*1 With charges negligence against the number of appellants specific charges negligence against four defendant, Saner, complicated questions arising and the posterous thereof, pre reason it is say jury intelligently just arrive at a ver guide dict without instructions to them. court banc, This en case Dorman Railway v. East St. Louis 75 W. Company, S. 854, 1082, 335 Mo. indicated in such cases instructions should given clearly defining issues. the Dorman case the de gave
fendants submitted guide and the court instructions sufficient to jury. As we judgment understand the opinion, the for plaintiff would have been reversed and except remanded for the reason that instructions, given by court, defendant’s were sufficient. More Yerger point is the ease of v. Smith, 338 140, S. W. (2d) 66, 75, (12-13), l. c. question etc. where the was discussed at length, some and the court concluded as follows: “It is our conclusion clearly was not advised what necessary facts it was to find in against order find Smith and Clay, plaintiff’s and that theory submit the upon failure sought recovery against defendants was error.” That us, not before making but we are suggestion ought that in cases kind a to submit instructions to jury may intelligently the end that a arrive aat verdict. respondent On a retrial rulings should heed the in the cases Association, Phillips Crossno Terminal Railroad Dorman Railway Company,
v. East St. Louis Yerger v. Smith, supra, on questions points presented indicated. Other need not be dis- injuries they pertain cussed sustained and the of the verdict. amount judgment The is reversed the cause Cooley remanded.
Bohling, (7(7.,concur. foregoing opinion PER CURIAM:—The C., is Westhues, the.judges All adopted of the court. as the concur. Moving of Sirkin at the relation Needles & State of Missouri D. Hostetter Relator, v. Corporation, Jefferson Company, Appeals. Judges St. Louis Court et al., (2d) 50. Two, 1936. December
Division *2 Marsalek, Bearing William Moser, Marsalek & Moser <& 'Alien, relator. E. Alien for *3 Glcmcy & Flynn
John F. Mason respondents. *4 Crane, plaintiff, William as COOLEY, C. Certiorari. B. obtained judgment City against Sirkin in the Court of the of St. Louis Circuit Moving Company, corporation, relator, $3750 & this for Needles damage claimed, personal injuries due, automobile and original negligence in relator, truck driver of defendant Upon appeal Appeals Louis Court action. said defendant the St. judgment reported style Crane opinion affirmed an under pro- Moving By v. Sirkin & 911. Co., Needles this quashed judgment of ceeding opinion relator seeks being prior Appeals the Court in conflict with certain decisions appear facts sub- court. Prom respondents’ stantially as follows: injured automobile,
Crane was in a collision between Morris, driving, servant, driven Frank relator’s street, and Avenue, the intersection Garrison a north and south being street, Louis, an east west in St. each street Thomas thirty-three According testimony feet wide. driv- Crane’s he was ing Avenue, intending go on north in the east side of Garrison north, driving ap- and Morris east Thomas Street. As proached first east the intersection reduced looked Street, seeing way direction. Thomas was clear *5 buildings On account of certain he could not see to the west on Then, till Thomas Street neared south line of the intersection. eight when within six or feet of said line he the truck saw south 130 coming or 140 feet him, west of in the half eastward south Thomas speed Street. He of the truck. then estimate the
216 eight miles He then speed tо six or an hour. reduced his
He had own said, He I proceeded northward. “When accelerated again at the northwest corner of the intersection. saw the truck it was my traveling or a was to the center little At time automobile just coming up to past the center of Thomas Street. The was then the sidewalk line on the west side Garrison Avenue. was It my I running stepped brake and about or miles an hour. on I practically close on standstill came standstill. was miles, my by I I had was hit the. truck. accelerated I I saw the truck at applied an hour at the time the brake. When stepped corner of the intersection. ... I northwest thing happened pedal. on brake next the truck down The my my with After auto- came into collision automobile. the collision on corner intersection. The front mobile was the northeast of the on back it was toward the wheels were Garrison Avenue. The facing west, angle east and the front was the least bit on an facing to the south. The truck ivas east. It on the north side was Street). (Thomas any of the I street did not heаr horn sounded any swerving the truck at time. The truck was the north to the further happened.” side street before this He accident p. said day,, the accident occurred about two o’clock a clear m., dry; and that the streets were that when he applied brakes as he “passing was the middle of stopped Thomas Street” he half about length; a car that if he kept gas had “step- foot on the instead of ping on the brakes thought in the middle of the street” he would twenty have increased his miles an hour the time he crossing the street.” He “finished. further said:
“When the truck was feet my west of me automobile was the middle of traveling the street north and at about that I time stepped on the brake. From I saw the truck 130 to 140 feet west of me on Thomas I Street saw continuously. it almost I mean I watched it. I quick glance have taken a again, the east and then watched the coming. coming I saw it practically at all times from a distance away. got feet When I in the middle of I applied street the brakes hard I because saw the truck slowing not- down. Thе then, truck was 30 away feet from me but coming.” it was Other witnesses for testified, respondents' as stated in opin- ion, immediately after the collision the truck, which had or had been stopped by impact, standing, east, headed north of the center line of Thomas Street. One witness about eight feet from the north curb line Thomas Street. Two others- said, respectively, “slightly north of the center” and “a ’ ’ little north of the .center of Thomas Street.
Morris, who testified for moving company defendant at the *6 of acci- version the quite gave a different original suit, trial testimony, as set out in review of this purpose the For dent. He as he briefly said that may sketched. opinion, be respondents’ in driving Thomas was eastward he intersection approached the hour, per about fifteen miles curb, at eight the south feet from about ten his truck in about stopped have could at which he Crane’s being condition; did not see good he feet, his brakes at which twenty him, of within about feet until automobile ‘ ‘ middle of about the of his truck were the front wheels middle south the of north аnd street car track runs the about ten he had then to Avenue;” that reduced Harrison coming him a hour; toward at an that the automobile was miles hour, thirty-five forty judged per miles he to “around about go going something like down like that” and that “it turned right truck,” in front of the Thomas Street and then it cut around truck; the it “hit the front of the striking its left the side front.of ’’ side-swipe. truck with a discovered the auto- He he brakes, left,” approaching applied mobile “cut to the stopped “right a sudden.” of stating facts, respondents
After which we above, thе have outlined their said: “By given plaintiff an instruction instance of the court rule, submitted case to the under the humanitarian theory that the driver could have or. stopped the slackened its given speed, course, timely warning, or swerved its have so as to assigns avoided the collision. giving Defendant error ground instruction on the that’ there is no evidence that the truck been stopped, have or a given, in time to avoided have collision, after position came peril. into a of imminent urge Defendant’s argument aсcording learned counsel plaintiff’s accident, own version of the position did come into a peril of imminent until he applied the brakes and the auto mobile, and that thereafter it was impossible for defendant avoided the collision stopping either sounding the truck or a warn ing. this, however, we think proceeding upon counsel are a false premise. There is no that under law plaintiff right way entitled to the when he arrived at the intersection. The driver of the truck knew this. Plaintiff being right entitled to the way, it was natural that he way should right pro take the ceed across the intersection. The driver of truck knew this. So, too, plaintiff being right entitled to way, it was natural for him to assume driver of yield, would and not undertake to usurp, right way. The driver the truck knew this. Nevertheless, he undertook usurp way, at speed of from thirty sounding hour, an miles without he dis until unaware of any warning, so intersection, too late covered the at the northwest corner naturally discovery plaintiff Upon making this himself. extricate in However, avoid collision. stop: his automobile to undertook to *7 he intended taking right way appearances as of showed
stead of the reason, because probably do, truck, the the for some to driver of plaintiff instant at the right way plaintiff of yield decided to the to directly upon him, ran truck yield right way of the decided to the to some such known this automobile. He must have that the attempt reckless from his perilous confusion, of would result situation In view of way usurp was entitled. right plaintiff to of to the was, within the detailed, the- the circumstances we think injury of contemplation rule, imminent of the humanitarian the oncoming truck, from time he entered practically from the the course, charged be must, intersection, and the driver of the truck of knowledge with of creation. peril, of such since it was his own testimony of judicially know, particularly “We the view the of good driver of condition the truck were brakes traveling per could have at a of miles hour the truck fifteen feet, traveling stopped been in ten of thirty less it been in a much dis per miles hour could have tance than v. [Chawkley that avаilable shown the evidence. 24; 782, 20, l. 797, Wabash 317 l. c. 297 S. W. c. Co., Railroad Mo. Spoeneman (2d) Uhri, 821, 9, 60 S. W. l. c. Mo. 12.] “It true, suggest, as counsel was at all times con- truck, scious of of approach but the shows was evidence danger subjecting not it him. His conscious of to which was knowledge approach of the of truck did relieve the driver of not duty him peril, to warn of his of which he was oblivious. [Jordan Joseph (Mo.), v. St. Railway, Light, Heat & Power Co. S. W. (2d) 205, 208; Railways (Mo. l. c. Lavine App.), v. United Co. 576; Railways S. W. l. 574, (Mo. c. v. United Co. App.), Woodis 203 S. 489; King City Railways (Mo. App.), W. v. Kansas Co. 1129; (Mo.), (2d) S. W. Weber Hart v. 53 S. W. 914.]” (Respondents quote Railways here Woodis v. from United Company Railways Company, opinion.) Lavine United cited in the surrounding plaintiff “The circumstances in the instant case as attempting designed he was to cross peculiarly the intersection were impress security, him with a sense of him prevent and to from realizing danger threatening him. The fact that he entitled right way, away to the of him, distance that the truck was inability and his to determine the he en- intersection, tered the the fact was at that street, conspired the south side all him his safety. assure danger (cid:127)The natural result that he did realize until he swung driver o£ saw that the to the north the street side way. purpose usurp in the execution Can timely said as a matter of law that under circumstances a these him peril, would not have awakened as to have so contrary, him enabled to avoid the collision? "Wethink not. theOn timely warning we think there was room for a fair if inference that given had been he could and would have avoided the collision either accelerating by stoрping than automobile sooner he did or speed.” its
In proceedings of only this character we are with concerned Appeals between the conflict Court prior court, province decisions of this nor is it our determine whether or not the of Appeals application Court has erred in its rules of law to the facts stated in opinion. its State ex rel. [See Bakery 400, Hauck al., Co. v. Haid et and cases relator respondents, this case contends that cited.] judges Appeals, prior of the Cоurt of contravened decisions *8 major in respects, first, court two in their conclusion that Crane viz.— was in imminent within peril contemplation the of the Missouri “humanitarian” practically rule from the time he entered the inter second, section and, that there was a issue on the negligence failing signal truck driver’s in give warning after discovered, he or discovered, peril. considering, should have Crane’s In these kept contributory negligence contentions it be must in mind that injured here, the part party where, on is no defense theory solely negligence case is submitted under said “hu doctrine, primary negligence manitarian”' nor can or antecedent preceding arising negligence of the situation of defendant — peril imminent considered. —be in peril contends that Crane was imminent Relator not until in applied stopped pathway truck, his brakes and thus creating peril, holding that in and that he was in such peril practically respondents’ the time he entered the intersection citing: opinion court, conflicts with numerous Elkin decisions Co., 951, (2d) 600; 335 74 Ziegel v. St. Lоuis Pub. Serv. Mo. S. W. Co., v. & Ry. 1013, (2d) meier East St. Sub. 330 Mo. 51 S. Louis W. Ry. 1027; Co., Lamoreux v. L.-S. 337 87 1028, St. F. Mo. S. W. Ry. (2d) 640; Phillips 1068, 87 Co., v. St. L.-S. F. 337 Mo.
(2d) 1035; (2d) 1065; Phillips v. 326 Mo. 30 282, S. W. Roberts Co., v. Pav. & Mat. 335 70 S. 6, Consolidated Mo. W.
543; Lackey Rys. v. 288 Co., 120, 956; Mo. 231 W. United S. Pope Ry. Co., 790; Mo. 146 232, Guyer v. Wab. S. v. W. Mo. Pac. Co., 344, Railroad Mo. W. 584. S. Relator further contends truck, there was no in evidence as to the distance which the going thirty hour, an stopped miles could have been it and by front peril stopping thus created the
after
rule as
holding
under the humanitarian
relator 'liable
arose,
stop
after the
the truck driver
failure of
Schwandt,
Goodson
cases and also
several of the above
contravenes
Ry.
(Mo.),
F.
Co.
St. L.-S.
666,
795;W.
Beal v.
300 S.
Mo.
289 Mo.
Ry.
Reynolds,
F.
733;
rel. St. L.-S.
256 W.
State ex
S.
350,
Co., 186
Ry.
Mo.
219;
S.
Markowitz v. Met. St.
479, 233 W.
The court further that right since the motorman a to as plaintiff going upon sume that stop the would before the track he duty no was under to warning slacken or a sound until was it or should been him apparent plaintiff have to that the did not intend stop. to
It apparent that the Elkin case and type cases do not present factual similar situations to that in the instant ease. Of many says the which decisions with relator respondents’ con- bear the closest to us to supra, appears Phillips flicts plain- In case the us. case before its facts to the resemblance motorcycle his collision between injured in a was tiff, Phillips, east Avenue, an of Easton intersection truck at the defendant’s the Avenue, extending northward street, and Kienlen west west, north going in the city Phillips was Easton, in the Wellston. south half east in thereof Avenue, defendant the the half of Easton time. same they intersection about approached the as both left— turn intended to north —to defendant truck driver The prior to- signal gave no of such Kienlen Avenue but intention into party truck before either reached making Phillips the turn. saw the to turn know of defendant’s intention intersection but did not turn The defendant started to north across his line travel. to the intersection, at truck he was feet west of the plaintiff was east of the intersection and which time the ten feet showing intending stop. could no The defendant indications striking have to have avoided slackened so as plaintiff he, defendant, after started to turn. The court held give prior warning the defendant’s failure intention to might path, turn to his left across it been plaintiff’s while have primary or negligence, antecedent not into be taken account negligence rule, under the humanitarian not because the was until the truck turned. But the said that while the court give timely warning failure defendant’s intention of his to turn negligence under the humanitarian doctrine circum- tending why stance plaintiff might show have assumed truck would not turn therefore could cross the intersection safely. It was held that under the case, circumstances which more fully are opinion' in the detailed than attempted we have here, do there was case made for under humanitarian rule as stop failure of the give defendant to or slacken which have enabled to- himself save after the turned, creating thus pеril, the imminent and before' the collision. case, the instant unlike the situation presented in the Elkin cases,
case similar the truck driver had no to assume that stop crossing would before the south half of Thomas originally traveling, and where belonged. it Crane’s conduct and clearly movements indicated intention to proceed across intersection, which intention ap- must been parent to the truck nothing driver. There prevent seeing the automobile when got eight within six or feet the south side of the intersection proсeeded and as it then northward into inter- *10 section, with the purpose part obvious on the of its driver to continue across. It the truck duty driver’s to be on the lookout for cars Mayfield K. approaching Garrison on Avenue intersection — (2d) 116, 123-4-and S. Ry. Co., 79, 92, W.
C. Southern looking, if he saw have seen be held that what he could it must he (6-7). l. c. 1067 Mo. l. c. Phillips six see the truck he was within said when he first could Crane and had reduced of the intersection eight feet of the south line !or an The truck was then or eight to six miles hour. speed He speed. then its him. He could not estimate feet west of gradually accelerating speed. He northward, proceeded again when again he saw it after hav- he saw the that is when intersection, ing eight seen it when he was six or feet south of first just coming up intersection, the northwest corner of the Avenue, line west side of Garrison and about to the sidewalk on time, apparently, Then for he thirty him. first realized feet from thirty an he was then miles speed, which estimated its Assuming, purpose as must be for the of determin- hour. it assumed testimony submissibility ing question ease, Crane’s of of between first saw true, is it follows that the time he the truck n andthe time when he again at or saw it near the corner northwest of of the intersection the had swerved from the south side belonged, thereof, where to the north with (cid:127)Thomas side part its passing intention of driver of in front of Crane’s auto- something Why, there proximity mobile. unless the then of vehicles, existing the two the then rate of of the truck and the circumstances, pro- that caused the truck driver think that if he proper with ceeded undiminished on his side of Thomas Streеt south side—a collision was imminent? We think such —the inference may reasonably be drawn from act of the truck driver thus swerving and, course, determining to the north the street side submissibility, entitled the benefit may reasonably such favorable inferences as proved be from drawn danger Such nor, facts. was not removed apparently, diminished, increased, by perhaps rather the action of driver the truck in thus swerving continuing to the north and progress, eastward with purpose passing Crane, in front of proceeding who was north- ward acrоss intersection with the going obvious intent of on. argued if, It is stopping, gone instead of on, con- tinuing to accelerate as he had done crossing while the south (cid:127) intersection, half he passed would have the line of travel approaching safety. It may figured out mathe- matically possibly he have done so. But it must be thirty remembered that when the truck discovered feet him, coming showing fast and no indication stopping, he was con- emergency with fronted an instantly had to act hardly truck driver expect .the of him acсuracy absolute
228 peril in when he argued Crane was not It is judgment. also “almost in could have he the intersection entered because latter, we contentions, especially stantly.” Apropos of these (2d) 30 c. 292, S. W. l. 326 Mo. l. c. quote Phillips Henson, v. (10) 1069 : ap- in as peril was evidence tends to show
“The ap- as it became peril His arose as soon proached the intersection. to cross the intersection intended parent from his conduct 145, 293 W. Mo. Pappas, S. stopping. v. without 1235.] [Burke in was never connection, defendant contends this evidence he could position peril because his own showed that a reaching collision, motorcycle point stopped his before evidence discovered the truck had turned to the left. Such after he neg- contributory .contributory negligence, him convict but would ligence a humanitarian rule.” is not defense cause under the say respondents’ opinion in cannot
Under the facts as stated we any opinion any law or conclusion an- that said contravenes rule of hоlding nounced this court on a similar state facts in that Crane “practically in peril imminent from the time he entered the respondents intersection.” Neither can it be said that con holding prior travened our in decisions that under circumstances timely warning there room for a fair if been inference that given injury. Crane have avoided the collision and Relator says respondents’ opinion, holding that there was a submis question warn, sible issue prior on of failure to contravenes our Co., 572, decisions Pentecost v. Terminаl Mo. Railroad (2d) 533; Ry. S. W. Phillips Co., supra; v. St. L.-S. F. State ex (2d) rel. 521, 864; Weddle Mo. S. W. Womack Trimble, (2d) Mo. Pac. Co., Railroad 368. Relator’s contention is upon proposition founded that Crane was not peril applied stopped, contends, until he his brakes and as relator pathway in the then of the truck at about the middle or north warning middle of Thomas after which could was, became, have been then of no avail because Crane aware of perilous respondents situation. But held that could legitimately have that, shown, found thе circumstances Crane was peril “practically” imminent from the time he entered the inter section. We have said above that such conclusion does not contravene prior decisions this court on similar facts. On Crane, kept in it must be mind that when he first saw the truck 130' or 140 him, approaching feet from the intersection at a knowing did appreciate, which he not then that he had the evidently way believing safely that he proceed, intersection, accelerating obviously started across the his speed intending go on, all which must be held to have been apparent neg- be said that if it could Even truck driver. to the part any, if on negligence, going forward, such
ligent in thus Kessler Allen v. doctrine. humanitarian under [See defense no recognizes the Respondents’ W. (Mo.), 64 S. 630.]. by this has been announced relator and rule contended part (of says that, relator court —“obliviousness making aof necessary *12 party) is a element injured, says Crane that while warn,” but case as for humanitarian failure evi- “the approach of the at all timеs conscious danger was sub- to which was not conscious of dence shows he stated, must be held driver, have him.” The as we jecting pro- intention movements and obvious observed Crane’s have taken note of He should also have the intersection. ceed across ability check his stop speed, line travel own danger. impending apparent obliviousness and of Crane’s [Allen respondentsholding that under the evidence Kessler, In supra.] timely warning after the was room an inference that there say cannot thе collision we Crane to avoid arose enabled like opinion prior decisions of this court on that their contravenes Kessler, supra; Phillips or similar facts. Allen v. [See supra.] holding says respondents even if were correct in
Relator recovery warn, could be had as for failure to the instruction finding submitting require that issue erroneous for failure to is before of obliviousness. The instruction not us we cannot as Respondents properly that it did issue. sume submit the did not pass upon nor, apparently, they upon werе called They submitting so. do referred to the instruction as that issue (relator) assigned giving said that the defendant error for the ground instruction on the there was no evidence given in could have been have avoided the collision a position after came into peril. imminent On certiorari rulings only actually are made, expressly we concerned with either by necessary implication, Appeals. Court of ex rel. [State Met. (Mo.), Life Ins. Co. et al. 953, (2-3).] v. Daues opinion quashed. our writ of certiorari herein our should be It GO., is ordered. Bohling, so Westhues and concur. PER foregoing opinion by Cooley, CURIAM:—The adopted C.,
as the judges the court. All the concur.