*1 money. pay to compel plaintiff to harass intended that he take defendant announced There no evidence that jury. How- question to error to this appeal. an submit It find ever, evidence which the was substantial there appeal. error intended, take an The necessary, if to that defendant jury. prejudicial. It confused the was not could not have misled ruling assignments "We of error on ruled other instruction demurrer to the evidence. III. that the court erred admit Defendant contends ting tending mental financial con physical, to show the negotiations signing during and at time dition of agreement. may physical, mental financial condi be inferred that the It injunction prior normal to the institution of the tion competent Clearly was to show the effect said suit suit. mind, property If the health and interests. suit did plain proper permit no duress. It was to her, could be
affect there filing testify conditions after the tiff and others negotiations same. Fur during with reference suit and testimony thermore, proper tending 'it admit show successfully reason to believe that defendant could not might appeal ruling maintain the suit from adverse and that -negotiations questions a part the trial These court. arose as and tended to account some measures condition 250; Crane, O’Neil v. 67 Mo. mind and health. cites City 275, 94 Mo. Arnot, St. W. v. Louis Gordon Burris, They 43 S. 642. are application. 141 Mo. W. without against McCoy judgment Company defendants Land Frank, affirmed. so J., should be It is ordered. P. Wm. C. Scarritt sitting. Hays, J., concur; Douglas, J., Charles W. Barker, Appellant. T. Smithers v. John (2d) 47. One,
Division December 1937. *2 Morrison, Nugent, Wylder Berger Byers <& ap- and Chas. C. pellant. *3 William, Shapiro
Julius C. respondent; Robert H. Miller for Goodman of counsel.
HYDE, injuries damages personal C. This is an action for *4 Judgment sustained an automobile collision. for $5000. appealed to City Appeals the Kansas Court of judgment. Upon judges the affirmed dissent one of the thereof, the case has been provi- certified here accordance with the sions of Section Amendment of 1884 to VI Article Consti- our (2d) 121, tution. opinions.] for these [See charges alleged Plaintiff primary negligence of defendant’s failure to warn, keep failure to control, his automobile under reasonable negligence rule; speed, excessive under humanitarian but negligence assigns was submitted. Defendant error in overruling his demurrer to the evidence at the close offered shortly July of the case. midnight The collision took after 29, 1933, street) Broadway (a intersection of north south (an street) City. and Twentieth Street and west east in Kansas Considering plaintiff’s contentions, most favorable to could found facts to have be as hereinafter Plaintiff stated. (with drove friend automobile) Mr. his his Sheldon on west
1021 Broadway. Twentieth Street There two street until came were designated through Broadway car on it an arterial or tracks and was stopped Broadway street. He before front of his entering with the end building line, car at the stop sign, a little west of near located edge (east) inside defend- of the that he then saw sidewalk. He said car, north, south, about a block and saw another coming ant’s to ear,.,about “edged out south, coming half block then north. He (Broadway) eight into the street” “six or feet” about again. traveling The tracks car was “about on the car northbound . . . kind of of one He for it straddle of the car tracks.” waited pass again. stops (Both and thereafter look did not south his complete stops.) again He were north defend- looked saw approaching safety car ant’s “above the zone there.” He said there;” might 175 up he “would it was feet estimate it feet;” been coming way that it was “hard to estimate a ear night, but I say making 26 miles an it was over hour;” he “assumed” go across “had time safety.” with speed “noticeably” He said its was not over increased the first time saw He up gear, it. started in low to inter- shifted mediate, and eight increased his to about or ten per miles hour before he point together, reached the where the cars came which he after he “was over the street car'tracks” from six to ten (southbound) feet west of the west rail of west ear street track. He said front end of was about “even curb, the line of the the west curb” Broadway. on the side of west He said “astraddle” the west rail of the south- track Broadway bound when he started aeross after his second- but safety that it west of the west line of (west zone track)' southbound at the time of collision.
Plaintiff further testified: “Q. you change And him course, didn’t see yourself? IA. Q. you Were did not. those questions, asked you give and did those ? A. I answers believe I answered there I could not watch him always my my and drive own car. ... I busy driving car, and looking Q. say you ahead. You saw the Barker ear when was you, 150 or 200 feet you north and the next time saw it it was Q. right you. Then, you A. Yes. didn’t watch the Barker car traveling a while it was distance it, feet? A. I glanced at Q. question it. was, noticed you saw it about was, feet or feet—whatever it north you, after the northbound you passed, any car didn’t watch it more just until it was within ' *5 you, you a few feet of didn’t any see it more? A. I think I don’t did.” Plaintiff also said: “At ten miles hour, an gear, second my feet, I stop can car three or four half feet.” agreed plat
An showed that Twentieth Street from curb to curb Broadway, wide; and thirty-seven feet approximately
is street safety fifty-two feet wide. approximately Twentieth Street is north sixty-five feet Broadway zone on extended the west of side safety The west line from the north line street. of Twentieth south- of the the west rail zone buttons five one-half feet from is west to the tracks; buttons bound ear from the line of.these The distance one-tenth feet. Broadway, curb line of thirteen is curb to the west .from the west car tracks rail of the southbound from tracks Broadway eighteen car six-tenths feet. The street width track, the outside standard rail of northbound is the from grade was eight fourteen feet and inches. The on both streets per four five cent. and one-half to starts, place testimony distances, stops, speed,-
Plaintiff’s more definite He was even by was Sheldon. collision corroborated sign car the northbound saying'that stop stop at the plaintiff, than intersec- neighborhood of 100 to 125 feet south of the “in the was hour;” traveling “forty forty-five miles an tion;” it was that intersection. then 300 feet north of the defendant’s ear was and that eight “six feet stop or He that second said Broadway; “he to let that curb line” east by;” that, up from go when he (northbound) car started crossing.” He was “150 north of the car feet collision, was just it before the when he saw defendant’s that Broadway; that was of the west curb of it only about six feet east on away; car ran fifteen feet twelve to thirty-five thirty (south Street about feet across Twentieth Street) collision. after the line of Twentieth before it south right (west) fender Sheldon both that the front Plaintiff and testified right (north) rear fender of defendant’s car struck the running Both “brake joined the board. heard car about where it pavement” from squealing rubber on the ac- noise” “the just before collision. tion of defendant’s brakes deposition in portions of defendant’s Plaintiff offered twenty-five driving twenty or “about said that he miles Street, “going my down Twentieth foot hour;’.’ that towards hill;” he “was easing . the car down the . . on the brake miles;” easing my twenty down street not exceed class;” day “stopped that he that ear that his brakes were “first down, speed feet;” driving that at the within three or four it;” time “did do and at at that time he there stop the car “within three or four feet.” have and did” he “could (corroborated driving trial Mr. Miller at the version Defendant’s him) “substantially down the hill that as started behind twenty hour; miles an was around car tracks” his the street safety south got to the end buttons of the when he about *6 1023 plaintiff’s Broadway, of Twentieth and corner northwest at the zone building past of the the corner appeared coming suddenly car a traveling intersection, the corner of the northeast located plain- when saw hour; that forty he fifty from to miles speed of brake, emergency his he'grabbed “flashing into street” ear the tiff’s to out, and tried brake, threw his clutch on his foot pushed harder contact; that avoid a direct right, west, or to his car to the swerve succeeded slightly to west and his car swerving he succeeded stopped car, plain- completely; just his stopping fender; car turned plaintiff’s his tiff’s car left front struck southwest with the came rest about even sidewalk at over Broadway; defendant’s car Twentieth corner of or five feet brought complete stop, about four to a front end its standing Street, with its wheels of the north line of Twentieth south on the street rails. contention the demurrer to evidence
Defendant’s
on
plaintiff
showing
defendant,
“made no
whatever that the
after
being
entering
knowing
able
know that the
or in
peril,
stopped
have
position
a
his car or swerved the same
could
collision;”
a
arising
in time to avoid
that “the
inferences
produced by
the evidence
that the
effect
going
have
at such
rate of
that he
collision;”
“plaintiff
avoided
and that
no
offered
evidence as to
the distance
car,
within which the defendant could have
his
other than the
statement,
deposition,
defendant’s own
his
actually stopped
effect that he
within
or four feet from the
three
north line of Twentieth Street and was
aat
standstill when the
struck
him.”
says
cannot
his
testimony
aid
case
defendant’s
that he “could have and did”
stop his ear at
that time and
within three or
four feet
put
brakes,
because
evidence as to speed of de
fendant’s car
evidence,
contradicted defendant’s
plain
and because
tiff’s witness Sheldon contradicted
stop.
Elkin v. St. Louis
[Citing
Co.,
Public
335
Serv.
Mo.
74
(2d) 600;
S. W.
Pentecost
L.
v. St. M.
Co.,
B. T.
Mo.
Railroad
572, 66
(2d) 533;
W.
State ex rel. Weddle v.
Trimble, 331 Mo.
(2d)
52 S.
864;
Dilallo v. Lynch,
fit o£ facts favorable con is not do not contradict which own statements v. St. theory of case. tradictory to .his the fundamental [Elkin *7 Wheelock, 333 supra; Young v. Mo. Co., Public Serv. Louis “could Certainly testimony that defendant (2d) 64.S. 950.] or four stopped” car within three feet did conflict his recovery. say de Plaintiff himself that theory of did not plaintiff’s collision; and point all near the of car did not at or fendant’s damage very was to defendant’s car showed that the evidence impact. than slight, indicating glancing rather direct contradictory Certainly no to the directly there was evidence as any car. evidence was more than of' defendant’s None of the speed estimates. Defendant’s lowest estimate was between approximate defendant, twenty per Miller, driving hour. behind and miles fifteen driving own car “around miles an hour.” Sheldon he was said going how he did not know fast defendant’s car the time said was at stop; “coming straight you that plaintiff’s at'you, second speed;” judge 'that he an hour” When not'tell 25'miles away; feet it was twelve or fifteen this was estimate right.” said, Plaintiff as to was “about speed, defendant’s at time he made second that was estimate a “hard to night coming way say in the I making but would not it was over hour, something Although miles an that.” like we consider peril a zone in (because that there was narrow this plaintiff case rapid approach car), near and knew neverthe defendant’s an less automobile can speed since be swerved its slackened in less space- completely (Steger than it can be (Mo.), v. Meehan (2d) 109), 63. W. we hold facts, version of the aided-by ability statement of his to stop stop and actual ping travel, at such as to make a jury sufficient negligence. We, case of therefore, hold humanitarian that'there was overruling no error in defendant’s demurrer to the evidence. assigns error Instruction 1,' No. authorizing a on verdict humanitarian negligence, on ground jury plaintiff that it informed the position entered a peril the time entered the intersection. discussing Before .this instruc n by tion we plaintiff, note that brief, additional cites Perkins Assn., 340 Mo. Terminal Railroad S. W. 915, as au ' language thority for the' used in this instruction. However, the case applicable, Perkins entirely is not here because an different fact situation involved. In the was case Perkins this (en court bane) unanimously ruling concurred the plaintiff therein made a negligence case, peril based while approaching a (cid:127) train, an oncoming railroad track which said oblivious night running did not see which his showed was lights. disagreement without to whether case obliyioúsness specific finding a plain- element essential (Such specif- a authorizing finding tiff’s instruction verdict. a ically required plaintiff by a- as essential to verdict for instructions.) The Perkins case authorize a misstatement does position peril begins, a as where imminent under the facts of case; charge against that is the made this instruction. Plaintiff’s Instruction herein, if No. authorized- verdict negligence, found as direct result in- jured, etc.) from the following (leaving so,” facts out “if hypothe- instructión, sized to-wit: you “If (on believe the .evidence that- stated),
. find date driving operating auto- while. his Chevrolet upon at, mobile (of designated), the intersection streets across place, plaintiff and that at time a position was in of imminent danger *8 peril being of and struck by colliding or the Cadillac by automobile, driven defendant, Barker, John T. plaintiff and that thereof, oblivious or unable to extricate therefrom, was was himself you and if further from find the evidence that said T. John defendant Barker, highest saw or by degree the. exercise of the care, of could automobile, have seen plaintiff the which driving, (cid:127)entering into, was jupón intersection, crossing position said a and in of'imminent an<d peril, said’ time place, thereafter, and in time by the .at exercise of highest degree the part the defendant, of said care John-T. Barker, with the appliances -means hand, and' at with safety and to himself, and said Cadillac automobile, he have stopped could- said automobile, Cadillac or speed thereof, have slackened the and failed’ do, by so to and that either stopping speed same or slackening the thereof, the defendant 'could have striking 'averted or the avoided together of automobiles, said injuries, any, said collision and if plaintiff.” (Italics to ours.) parentheses and' We consider this to instruction be misleading and be- erroneous by cause, ignoring*,plaintiff’s own evidence of stop in the inter- section, (by thereof) portions italicized reasonably it could be place a duty to upon (and construed to act defendant to-say that- could, negligence) failure so act was plaintiff before possibly have any peril been in whatever from defendant’s car. plaintiff’s Under evidence, own he any position not in was peril (even from the car northbound which then closer to him than defendant’s by at least the width of car tracks) the street “entering when was “upon” into” intersection, said entéring because after into and upon said intersection he was still in a in which could stop complete safety did from all traffic. The misleading applied plaintiff’s language used, as of the character erroneous you “If wording, thus: by rearranging its herein, shown by exercise ... the evidence find from further have . . . could degree . . . defendant
highest of care . . . speed have slackened thereof automobile, or said Cadillac thereof, slackening or stopping same by either together striking have or could averted avoided defendant said by the exercise of the sew automobiles” “defendant plamtiff degree automobile, care have seen highest could upon intersection entering into, crossing driving, said anywhere, saying if was in This effect course, intersection, Of position peril. of imminent in this inwas together striking of said auto- could have “avoided the ’’ car, giving plain- stopping slackening speed of mobiles right way street, waiting tiff the across this arterial whole further, saw or proceeding him to before the instant he cross “entering seen ear into” said Never- intersection. theless, his failure do so then could not humanitarian make against negligence position case him because in a not any peril (“edged slowly when it was out plaintiff’s evidence) into the street” according “entering into” “upon” duty the intersection. Defendant’s humanitarian did sight car, moving not commence his first if it said did. Moreover, plaintiff’s evidence, duty under under the immediately, rule did even commence plain- when tiff, (first again after his second intersection), started “crossing appearance intersection” because the reasonable the situation immediately peril show him to the actual facts showed not. he was *9 (Reasonable First: appearances) Assuming to see defendant everything doing did, he he he what would have seen Plaintiff, was this: stopping edge after at intersection, the slowly drove out into eight the intersection six or feet stopped again, reaching before path traffic, northbound to let a north- pass; again bound then he gear started lowin from complete stop. highest speed At the he attained he could stop in three or four Evidently feet. he could have within space less before he second, shifted to and he twenty was least feet from defendant’s path when he started the second time. Certainly from the reason- appearances able of these movements, it would be for reasonable to assume that plaintiff carefully observing traffic, complete his had control, under again to stop intended before he the path reached Certainly southbound traffic. duty arise until, from nearer approach in-
1027 it made of the situation creasing appearances speed, the reasonable way all across continue apparent plaintiff intended to that1 Co., Railroad v. Missouri Pacific path. into defendant’s [Womack (2d) Louis Public Service 368; Elkin v. St. 1160, Mo. (2d) (Mo.), 64 S. W. Co., supra; Allen v. Kessler 630.] (ob-. (Actual facts) Plaintiff oblivious was not Second: an alternative liviousness should not have been submitted he he knew defendant’s car peril) said that element of because fully approach. When he observed approaching, had twice its rapidly again approaching, he knew path, toward its it was started intersection distance between the because it had then covered half the within ability it. With to ear and where first observed his twenty-five feet, ac twenty feet, three or four to traveled cording theory, got path. into Cer own before he his tainly say, merely timing no man because should heard to his bad, approach that he was oblivious of an automobile or danger therewith, of a a block collision when had first seen it away, again distance, observed there it thereafter half that rapid approach; stopped (when fore near knew its and had he first another car) observed defendant’s for car which was Conceding half a block from him path. when he started towards its know that go did not defendant’s car would to the west of change safety zone, place this direction took danger from his so no zone ex started second starting place. tended to This a ease the driver is not like where instrumentality saw the vehicle or know that struck him but did not (Larey v. moving Co., it was M. K. T. & Railroad Mo. (2d) 681; Assn., Schneider v. Terminal Mo. Railroad (2d) 787; suddenly oncoming S. W. or where vehicle in speed. M., supra;
creased' T. Pence Co., its K. & Railroad [Larey City (2d) Co., 332 Mo. 59 S. W. Laundry v. Kansas Service (97 agree Appeals 124) l. We with the Court S. W. c. 633.] though respondent’s that “the case tried as obliviousness case,” instruction the ex element in the but this authorized anything except peril tension of the zone of further than oblivious ness it. could extend
Certainly knowing on- person approach when of the near of an (with goes coming deliberately ability stop) path, vehicle into its definitely attempt right way either Or in an or “to take the acting responsibility across” or otherwise all beat it avoiding upon operator vehicle, contact of such zone of very duty operator narrow peril is and the of such to act does not actually path person eommenee until such its or so close *10 (at apparent moving) is the rate of he that it manner is reaching he not before it. F. that will v. St. L.-S. [Lamoreux 1028 (2d) 640; v. St. J. Co., 1028, Mo. 87 S. Wallace
Railroad 337 W. 1011; Stanton v. Ry., Co., 282, (2d) 336 77 S. W. L. H. & P. Mo. Wells, 324 631, (2d) 648; McGowan v. Jones, 332 Mo. 59 W. S. Co., v. T. & F. Railroad 652, (2d) 633; Mo. 24 S. Sullivan A. 945; Wabash Co. 996, Mo. 297 ex rel. Railroad S. W. State a person, 246, is because Bland, Mo. 281 S. W. This v. 690.] position a ability in who is is not not oblivious and has any when he is (certainly peril) imminent peril of whatever not a and he merely moving path moving vehicle, does toward the position he di peril come therefrom until is into a of imminent he rectly or cannot in so thereto that path such vehicle close Co., supra; path. St. F. Railroad of its v. L.-S. stop short [Lamoreux Ziegelmeier Co., supra; v. v. E. St. Elkin St. Louis Service Public 1027; 1013, (2d) Cavey Co., L. & S. Railroad 330 Mo. S. W. Ry., 438; (or Co., (2d) v. J. H. 55 S. W. St. L. & P. Mo. path ability get it, if Clark even he time to out is its (2d) Co., v. A. T. S. F. 319 Mo. S. W. The & Railroad 954.] only make, plaintiff a case under the kind of humanitarian position stated, actual one that in which facts began peril duty came into imminent arose after and defendant’s path of near thereto then unable or so that keep going We, therefore, -from pre into it it. hold that was judicial error a position peril duty upon a submit everywhere to act times was “enter at all after ing into, upon crossing said intersection.” complaint to the paragraph makes final upon instruction, authorizing this which verdict for plaintiff finding facts, out, set follows: hereinabove continued as you
“And, are instructed, so, further though you this even should evidence, believe from the find exercise due safety, was, care his own not, or there drunk negligent, getting himself into position the aforesaid of im- any, peril, minent if place.” said time and proper We consider to be in a negligence case jury inform the contributory negligence is not de- negligence fense contributed con- injury recovery. in his curred does not defeat his Lynch, [Dilallo However, 340 Mo. we approve cannot 7.] language of this instruction in this because, case under defendant’s evidence, been would warranted finding plain- negligence tiff’s was the sole injury. cause of his Accepting the facts show, evidence would it would be difficult to con- of a ceive clearer sole case. cause language broad above out set be a proper in conflict ivith sole cause instruction. Since this retried, ease we must hold defendant on his evidence was en- *11 a sole one instruction; titled to cause we do tlie approve but requested, hypothesize by shown facts negligence have been and submitted which would concurring require- cause of the facts. The under version recently of a proper ments instruction have been restated sole cause Meyers, this court McGrath v. 341 Mo. de- herewith, Lynch, supra. concurrently cided Dilallo v. and in judgment Ferguson is reversed and the cause remanded. Bradley, CC., concur. adopted opinion by Hyde, C.,
PER foregoing CURIAM: The opinion judges the court. All concur. Tootle-Lacy Executor and Trustee of the Estate Bank, National Rollier, Edward W. al., Edward Franklin Rollier et
Mary Appellant. E. 12. Schelhamer, One,
Division December 1937.