*1 282 grant may applied be all con- dedication, to' uses
tion, street, proper uses of a with, and not subversive sistent contemplated grant dedication, uses not inconsistent with the subjected condemnation, only and that when the street is servitude, with and a new inconsistent subversive of its use as abutting street, complain.” can owner quarry only in this case So the owner of the was entitled to such damages taking as resulted from the of the ten-foot strip without taking Kearney the fact Street, into consideration as it existed prior condemnation, improved, improvement to the be would which upon highway. would cause an increase travel an- The rule applies nounced the Bell case Telephone to this case. opinion Appeals The of the Court of direct conflict therewith opinion Appeals it follows that record of the Court of Cooley CC., quashed. Fitzsimmons, must the It is so ordered. concur. PER foregoing opinion CURIAM: —The C.,' is Westhues,
adopted opinion as the of the court. All judges concur. Joseph Mildred Next Friend, Wallace, Kreder, Ernest J. St. v. Railway, Heat Light, & Power Company, Appellant. S. 77 (2d) W. 1011. Two, January 7, Division 1935. ding. Sprague, appellant Coni & Mayer,
.284 respondent.
Shultz & Owen for *3 COOLEY, Plaintiff, Harry Wallace, widow of deceased, sued C. statutory recover the $10,000 penalty for the of her hus- death band, alleged negligence been have caused defend- .to Upon ant. trial was there a verdict for cir- the defendant. The cuit court sustained motion new trial and from that order appealed. defendant transportation operates passenger system a bus
Defendant St. 1930, In Joseph, 7, deceased, Missouri. the afternoon of October Harry Wallace, young men, driving with other two was northward Joseph, automobile on in an old Ford Twelfth St.. Street. crashed into the side one busses the intersec- defendant’s injuries tion of Francis and Twelfth Streets. He received from shortly died afterwards. Francis Street runs east and which he right south, intersecting angles. at Twelfth Street north and west, fifty property twenty- lines and Street is feet wide between Francis from curb. a half feet wide curb to Twelfth Street nine and thirty-five lines sixty property wide between and about and a feet going Defendant’s bus east feet wide from curb curb. .was half stated, driving deceased, as was north Francis Street. The latter, ran Street and into the when was at about Twelfth striking intersection, right (south) side, its it on the center of back, edge just front or of the front door. The the door five happened in feet front end of the bus. The accident six from the indicating daytime there there is evidence were interfere, objects sight in either or other street with vehicles respectively they approached the intersection. of either driver “very driving or fast” Witnesses said that deceased was “fast” estimating per hour. . evidence speed miles The but without racing car with another Ford which was indicates he was through” which “shot inter- him, ahead of short distance that he made no effort to slacken his bus, ahead of the section approached point his car as he of collision. speed to swerve far car was witnesses varied as how deceased’s Estimates through latter intersec- passed other Ford when the behind the twenty so, points placed it close as feet others at tion. Some *4 speed distant. The a feet or more is shown hundred not. in have any evidence as the distance which it could nor was there to appreciably plain- speed its One stopped been or slackened. bus, witnesses, Schellhorn, passenger Mrs. a who on tiff’s was.a that from in third seat from the front on the south .side, seated it approached, approaching saw the car and saw deceased which up” “was bus. She said the bus “slowed strike the that collision oeeurréd “it stood still when the stopping” before the ’’ only far I 'was the witness who testified hit, Ford She know. bus slackened before the collision or speed whether or not the as to' the bus There was no evidence as'to when stopped. as to when it was as a nor applied his He not called witness first brakes. driver Wallace’at young two men were either of the who with were though whom, injured, accident. time, both of survived alleged She is based on the humanitarian doctrine. Plaintiff’s case in driver saw or the exercise of petition in her that defendant’s degree highest place have a of care could seen Wallace highest degree by-the exercise of the of care peril in-time to have slowing by giving warning signal the collision avoided down negligently the bns and faded to do so. stopping She submitted jury, however, specification negligence, the case to the on but one viz., speed driver “check” the of the bus to of the bus. —failure objections plaintiff’s defendant’s counsel permitted Over was to jury opening statement he expected prove state to the to companions drinking deceased and his two had been intoxi- liquor cating the accident were drunk the afternoon-of when tending the accident occurred and to introduce evidence so to show. objected plaintiff ground was to When that evidence offered it on the solely the humanitarian that the case was based on doctrine and that question or not the deceased had been at the time in whether under of-liquor . . case, the influence “is not this . has a-defense bearing any on the case from angle, incompetent, .and is therefore objection and immaterial.” The irrelevant overruled and the evidence was admitted. The circuit court sustained mo- (cid:127) ground, on record, tion a new stated of for trial- it had permitting defendant’s counsel to make the erred statement jury admitting tending above referred to and the evidence companions that deceased and his were show intoxicated at the n - of the accident. time contends the plaintiff' Defendant did not make out a case jury request go to the and that its for a directed verdict should granted; require have been a contention that. would con serious necessary sideration were it to decide it. If picking out together piecing portions of the evidence most favorable to the enough may plaintiff be found to make a submissible at case it is jury very absolving best a weak one. The verdict defendant e negligence clearly charge supported by ample from th evi e we dence And sinc the verdict was the defendant and have setting the learned trial court erred in concluded aside unnecessary analysis make a detailed statement and evi dence to determine whether or not it makes a submissible case. right ruling court was
I. We think the its first admit ting tending the evidence to show that deceased was at intoxicated wrong in the later the accident and conclusion that such time been, evidence; erroneously had course, plaintiff admitted. Of since sought recovery solely under the humanitarian rule neither her hus fact, manifestly gross negligence if a nor his intoxication, band’s. action, constituted a defense to her nor did absolve defendant .either negligent *5 liability from if it prop was under that rule. The court erly jury. so the But defendant had instructed contended that it. guilty .any negligence not been and that the had been accident solely negligence incapacity caused by the own his deceased’s resulting intoxication, from his condition not recklessness —a
287 expected be to then to and wbicb he not known tbe bus driver could. anticipated. something which the-bus driver bave Until there was antomohile in the movement of the. observed or should have observed auto or the actions its to indicate the and conduct of driver proximity mobile driver was oblivions or heedless presume right not drive would the bus driver had a deceased to hus, heedlessly before which in the intersection into the was jury, may de have found that deceased it. well reached And pos in full and ceased would not have done so had he been sober consequent unfitness session his His and faculties. intoxication automobile, danger him heedlessness of drive an if a fact.' intoxication, well as self which from these and others often results actually circum facts and as the manner in which did drive are he collision, entering attending happening of the stances and into the arose, and tend event which of action out of the claimed cause they explain ing question it. can but Ve think there be (testae. Law, parts Ruling page Case constituted 982, In the res max well declarations section 364. we read that “Facts as parts reason,” (testae, form of the res admissible for be (,testae which and th’at all facts circumstances “Bes include those act, litigated particular are which illustrative incidents of a are part of such itself.” act and in law of the act are contemplation Juris, 559, Corpus In 22 page 470. it is said: “Facts or section upon may shown circumstances attendant the main fact" in issue be part although ftestae, they action.” the res involve no idea of intestate, 354, (Conn.), In Griffin v. 105 Atl. Wood walking highway. operated while by' in the a motor car Was killed defendant, approached which the decedent from' behind. pavement The defendant claimed that his car was oh the where belonged decedent, grave walking and that the who had been on the pavement, suddenly danger, beside the where he was not in had stepped spite in front the car and was struck of deféndánt’s stop; prov® efforts to and he also claimed offered evidence tó evi holding the decedent was intoxicated at the time. In competent . “It . . dence of intoxication the court said: is true only importance alleged that the intoxication of the deceased that, true, strengthened probability if was of the defendant’s plaintiff (deceased?) staggered claim that out front of automobilq. great defendant’s In im that connection it was of ” . portance. . The court further said'that intoxication was not negligence per alleged se but that ease an which fact the de- sought prove fendant because it tended to confirm his version of n n ' the accident.
In jury instant case there was evidence from which could the' well have found that entering the deceased could have seen the bus yet easily the intersection when enough away he was far to have *6 enough bus running away that the stopped before into and far would not he grounds to think that driver would have no reasonable Schellhorn, testimony especially Mrs. so; evidence, of do also the striking easily appears avoided have from which it that he could by right. in of swerving front passing bus a little his the fact, explain otherwise condition, tends to His intoxicated if a of headlong inexplicable the side driving into seemingly in conduct deceased’s contention and tends to defendant’s the bus sustain act of the accident. own sole cause giving Respondent in de court erred
II. that the contends new motion for L sustained the Instruction and should have fendant’s ground argued also, though is It trial on it did not do so. phrase “place im correctly of said instruction does not define peril” and defendant’s minent as used in instructions and that it K narrowly danger zone. Said instructions Instruction too restrict the read as follows: re- jury plaintiff “K. seeks to The court instructs the that the damages upon operator ground solely cover in that the this case saw, or, by of the exercise of the motor bus evidence mentioned place highest degree in a the deceased care, of could have seen degree highest by peril time, of of imminent the exercise of the care, checking speed by thereafter collision to have avoided the bus, negligently so. operator of the failed to do but the of said bus " plaintiff are has shown “You therefore instructed that unless the
by your reasonable preponderance evidence, credible of the satisfaction, or, operator saw, by the exercise of said place degree highest care, the deceased in a of the of could have seen degree highest peril by time, of the exercise of the imminent care, speed of said bus. thereafter checked the of have so, negligently collision directlv he failed to do and that the therefrom, your ver- plaintiff resulted cannot recover and then the defendant, every fact and regardless dict must be for the of other circumstance in the case. By ‘place “L. instructions of peril,’ of imminent as used in the harp court, just place
the possibility a is not meant a wherein there is mere injury occurring. place an a wherein there It means danger.” is certain K plaintiff’s principal instruc-
Instruction but the converse of required which, question, jury tion on that de- to find that the danger place peril, ceased “was a and imminent and that charge by bus, saw, driver in operating it, said while the exer- care, highest degree cise could have that deceased. seen Harry Wallace, place danger was in a if peril, and imminent by you find, time, highest so degree the exercise of the of care. checking accident, to have ... avoided said speed bus, so, and failed to do Harry was there- Wallace
289' by injured, injury and that reason said be If there died.” question K, was error defendant’s Instruction we need not consider, by plaintiff’s it was invited her instruction and furnishes ground complaint. proposition re- well That too settled'to quire further discussion citation of authorities. *7 L Instruction purport does not circumscribe limit . danger
the merely meaning phrase It zone defines the “place peril” of imminent in parties, used the instructions of both language essentially meaning and in it does so in has the same as defining danger frequently “im been used in the this court necessary minent In neril” to invoke' the humanitarian rule. State Vulgamott 1014, 92, Trimble, ex rel. v. 1019. 109, 300 Mo. 253 S. W. ‘peril’ peril.’ we said: “The word used in the rule ‘discovered as rule,’ something ‘humanitarian or ‘last chance doctrine’ more means possibility injury Through than a bare . . all occurring. an the cases the ‘peril,’ and runs idea and in a broader texts the possibility injury.” sense than the mere Ry. 1017, Ziegelmeier 1013, In 51 Co., v. St. L. & 330 Mo. Sub. (2d) 1027, said, concurring S. W. 1029, quoting opinion of we from 482, J., Morris, 273, 254, Banks v. l. 257 S. W.
White, Mo. c. 486, that hu peril applying imminent the is the as term used uncertain, remote,' contingent, manitarian nor rule “does not mean imminent,' (for person affected) im danger. the It is avoidable mediately th« impending; it on time admits for-deliberation part of person peril impend appearance between its and ’’ ing calalnity. Ziegelmeier The similar to this in the facts is .ease plaintiff’s relative to the and conduct. situation 219, Jones, Ridge 713, (2d) In v. 71 W. we reviewed 335 Mo. S. prior point while, perhaps, on it not decisions held is this and appears necessary in order invoke the humanitarian rule that to. complained of, negligent injury was certain to follow tbe act necessary is and certain the mril been imminent should have Huckleberry 1034, 1025, Ry. W Co., In v. 26 S. Mo. Pac. 324 Mo. 983, (2d) 980, principal reading and it is said: “From a sunra) concurring Morris, opinions (Banks v. the Banks case certain, peril,’ it seems clear that ‘imminent that is immediate Ridge impending peril, is case there meant.” As we said the Banks case formulates cause the constitutive elements of ‘ action under the humanitarian rule. (cid:127) apparent foregoing “place It is from the definition of peril” of imminent L in accord- with contained Instruction peril” what we have held cases the term “imminent mean in such subject this and that justly criticism instruction is not to the n against leveled it.' It is our conclusion in sus- the learned circuit court erred taining motion for trial. order action new Said
290' circuit court to the canse is remanded is' reversed court for new sustaining motion aside the order directions to set with judgment defendant and enter trial and reinstate the verdict Bohling, CO., concur.
thereon. Westhues Cooley, C., adopted foregoing opinion PEE-CURIAM: —The judges opinion All concur. court. Henry Mary S. R. Guardian of v. Schoenherr, Schoenherr, Stoughton Company, Appellants. and Travelers Insurance (2d) 78 S. W. 84. January 7, Two, 1935. Division *8 Hocher, Sullivan, Gladney n <&Reeder for appellants. Jones,