Sevier, rel. Union 98 Light Electric & Power Co. 980; City W. Co., Louis v. of St. Senter Comm. (from S. W. in case judgment There was no final this appeal taken) an remit- except one entered after could be the titur. Co., This Court en Bane in St. Louis v. Senter Commission supra, finally disposed in serve of the- idea that a motion arrest could any in the review. preservation any appellate function matter solely upon'negligence Plaintiff’s under Was submitted case plaintiff humanitarian rule. Defendant did not contends a-jury case, assigns overruling make as error the of his demurrer Therefore, to the evidence. hereinafter stated-are those the facts favorably which the evidence to show viewed most tended when plaintiff. injured junction of
Plaintiff was in an automobile collision at the Broadway, City, May 19, 1935, Valentine Road with Kansas on p. headlights car were between 7:30 and 8:00 m. drizzling at but on the time. There had been a rain the afternoon that time. Valentine ran west from streets were at Road wet Broadway beyond Broadway. There -was but did not east continue filling Broadway, facing junction, on side of this station have been built if it had -been located where Valentine Road would beyond Broadway. two street car tracks extended east were There Broadway. approached junction Plaintiff driv the center ing “a foot to (southbound) (right on the west track wheels south driving on the east rail) the west defendant was north east” of while Broadway rail”). track of the east was (northbound) (“astraddle seventy-two from was'36.4 feet. curb; feet curb to Valentine Road feet, eight from the west-rail It was fourteen and one-half inches rail northbound track. There track to the east of the southbound (east wide, Broadway feet marked across pedestrian were lanes eleven sidewalks, both points from where west), somewhat back that, Valentine, junction, so these reached the north and south safety zones, for seventy-three apart. were feet There lanes were commencing beyond pedestrian just these passengers, car street intersection) 'extending back (both lanes north and south twelve feet. fifty triangular with extension of feet; each a further junction at control both the signal lights traffic There were coming it from Valentine Road. Broadway traffic into and the traffic drug moving theatre store on the southwest picture was There cloudy evening of the collision was junction. corner of the On p. m. at 7:27 sunset evidence in a sedan. Plaintiff’s driving alone Ford Plaintiff per hour. miles junction at about approached was that gasoline get red. decided to She got As there *6 Broadway. . The north drive- filling the station on the east side of lane pedestrian way began jnst of the' north into this station south Plaintiff said:. driveway twenty feet wide. junction of the was Road, just I coming out of “There was no traffic Valentine ’’ n turn. a left-hand logical time to make presumed that it would be the lane; pedestrian the north pedestrians She said that there no on were hour) per miles three “practically- stopped” (slowed that to about she into turn) “pulled my signal” (arm signal for a left and “made “then, my complete turn” to of -the street” and started the center that when hour,” gear; at “not more than five miles an second safety entering “just the making the turn car was she was defendant’s by 125 to her to “from junction, south of the estimated be zone” began to make turn. 150 feet south” of was she the where she when (she “started sharp a rather turn “south and east” Plaintiff made lane) making big pedestrian and was- a turn” when the struck part the of her car had “almost automobile, when front defendant’s half of it be (“at the northbound track- least back would cleared” the having rails of the tracks”), the all of her cleared the west ear right the part left of defendant’s car collided with track. The front her plaintiff’s Plaintiff’s was that car -was front car. evidence at the time of collision. headed more east than south testimony employee an Plaintiff’s was corroborated own pulled up “I she to the filling said: noticed when station who lane, going very slowly put out her left pedestrian standing facing the hand, ... I was in the door out and down. waiting lady her. . : . The street in to wait on come lights traffic was color of the control for the north and southbound (defendant)- . . . He 100 feet or better from ear red. began turn). going twen- (when plaintiff . . . He was between ty-five thirty.” of an- She was also corroborated the-driver County), driving- (a deputy other car sheriff of who was Cass Broadway took her plaintiff, on the side of and who south same stopped “We before hospital collision. said: He changing. got lane, lights just were pedestrian to the we -very changing running . . . . . . to red. She was slow Just anywhere . five . . I . . from three to miles. saw car com- going light ing stopped north. ... I for the red from the south n (defendant) . up I there. . . He was on the south when drove Valentine, say safety I zone about where south is. side of Say feet, maybe (from eighty-five plain- . to 100 little more . . coming north, tiff). . . The car left-hand front corner hit . ’’ that, of the Ford. Defendant stated right front corner under time, existing he have stopped at the could his car in twen- conditions twenty-five twenty per hour; twenty-five ty miles feet at feet at thirty thirty per miles He per hour; and in feet hour. also said miles twenty per hour; speed speed was about miles that through the thirty hour;” proceeded was “around an that he miles junction green; the. traffic there was a because ways moving car both junction; ahead of him in traffic was of a line of through it; suddenly plaintiff’s car veered out feet north fifteen southbound traffic toward him when- about to the him; and that an swerve he made immediate effort *7 foot”) to avoid (right) (swerved exceed a but was unable “not to on the time. a collision. Defendant’s car turned at testimony plaintiff her “the of Defendant contends that and south eyewitnesses her. was two to the effect that automobile headed with east, south, impact, the is conflict more east than at the time of ’’ says physical facts cor physical the facts. that the Defendant that both his version of the roborate collision. These facts were auto collision; after the partly on the mobiles were northbound tracks car by damage all on (as pictures) the to car was shown defendant’s damage off; and the side; the left that its left wheel was sheared right all in front instead of on the How plaintiff’s to -car was side. right ever, damage plaintiff’s appear to to the the to car does be more part. that he did front than to the left front Defendant said right. hold, his to extent to the We on this swerve car some cannot record, plaintiff that the evidence of and her witnesses was unbeliev requires very positive It to -that able. clear hold corroborated case testimony v. impossibility. is of M. & O. untrue because [Parrent 1068; Co., 1201, (2d) Railroad 334 Mo. 70 S. Bloecher v. Duer W. beck, charged (2d) 338 Mo. 92 W. If is S. defendant with 681.] seeing they plaintiff’s saw, what at the time witnesses said and dis they by specified, plaintiff tances then facts related her the wit (considered jury nesses reasonable with inferences could draw a. plaintiff) therefrom most to favorable tend to show existence of the the constitutive elements of the humanitarian doctrine as stated and by Co., to this en v. Court Banc. Morris & Mo. adhered [Banks 254, 257 S. W. We think that there was substantial evidence 482.] jury case, for the to so As find. noted another left turn there is very appearance evident difference between the conduct and of a slowing making turn, ear and driver in down a left and that of , n one suddenly abruptly veering moving out a line of of traffic. Uhri, [Spoeneman S. It was for the 9.] say jury duty happened which here. The of defendant under the doctrine, by humanitarian plaintiff’s under the circumstances shown evidence, appearances was “act on at a reasonable time when (Mo.), action would be effective.” v. Kessler 64 S. W. [Allen 630; Ry. Co., Womack v. Mo. Pac. 88 W. (2d) plaintiff jury We hold that did make a case and that it was for the from, jury negligence. to determine whether or not defendant was free assigns giving Defendant also as error’the of main 1) (No. was, which as follows: instruction you jury “The that if find and believe from the Court instructs southwardly Broadway- driving plaintiff evidence that lane runs point pedestrian reached a at about the when she edge question,, east and near- the north of the intersection in west turning started her left and if Ford car to toward east you turning position was in a find that she started inescapable peril approach imminent and said LaSalle from you find; operated Howell, automobile defendant if so and that he highest' degree saw or the exercise of the of care have seen position you plaintiff facts, all the if and have known above facts, thereafter, high- so find them to be the time use degree safety est of care and means hand au- and with occupants stopped tomobile and its and others have same or speed thereby prevented slackened the thereof and' have said colli- plaintiff being so, sion and injured, 'if and that he failed to use highest degree thereby negligent, you of care so to do and was so find, and that as a result thereof said collision between said direct you plaintiff thereby injured, find, cars occurred and then so your damages against verdict on claim for defendant must be for plaintiff against Esther Melenson defendant Howell [and *8 though you the law and is true even should believe that the north and south and that not have were red she should turned said negligent getting and in place time and that she was herself into and being danger position (if was) in the aforesaid of on peril] said occasion.” says “erroneously
Defendant that this instruction informs the jury plaintiff position inescapable that the entered a of imminent and turning peril at the time she started her automobile to the east and duty act, left, places prior to her a on the defendant to to the plaintiff peril;” time was in and that it “fails to limit defendant’s duty act, plaintiff position peril a in to time after he saw a of gives jury roving duty a commission to determine when this susceptible think this arose.” We do not that instruction is of such upon Barker, relies construction. Defendant Smithers Mo. portion of this 1017, 111 S. W. 47. The italicized instruction by defendant) finding not a (which does authorize of a is criticized turning perile plaintiff (as started position of imminent while east, case), plaintiff turning only. or when started but the Smithers turning This not plaintiff started east. did extend zone of after peril by contrary, expressly requiring finding it a but, limited on beginning peril plaintiff imminent position a of started-to of after plaintiff effect, jury posi- was not in In it told the such turn. she started to turn. This instruction or even when did tion before ability ease) refer to the of defendant see (as in the Smithers not (when entering upon stops an intersection into and plaintiff entering) by plaintiff upon convey and after so as to both made duty the idea that defendant’s humanitarian under the rule com- finally plaintiff actually menced before start (after stops) did two path;. Instead, clearly cross defendant’s meant that defendant’s duty began ordinary when “he saw or exercise of care would position plaintiff have seen the of have all the known above facts” (previously hypothesized), (or he did see and them know should have) prevented “in stopping to have a collision time thereafter” slackening speed. says above reference Defendant position plaintiff” “position to “the would not mean of imminent inescapable peril” jury, but, since it combined with (hypothesized), “and known all of the above facts” we do see they how could fail to so it. understand Furthermore, case, plaintiff the Smithers had to cross .half (about feet) the street street (about and both car. tracks 18% 14% feet) safety and the (5% feet) width of the zone on the side other get order to path plaintiff into the of defendant’s car. Here was on one street car track on the and defendant other. It is obvious plaintiff position peril very did into a come of .imminent soon after turning path started east. Her in the defendant’s car car. in-, length Moreover, when she moved half its to the east. imminent, requiring finding struction went further than peril a required finding a inescapable peril, of imminent and which connotes danger a narrower zone. Assn., v. Term. Railroad [Perkins This awas .real last clear chance submis- 915.] sion, inescapable because peril peril means plaintiff which the helpless to avoid her own requires but which some action efforts of defendant to avert it. American Ins. Law Restate- [See Torts, ment of sec. “Inescapable” is not a technical word and jury surely meaning understand its applied to this situa- tion. In this situation, kind of a and, obliviousness is immaterial an driver, automobile has the time injuring and the means to avoid person peril, in such he it, knows or should know of it is his duty to do so. Banks v. & Co., supra, Morris which was that [See ] *9 kind of a It is obliviousness that" widens the zone of imminent case. peril. v. Barker, supra; City Lotta v. Kansas Pub. Serv. [Smithers Co., 743, 342 Mo. 117 W. (2d) S. Here obliviousness was not 296.] upon relied and failure to warn was not submitted. Pentecost [See v. Co., St. L. M. B. T. Railroad 66 S. W. 533.] Certainly, plaintiff’s if believed, evidence is there was' a time after - plaintiff turning started (moving slowly east when was) as she would have been-unable her own to-escape efforts path from the (moving of defendant’s car fast) five times as if it to move continued in the same speed. direction and at the same It jury was for the decide whether and, this evidence was true so, say if whether or not defendant knew or should have plaintiff’s known of position of inescapable peril enough, and imminent soon after it occurred to have injury her him, prevent available to time, had with the means meaning of slackening and this the speed, its stopping his ear or this instruction. No. 1 Instruction plaintiff’s that further contends
Defendant verdict authorizes a and Instruction G conflicts with defendant’s the sole cause negligence found to be though plaintiff’s even “tail” of against the so-called is made injury. This criticism upon in réliance made above) and is also (in the brackets instruction also (as was hypothesized G Barker, supra. Instruction Smithers v. version F) facts of defendant’s Instruction done defendant’s car) if believed his which swerving into (sudden plaintiff’s ear cause negligence was the sole finding plaintiff’s a that would authorize from very here was different injury. However, the situation of her an arterial was on there defendant that in the Smithers case because reasonably to have expect could he was entitled to and street where There defendant’s sole cause right way across the intersection. sign high speed came at across theory plaintiff stop ran a was that plain that instruction was path. his The “tail” on getting in negligent tiff recover even if was “drunk could he We could not peril.” into . . . imminent said we himself We, of that case. language the circumstances approve under in a humanitarian proper “We it to be however, also said: consider contributory negligence of negligence jury that ease to inform the only negligence plaintiff plaintiff is not a defense or that injury in does not defeat his recov- contributed to or concurred City Shain, ery.” Serv. also, ex rel. Kansas Pub. Co. [See, State City Pub. Serv. (2d) 1097; v. Kansas Crews not en- defendant was Co., 341 Mo. 111 S. W. Here A lights if were red. cause to be in the sole titled intersection theory lights justified that the were only be instruction could negligence defendant’s green (otherwise and south traffic for north cause) concurring and that was running light be a in a red theory. had a sole cause instruction Defendant defendant’s counterclaim, up instructed on it that he was en- but also set they damages plaintiff from if believed his version. to recover titled instruction,- authorizing a verdict in this hypothesized The facts damages, necessarily required against for defendant’s plaintiff they lights green before could find that the were jury to believe contributory (in defense to instrnetion Plaintiff had his favor. counterclaim) jury that defendant could not re- which told they approached “that as Howell believed defendant thereon cover question place at- said time and intersection entered the affecting north south bound traffic red lights traffic control contrary said intersection Howell entered and' defendant words, time, were red at the In other against same.” turning filling (as hypothesized into station plaintiff’s conduct *10 contributory plaintiff’s in -only instruction) main have been could negligence) collision, because-defendant not the sole cause-of contrary being negligent been in in the intersection have circumstances; to the light. -that, red these Our view this Under “tail” erroneous: plaintiff’s prejudicially did hot make instruction against Instruction No. coinplaint final Defendant’s jury Í de “erroneously permits is that it to consider refers to and fendant’s, light, alleged negligence running in a red traffic primary determining in rule.” We negligence humanitarian under the only plain think it is clear that it does not do so because it refers turning go filling station) tiff’s in (to conduct into the have-shown, light at defendant’s conduct. As color of we hotly the time principal was one of the most contested fact issues negli this case. Plaintiff did have an instruction on-defendant’s gence running light contributory negligence, a red as' which proper as a defense to defendant’s counterclaim. Because of negligence against issue of the primary red on defendant’s case plaintiff, proper jury we think it its to tell the what effect was upon plaintiff’s negligence against humanitarian case defendant. wording no plaintiff’s'instruction doubt could be im While proved contributory negli specifically that it state referred gence plaintiff, we hold that the whole submission made issues sufficiently prejudicial clear so as to be from error. free passion It is also contended that the verdict was the result of excessive, prejudice and is still after remittitur. Plaintiff sus injury tained a principal injury and ankle knee but Was to her nose and face. Plaintiff’s nose and bones cheek were fractured places. badly several disfigured, Her face remained after five severe painful plastic surgery operations,. permanently. so and will be X-ray following The injuries: examination showed the bone 1‘ five, fractures, least, are There distinct with considerable shat tering words, of those various five In other pretty fractures. it is general pulverized disruption much of a bone. ... A of the nose, structures around with a fracture on the left side . . . eye bridge inner side of the with bone on the of the nose that, displaced In addition to fracture, rather, inward. there is a — shattering upper portion of the bone of the bone, of this cheek right . . . which we call the antrum. theOn side was a there extending eye fracture line downward across the floor of the socket sinus, displacement and into this but she did not have the that the one septum partition normally on the left straight did. which runs up pretty nearly in the nose is completely and down mid-line dis placed. foot, foot, . .' . In the the heel bone of the there are two fragments pulled vein- minute bone been off have of the heel heel . . ligament bone—the front bone. . The is torn very fragment small loose and detaches bone.”
3,149 earning per week twenty-five years $13.50 Plaintiff was old and was and City, doing stenographic, at Harzf clerical eld’s store Kansas statistical work work. She had taken business administration at University buyer.” studying to become a She Kansas and “was gums said upper lip physicians were her numb one permanent injury. testified that nerve Her sense of was due gone. leaking “quite smell was also of the sinus was There ducts pain” a bit of still of her "nose and face. was caused the condition “My just just goes She also it wobbles; testified: knee out from me, just something under jelly as made of or rather than were My my bone. . . . heel doesn’t come flat on floor like down right naturally does, leg shorter, heel make one or ’’ other, slight one foot shorter than limp. and there is a She wore support an elastic for her knee and there medical was evidence slightly unstable,” her “left knee and that is was “there contrac- some ’’ eyes tion of the heel tendon. Her affected so that was reading. testimony to do There unable much was medical that “the pupil larger right;” left than permanent and that there was impairment. vision permanent There also medical evidence system. impairment o£ her nervous nothing
We in the passion find record we can hold shows prejudice jury. hotly on the The contested, case was directly conflicting facts, versions of but we do not think im- - properly experienced judge, so. The able presided who compel trial exercised discretion to reduction of the verdict in a very hold, We substantial amount. view the serious cannot. disabling permanently injuries permanent disfigurement facial young woman, remaining of this the amount ($15,000) is exces- sive. Rindskopf, (2d) 1085; O’Brien Mo. 70 S. W. [See (Mo. App.), Davis (2d) 882; Grab v. Const. Co. 109 S. W. Arnold v. May Dept. Stores, 748; Clark v. Atchison Bridge Co., & 62 S. W. Eastern C., Bradley, Dalton, C., judgment concurs; is affirmed. sitting. foregoing .opinion
PER Hyde, C., CURIAM: —The adopted opinion judges of the court. All concur.