*1 City оf Corp., 961, Trenton v. Missouri 351 Mo. Public Service (2d) S. W. That is situation here. 871.] Furthermore, question question presented purely herein is a rule, meaning of law on the of income in income tax law. The our situation, Institute, this Law stated American is as follows: question actually “Where a judgment of law essential to the is liti- gated personal judgment, and determined final valid and parties subsequent determination between in a is-not conclusive action on action, except a different both of ac- cause of where causes subject transaction; any tion arose out of the same matter or and in injustice it is if event not conclusive would result.” [Restatement of Judgments, p. applicable sec. 70, particularly This rule is 318.] questions. to tax The Judgments, pp. Restatement of [See 324-325.] year tax for each a separate transaction and each distinct prior action for collection is different cause of action from those оf years. give advantage others, taxpayer would one an unfair over through inefficiency neglect unjustly discriminatory, and be if officers, question collecting appeal an erroneous decision on law, it all time from should be held that he would be relieved for paying pay. We, taxes all others therefore, must hold judgment judicata proceeding the 1940 tax abatement res is not question herein presented. of law * judgment All is affirmed. concur. Clyde Express Comрany, Corporation, and v. Plaza (2d) 39377. 190 S. W. 254.
Collier, Appellants. No. One, Division November Baynes Langdon B. appellants. F. B. Jones for *2 McHaney Ward & Beeves respondent. and Hal H. *4 damages for $10,000 OSDOL,
VAN C. Action to recover a verdict for jury plaintiff’s the death returned husband. The trial. for a new motion defendants, but the trial court sustained a appealed. Defendants have killed in Teague, was
Respondent-plaintiff’s husband, H. M- riding which was sedan, in which he was collision of Chevrolet truck (and daughter, semi-trailer plaintiff’s) driven and a by defendant Express Company and driven owned defendant Plaza cases other have reviewed appellate Collier. courts Heretofore W. App., Mo. S. arising Teague, v. tragedy. See White out White 288; and 517; Teague, Sup., Mo. 182 S. W. 2d 2d White v. 188 W. Express Co., App., v. Plaza Mo. 2d 847. S. upon negligence jury Plaintiff’s case submitted warning, or to failing under the rule in to sound stop speed slacken of the truck. “because motion for a new trial trial court The sustained emergency concerning sudden No. 7 D giving
errоr of instruction any action of supported for the is not the evidence same ' predicated upon driver it.” (1) sus- assign trial court in. Appellants-.defendants errors of the they the case involved taining for new assert the motion trial — entitled to submit “emergency doctrine” and defendants in Instruc- theory incorporated jury-the sudden overruling D; (2) defendants’ demurrers tion Number assignment. will attend the latter evidence. first We p. 1941,' 7:30 September 20, about The collision occured on M., Cоunty) Route (Pemiscot and U. S. Route U the intersection of S. Route highway an and intersects U. No. 61. Route U is east-west across, roadway A right angle. curved1 concrete No. 61 aat A highways. angle connects two intersection also southeast right, as filling are on the house, a and some trees situate station away Route No. 61. S. roadway curves U. the curved riding) had (in husband was Teague automobile north- defendants’ truck westwardly U, on Route driven *5 day, though had a it been clear on Route No. It had wardly U. S. by, roadways dry; scene is surrounded and dark; the were the become Teague automo- displayed lights. The Both vehicles terrain. level was fifty per hour at a of about miles speed bile had moved 587 front truck, striking a little in the of defendants’ it side driven into Teague had automobile speed The of center of the trailer. the of the did not notice prior collision; the driver not been slackened to the 61 and did not see signs warning approaсh of to S. Route No. an U. northwardly driven Defendants’ truck had been defendants’ truck. thirty-five miles speed about 61 at a rate of U. S. Route No. on. Teague the driver, had observed per hour. The defendant ‘‘ ‘‘ ” away. The a or so approaching when it was mile car from the east not observing up the road was I after them next time observed them I filling where could I station got past the- house and trees until say from the inter- up I I was 200 feet see the road. would about thought I the I сouldn’t tell how far up section when I looked there. would intersection. It approaching car from the was from the east ” guess a- . . . He had
just estimate. 300 feet. Just be an About coming by from the Thompson seen another automobile driven one intersection Thompson stopped west of west on Route car the U. yet a when the truck was truck passage ’,
to of defendants await the As defendant 400 500 south of the intersection. yards or distance Teague Thomp- to observe the approached, Collier he continued There was evidence cars, "I from to the other.” son looked one the north- drove truck tending defendant Collier that, to show as intersection, he wardly point feet south and reached a point 360 feet east along Route had an unobstructed view U to familiar and was experienced driver, truck intersection. He was an surroundings. He did physical with intersection and prior to warning any brakes аt time apply he sound nor did testimony his further reaching It was the intersection. length. equipped with two 38 feet in was
trailer-truck was about foot. The hand brake and one brakes, operated hand one tractor; trailer, the foot brake operated arrest to stopped safely slackened or equipment would be more speed of just a fraction ahead” of the trailer'" hand brake to (cid:127)applying the take a "second the tractor. It would brake to of the foot application warning,” operate flashed "my time mind so,” from t hold.” After the brakes took to "take for the brakes the brakes thirty-five moving per when miles required, hold, 70 80 feet testimony was that a stop. There equipment hour, bring moving Teague "automobile, at the rate <if sedan, such as the Chevrolet (or 189) at a of 175 stopped be distance per hour, could fifty miles feet. Teague approach- automobile stated, saw the Collier, as Defendant intersection; and, from the mile or more was a when Route U ing on from the intersection, feet point to a he came as stated, eastwardly along point U to 360 feet Route again seen have could that, however, when apparent, the truck It is intersection. intersection, (mov- feet south
588 fifty hour) progressed at feet
ing per point miles had not to a 360 414 intersection, yet from the but was about feet to east- Collier, approached the inter- ward—so defendant as he nearer to section, Teague came automobile point to a where he could have seen the feet, is, it than 4.9 from when was more than 360 that more seconds the intersection. position is the that was defendants-appellants
It
of
there
no
duty of defendants to act.
rule
under
“unless
existence”;
until a
of
peril
that,
situation
comes into
until
Teague automobile
within which
not be
reached
distance
it could
stopped
intersection,
shоrt of the
defendant
was entitled
Collier
to
stopped
that the
assume
automobile
before it reached the
would
And,
urged,
tending
intersection.
it
testimony
since there was
to
stopped
that
show
the automobile could have been
at a distance of 175
feet,
duty
the defendant Collier had no
to act until
the automobile
point
to a
intersection,
175 feet from the
at
came
and continued on
’
which
speed,
unretarded
at
was but 2.38
time,defendants
truck
sec
onds
point
late, appellants say
collision—too
(considering
of
time),
reaction
horn,
speed,
thereafter
slacken
stop
sound
Assuming
the truck and so avert a collision.
2.38 seconds to have been
insufficient for defendant Collier with the means at hand to have
collision,
averted
position might
defendants’
be correct —if there
nothing
Teague
had been
shown in
evidence of
movement of the
(or
automobile
in the demeanor or
occupants)
conduct of its
reasonably
should have
it
apparent
made
to one in the exercise of the
highest degree
Teague
of
of
care that
driver
was
oblivious of the
approach
intersection and of the
truck,
of defendants’
not
stop.
Thompson
did
intend to
State ex rel.
v.
al.,
Shain et
349
27,
582;
Mo.
159 S. W. 2d
Womack Mo. Pac.
Co.,
v.
R.
337 Mo.
1160, 88
words,
S. W. 2d 368. “In other
it
is the
apparent
peril
danger
which fixes the limit of
zone
far
so
as concerns the
duty
defendant’s
impending сasualty;
act
avert the
and the
question
peril
apparent
of when his
should have been first
depend
must
particular
facts of the
case.
Elkin v. St. Louis Public
74
Co.,
Service
Mo.
S. W.
.
.
2d
.
if
apparently
he is
by a
pursue
dominated
fixed intent to
his course into the defendant’s
peril
any given
he is no
very path,
less
at
place
time and
after
apparent
such
intent becomes
fixed
than would be the
if
case
was
he
predicament,
physically
aware of his
but was
unablе to extricate
Woods v. Kurn et Mo.
al.,
App.,
himself.”
would seem reasonably that it defendant could found that have highest degree care, in the exercise of have should *7 Teague that occupants peril realized of the were the automobile in the point (or 189) bеfore had moved 175 automobile feet intersection, distance, according evidence, the the to the within which moving fifty per automobile stopped. the miles hour could have been so, If question Collier, of the time at which defendant in highest degree exercise of the care, should have realized the oc- cupants question of the automobile in peril, and whether negligent by conduct was as measured the humanitarian thereafter jury. City rule were for the In the ease of Lotta v. Kansas Public Co., 296, Service 117 W. 2d particularly Mo. S. cited and emphasized defendants, by it was held was there no negligence ease, in the In that the truck in which case. riding way private
son was came into an intersection of a street and streetcar, moving along after had street, the defendant’s entered Likewise, case, in our the defendants’ truck must the intersection. prior Teague entry
have entered the intersection to thе car. case, however, In approach the Lotta the driver of the truck saw the intersection; was 200 feet from of the streetcar when his truck n nor motorman of the streetcar was the driver of the truck neither approach; the truck was not in a position of the other’s oblivious humanitarian rule before the front end was peril imminent under the street, for the motorman to pavement on the of the too late position peril because of driver’s act; the truck came into inability brakes; to its defective and to control the truck due there reasonably nothing which should have in the evidence made was that the driver was unable to control the apparent to the motorman not know the brakes of the truck would not truck; the driver did even normally. in cases And factual situations other cited operate case that a from -the facts of instant dis- differ defendants so We helpful plain- here. rule that would not of them cussion jury. to the ease submissible made out a tiff D, giving specified was Number of which
Instruction sustaining ground for motion for new as the trial court by the jury, trial, advised just from the prior and believe evidence that find you . if
“. . by Alice Teague, struck and collided ear driven that the to the time by defendant, Collier, Carl that the said being operated truck with the driving automobile in deceased was said was Teague Alice ... high intersection at a and towards westward riding defendant, . that . . ... sрeed rate of excessive Collier, operating Carl the truck in a north bound direction on Highway 61 defendant, . . . and that the Carl Collier, believed that the Teague stop driver of the car would said automobile before crossing over said and that intersection, reason thereof defendant, Collier, operate along Carl continued to the truck Highway direction, 61 in a you north if bound further find that at the time the driver of the car drove her close proximity truck, tо said intersection that the driver of the Carl Collier, the Teague going stop that car realized was then if intersection, slow down said further find that at you that . . . such proximity moment the truck was in to said inter- close produce great section as to in the of the Carl Collier mind mental said that existed, stress or excitement because of the conditions then Collier, defendant, thereof the was faced with an that reason Carl - emergency calling great upon him for dеcision under such mental you or excitement . . . and if further find . . . stress danger . . of collision . was not the sudden caused any particular by any negligence part on the or occasioned defendant, instructions, forth in Plaintiff’s set then *8 you Collier, defendant, that the not held to the are instructed Carl is degree required be judgment of and care as would of him same was to normal conditions and if he called act under without any great stress or excitement. influence mental of you are that if find facts as here-
“You therefore instructed the immediately prior just that to said colli- forth, set and find inbefore danger defendant, was to the apparent Collier, imminent Carl sion Collier, time, defendant, Carl had not been him- at and that that plaintiff’s instruction, as set forth in negligent any particular in self defendant, Collier, only that the Carl is held you are instructed then person place at prudent that said time and degree care a that of similar circumstanсes would have exercised. and under same in that you find from the evidence this case therefore, “If place Collier, operating defendant, was said time Carl through any of had highest degree care and not with the said truck plaintiff’s instruction, set forth in part, as negligence on his act you emergency arose, that if find sudden sudden to the contributed by same reason of that the arose the sole arise, did but emergency you Teague, they Alice if. that find deceаsed of the negligence, find believe from the evidence you if further negligent, and were existence, emergency into that the de- came sudden when said that any very prudent person acted thereafter Collier, fendant, Carl then circumstances, or similar you the same done under have would defendants, Express Plaza for find issues will Company.” request court at defendants’ the trial may here stated the converse of the in-
gave an instruction negligence. jury in- submitting structiоn humanitarian So substance, Collier structed, that, if when defendant realized or occupants Teague automobile had should have realized that the come Collier danger into imminent it was too late defendant And an collision, plaintiff could not recover. thereafter avert negli- submitting theory given instruction was that the defendant’s gence was the sole cause of the of the driver collision. is determining whether conduct restated,
It has
“In
with
negligent
actor is сonfronted
fact that the
another,
toward
conduct which
sudden
his own ‘tortious
caused
determining
reasonable
requires
rapid decision is
factor
Law
Restatement
II,
character of his
of action.” Vol.
choice
686-8;
Jur.,
pp.
41,
38 Am.
sec.
Torts,
p.
296,
sec.
796. And see
In the case at
W. 2d 541.
Zagata,
446,
166 S.
Lewis v.
Mo.
submitted.
primary negligence of defendants was
bar no issue of
submission
a humanitarian
question
the issues of
occurs to us—should
emergency”
aas
submitting a “sudden
be confused
аn instruction
jury.
factor which should bé taken into account
injured party’s
cause of
Under the
rule “the
humanitarian
injury
voluntarily seeks
he
peril
(save,
when
perhaps,
is immaterial
390,
Co., 329 Mo.
).”
City
.
.
Public Service
.
Grubbs V. Kansas
393,
W. 2d
831, 60 S.
71;
Berberich,
332 Mo.
S.
2d
Freeman
W.
v.
exempts plaintiff
and eases therein
The humanitarian rule
cited.
correspondingly
contributory negligence and
penalty for his own
negli-
primary
exempts
liability for his antecedent
defendant from
148 W. 2d
gence.
Mo.
S.
In jury so authorized far as аre the situation antecedent to case) humanitarian consider conduct determining whether invoking the humanitarian rule in defendamt rule care, just so far exercised due thereafter *9 injury the for defeated; responsibility purpose nullified and its husband) cast plaintiff’s helpless (here to the death of plaintiff the negli- the upon upon contributory or over negligence, back his own although Or, gence plaintiff’s peril. causing of a person third in care harmony with duе may respects in defendant acted all have in the arose, responsibility after the the humanitarian situation negli- may primary casualty antecedent charged be back to his own gence. a emergency as
The submission of sudden of the circumstance of a defendant’s determining factor in character reasonable the defend- of conduct of hypothesizing of action choice necessitates the hypothesized the where priоr coming position ant into to his the emer- the sudden may that emergency arose, in be found order that it Zagata, v. Lewis gency'was by conduct. tortious caused own necessarily anteced- supra. opened, A wide field of has inquiry ent emergency; to con- the wide as to include of so the examination defendant, duct persons of of and the plaintiff and of third causal emergency connection of Was the hypothesized. such conduct with defendant; emergency by sudden conduct of the caused the tortious did plaintiff'or person, it due to of of a or the conduct third through The field of in- physical the action of some force? arise quiry determining in conduct was tortious whether defendant’s emergency whether is wide such conduct caused the circumstance so to antecedent to the admit the examination of conduct hypothesized emergency peril, regardless imminent of whether danger. In came into this plaintiff occurred at or after the time manner situa- .negligence, issues of to antecedent tion, thereof are submitted emergency and causal ctfnnection to the jury determining in whether the circum- for their consideration emergency reasonable determining stance of a factor in should be character of as his conduct is measured action, of defendant’s choice by the hypothe- is causal is humanitarian rule. true the connection emergency cir- negligence sized as and the between the defendant’s jury Nevertheless, we do thus cumstance. not doubt that are refuting the supporting consider “sud- authorized to the eAddenee emergency” question of determining den in the ultimate submission liability. comes plaintiff defendant’s The suddenness with which the (the plaintiff danger may into emergency in an itself constitute being requiring, care, in of due helpless danger) in exercise a is prompt with at at when action action the means hand and time may fraught danger with effective; and the situation nonetheless may emergency to defendant. circumstances attend the And other Although a humanitarian situation. have not found discussion we very emergency subject, opinion Ave circum- this Aventurethe —whateAmr ap- stance, existent to which humanitarian rule is situation governed by respect itself. Imthis plicable, is the rule defendant, implicit situation AA'hichconfronts is in the humanitarian by upon instruction where- should not be isolated and commented thereof, negligence problems the antecedent of causation contributory negligence (or plaintiff), defendant may penalty exempted, be considered for which has been he jury upon the ultimate issue. obtaining say any intending fact or circumstance
We are not rule the situation and after the humanitarian seizes time determining jury urged by counsel and considered cannot be casualty. averting whеther a exercised due care in defendant believe, we strikingly illustrates, Number 7 D Instruction theory attempting ingraft of “sudden effect prejudicial negligence emergency” of a humanitarian case. in the submission negative find- requires *10 instruction it noted that it Studying the defendant, as set “negligence part on of the ing causing forth in or occasioning in Plaintiff’s instructions” “the sudden danger.” emergency only negligence forth in The “set Plain- negligence. tiff’s instructions” Now appears, in order for be blameless in causing the defendant the emer- gency, negative negligence finding primary causing in or-occa- sioning danger” required. sudden or. “the should also be jury primary negligence If the were instructed, so of defendant would put directly in issue-in the trial of cause. the humanitarian negligence hypothesizes the instruction further driver of the Teague (Alice Teague) driving automobile automobile “at a high clearly speed.” Here it excessive rate is seen negligence of person, Teague, driving Alice third high (bringing “at a speed” and excesseive rate of the plaintiff’s danger, ease) our is hypothesized husband into under the facts of as emergency position defendant, hypothesized the cause of the jury if, is authorized find defendants in view of the emer- gency was thereafter hypothesized, defendant Collier free of hu- jury negligence. they manitarian Of course the understood hypothesized negligence to find authorizеd of Alice to be they may though negligence even not have believed her decisive, giving have been the of the collision. We sole cause hold of In- prejudicially Number '7 D was struction erroneous.
Assigned urged by are errors in other instructions respondent as grounds granted. a new trial further have been should questions.. review Counsel We will these have had benefit of study and, aiding to the end of of the briefs a trial court in submit- respects ting fairly again, in all issues should cause be tried may questions. these obviate granting a be affirmed.
The order new trial should Bradley CG., and Dalton, sois ordered. concur. foregoing opinion Osdol, C., PER CURIAM:—The Van judges adopted opinion of the court. All the concur. Lingle F. F. G. C.
S. and Paul McGeehan, Finks, Winchell, H. officers directors and now former trustees of the Brinker Savings Corporation, whose Company, hoff-Faris Trust expired forfeited, charter has Appellants, now v. I. E. and/or W. W. Johnston D. R. Commissioner of Gaskill, Harrison, (2d) Finance of Missouri. No. 39245. 190 of the State W. S.
266. One,
Division November