*1 1923. G-raupner Casper & v. Wells. plaintiff right she

sured. whether to elect policy in or $665, would receive $12, settlement -the nothing amounted to de than an immediate suable less larger plaintiff through go mand for the sum. For the performance formally notifying the defendant preference she taking elected to take $665 $12 policy, séttlement 'of the would have an been worse than ceremony. Security idle [Veal v. Mutual Life Ins. 6Co., App. Ga. l. c. 726; Head v. New York Life Ins. 241 Mo. c. 403, l. 418, 147S. 827.]W. rightly entertain no

We doubt that the case ad- judged in the court, trial and the Commissioner recom- judgment mends that the he affirmed. foregoing opinion

PER CURIAMThe of Sutton, adopted opinion C., is as the judgment of the court. The accordingly of the circuit court is affirmed. Allen, J.,P. and Becher and Danes, JJ., -concur. Doing

THEODORE F. GRAUPNER and F. CASPER, Hauling Company, Respond Business as Realtors ents, v. ROLLA WELLS, Receiver UNITED RAILWAYS COMPANY OF ST. LOUIS, a Cor poration, Appellant. Appeals. Opinion February St. Louis Court of Filed 1924. Negligence: STREET RAILROADS: Collision: Failure of Motor- Applica- man Warn Truck Driver of Peril: Rule: Humanitarian damages tion. In an action for caused a collision of defend- ant’s' street car with the failure of the motorman to warn the driver of the motor truck approaching proper predicate from the ear awas resulting injury for the the humani- rule, although tarian the driver of the truck saw the street car approaching going tracks, before where the motorman car, had lost control of the and of this the driver of the wholly oblivious, motor truck was knew peril and knew or could have known that the driver was oblivious APPEAL MISSOURI it, timely warning and that a have the driver enabled slightly merely turning thp to extricate himself therefrom right. to the *2 -: -: -: -: -: Evidence: Case for the 2. Jury. of the Evidence that driver* a motor truck drove when the upon ap- intending the turn an street car tracks to make a proaching street car was 250 feet distant immediately applied pulled lever, the brakes and the sand very being slippery, intervening track car slid distance colliding with motorman to the failure of the sound the any warning give or bell of the from sliding car, of which driver of the truck was wholly oblivious, negligence, and authorize was sufficient jury affording the submission of that issue to the as a reasonable performed duty given if had inference that timely warning danger, gotten the truck would off of have of have the track and the collision would been averted. City Appeal of from the Circuit Court St. Louis.— n Judge. . Franklin Eon. Millerf Affirmed. Hurt

Charles W. T. E. Francis and Alva W. Bates, appellant. give jury refusing (1) The court erred to the evidence instruction in the a demurrer nature of plaintiff’s of case offered defendant at close following for the at the close whole reasons: case, contributory neg- guilty plaintiff of 1. Because recovery ligence barring him law, a matter of negligence theory of submitted as liability, namely, predicate failure to warn. sole Rys. 33; 217 W. S. Roenfeldt Co., Gubernick v. United Reynolds, Railways ex rel. v. 554; v. 180 Mo. State Co., 216 Mo. Railroad, Kinlen v. 145. 2. 233 S. 219; W. negligence theory submitted as the sole Because the namely, liability, failure warn, was not Peterson v. United collision. the Rys. cause Rys. v. United 67; Co., 270 Mo. Gubernick 217

Co., 165 1923. n v. Stepp Winkler 229; v. 85 Mo. 33; Railroad, S. W. Railways Rys. v. 229 W. Battles 229; S. Co., United App. Í96 Mo. Railroad, Mockowik v. 596; Mo. Co., (2) Ry. 546. 195 Mo. Co., v. Mo. Pac. 550; Hutchinson recovery contributory negligence barred Plaintiff’s speed vigilant ordi- watch and violation of under the under plaintiffs recover entitled to were not nances and because the the Last Chance Doctrine, these theories and proven. necessary to their invocation were facts Burge Fleming Railroad, v. 76;Mo. Railroad, v. App. Quinley Mo. Traction 180; 263 Mo. jury plaintiffs’ giving (3) modified The court erred recovery upon permitted a No. which instruction .the following negligence reasons: warn, neg- guilty contributory plaintiffs 1. Because neg- recovery theory ligence barring *3 point subdivision 1. ligence. 1, under cited Authorities was not. cause to warn 2. Because under subdivisions Authorities cited 2, of the collision. point 1. respondents. for Paeben

Conrad counsel. Wiebe, of Albert respondents’ evidence

(1) Appellant’s to demurrer Ry. Met. v. St. accepted true. Stauffer that evidence as 193 43. Railroad, S. W. v. 1035; Dawson S. Co., 147 W. respond- to Appellant, failing his demurrer on to stand introducing himself, for evidence ents’ evidence, right Mc- a of same. deprived review himself Appellant (2) Ry. 187 S. W. Co., C. & R. Whirt v. .respondents’ complaint grounds as is without “Vigi- negligence contributory the violation under ordinance, a ask withdrawal he failed as lant Watch” question his demurrers to after on instruction question of fact for hence a overruléd, evidence Railways Co., 236 jury. S. v. United W. Crone Leahy Pryor, 430; 210 S. W. v. Winkel, v. Torrance 656; 166 214 APPEAL MISSOURI

Graupner & may (3) be one S. W. 483. As in the instant case, approach yet unable to aware of a be street car ap- speed or it is know realize the at rate of proaching, stopped under cir- tliat be the car cannot dangerous present, situation cumstances knowing rule, hence, without humanitarian it; necessary. danger Albert United v. is Railways Ry. K. 0. Co., 795; Co., S. Hill v. W. Respondents’ (4) to the case, 233 S. W. 208. submitted jury predicated instruction 1, under the No. was approach the failure to warn of the of the street car, predicated upon but the humanitarian rule of failure stopped street car could not be when position was' in a truck and the driver Rys. thereof. Hill K. C. oblivious S. W. 208, (5) greater cited. Instruction No. and cases 1 cast a upon respondents recovery burden for a undbr the hu- though jury manitarian rule even that, than found position that the- was in a its yet, thereof; oblivious further condition to a re- covery, charged jury the instruction would have from to further find believe evidence that the respondents’ agent exercising ordinary and servant was respondents’ safety care at the time for the truck. damages action This an SUTTON, C. caused a collision car with the truck. occurred Jan uary at the intersection of Beaumont and Olive city in the of St. Louis. Olive street streets, runs east *4 Beaumont street west; and runs north and south. The defendant a double track on maintains Olive street. charge proceed driver motor truck of was north the side of westward on Olive street. Another ’ employee plaintiffs was seated to the left of the right-hand The truck driver. was drive, and was long. arriving ten feet On at the about east line of Beau the driver of motor street, mont the truck and his co- employee street car about 250 feet west

Graupner & Desiring turn moving of the eastward. intersection, around and street, drive back east on Olive signal right of the motor truck extended hand as his making into turn, turned the motor and point Beaumont near across the to a street, tracks, unable southeast corner of He was the intersection. complete running bank the turn without into snow He on the south reversed side Olive street. by signaled machine, machine, his intention back completed right extending machine, backed the hand, proceeded along side the south turn, and eastward proceeded from street. the truck had Olive When twenty- into Olive Beaumont street about fifteen or feet of the the rear end street, street car collided with turning it the truck around that faced west. so moving of the collision the truck At the time right, pulling to had cleared the to the east, except The street car struck track, the left rear wheel. body speed of the truck. The the left rear corner of the not shown. An ordinance of the of the street car was speed requires city, cars in that however, street per territory ten hour. not exceed miles should testify. motor truck did not It The driver of employ in the of defendant at the was said plaintiffs’ employee, However, the trial. time the time the driver at accident,: seated who testimony, plaintiffs, in the testified out set of the details above main, also testified the street witness This are disclosed. slippery, day and that it was a cold tracks were any dry, that he did observe the rails slippery the tracks. condition of platform styeet passenger the front

A He testified when collision. witnessed ear Olive into out of street Beaumont truck turned motor the street car was about tracks, street, across truck; feet west immediately applied pulled the brakes and apply the brakes continued lever, and

the sand *5 Í68 MISSOURI APPEAL Casper

Graupner & Wells. pull the occurred; lever until sand slippery; along very track slid like it that the car soaped was on a that the motorman tried his best track; they stop to soaped. like but slid on car, rails The evidence showed did not gong any give sound or bell the street car, warning danger impending sliding from the car. testify. The motorman did judgment plaintiffs, There a verdict appeals. defendant complains

Defendant the court erred in sub- jury 'mitting to the the failure motorman to warn danger impending driver of motor truck of the approaching liability, from the car as a ground under the rule, humanitarian of this com- (cid:127) plaint urges the defendant the evidence was in- sufficient authorize the submission of that issue to jury. Speaking specifically, more the defendant in- plain- that the evidence shows that sists the driver of approaching tiffs’ truck when he started.to having make the turn Beaumont street, and, that approach knowledge of the car, no notify necessary approach, him of such and that the by sounding of the motorman warn him injury was not the or bell cause of the plaintiffs sue. instruction, however, did predicate the failure of the motorman approach driver of the car, upon but failure to'warn approach impending, from of the car the cir- lender in evidence. cumstances shown operator the humanitarian rule, “Under if the peril, one in and oblivious sees then thereof, he any required all means at to use his hand to avert person. injury stop If he can such car, he must stop. slackening speed, although If the unable to stop, injury, avert must will do that. If a warn- injury ordinary requires avert the care will that of *6 operator.” Railways City [Hill such v. 289 Kansas Co., Mo. 193, l. c. 233 204, 205; S. W. Albert v. United Rail — ways App. Mo. 232 Co., S. W. l. c. —, 793, 795; Wolf — Ry. App. —, v. c. Wabash 251 Co., Mo. W. l. 441, S. Metropolitan Ry. 445; Kinlen v. Co., 216 Mo. 145, St. Ry. 115 S. 523;W. Hinzeman v. Missouri Pacific 182 Co., Cytron Mo. l. c. 611, 623, 1134; 81 S. W. v. St. Louis Transit Mo. c. Co., 692, l. 719, 205 104 109.] S. W.

In the case at while the bar, defendant’s street car yet point the 250 feet from the collision, was motor operating man the car became aware of the plaintiffs’ persons threatening the motor truck, and the covering in it. the street car While was entire this maneuvering motor truck was distance, danger within the motorman zone. The must have known that the impending oblivious driver of the was of the permitted danger. motorman It is certain the was that the driver of truck knew the assume slippery car reason control of his of the had lost con track, and that the driver was dition aware danger impending reason of such loss of control. Notwithstanding motorman knew of the known that the driver the truck must have was ob- permitted danger, he car to slide un Ir'ous slippery track, a over a distance of controlled 250 feet, with the and collided till it overtook sounding gong or or bell, without otherwise danger. warning the driver That the motorman to sound the bell under failure of negligence, there can be circumstances no doubt. such any question there can we think that Nor do the evi amply to afford a sufficient dence was reasonable in performed duty if had that, ference timely danger, given the truck would gotten off of the track, have have Railways v. United [Battles 178 Co., averted. been App. Mo. Chicago 614; 161 W. Stotler 614, l. S. v. 596, c. & Railway Mo. l. 107, 136, 200 c. 98 Co., S. 509.] Alton W. APPEAL MISSOURI rely v. United Gubernick counsel Defendant’s — Railways in 33. The facts Co., —,Mo. 217 S. W. very in the case at bar. case are different from facts in rule in the humanitarian Besides, case, pointed pleadings, distinctly in the- this was voked ground opinion holding out plaintiff to recover under the humani was not entitled tarian rule. rely upon counsel also

Defendant’s Peterson Railways l. 270 Mo. c. S. W. 938. United plaintiff In an automobile stalled case, street car tracks. He testified saw running rapidly toward that he him, up and movement its until about time struck the *7 coming that the was so automobile, fast, and he did in what to do. It is clear that that not'know plaintiff case the only up not the car and its saw movements it until the time struck the but that automobile, he also fully danger. realized the In fact he was with consternation fear of so struck and him, threatened that he did not what know to do perilous to extricate himself from his situation. It was the court state of facts held this that the failure should not have been to sound the made recovery. predicate difficulty There is no a a in dis tinguishing on the Peterson case its facts from the case at bar. bring which will

The and circumstances facts a cause imposing liability part for failure on within the rule person street car to warn the motorman of a in a position perilous oblivious are thereof, and as variant as judicial been in the rule has invoked, the cases which and interpreted any in case must be such utterances in the light interpreting of that case. of the facts So the Peter- nothing think it decides than son we more ease, plain- motorman to warn the already knew, of what tiff injury, that, cause of and therefore, his to make such predicate liability failure a reversible error. We holding understand, it that where do not the motor- position perilous person in a man of a sees peril person and inis such tracks, knows peril, under such and knows that he is oblivious peril, when such circumstances fails to warn him of his warning from himself enable him to extricate would person, peril, injury failure to such and to such results predicate may properly be-made injured per merely injury, because for the resultant upon the approaching went when he son the car is out accord hold, it does so however, tracks. If, City in Hill v. Kansas decision with the more recent Rys. 205, wherein l. 233 S. W. Mo. c. operator distinctly aof street car that, if the it is ruled warning peril thereof, and a oblivious one sees requires injury, ordinary care such will avert the give given, such warn the failure liability. properly amade danger to driver, us, the case before In applying here concerned hu- we are with which from the fact that when arose doctrine, manitarian go proceeding east track and truck was ear. Of this control of the had lost wholly oblivious. motor truck was the driver peril, knew of the the street car plaintiffs’' ought have known knew timely warning en- that a it, oblivious of merely him therefrom turn- extricate himself able *8 right. slightly To hold the truck under these motorman, circumstances, failure of peril proper not a of his part defendant for the -on the abrogate injury, humanitarian resultant doctrine. judgment recommends

The Commissioner court be affirmed. of the circuit opinion foregoing PER CURIAM: Sutton, judgment adopted opinion of the court. The

C., of the circuit court is affirmed, accordingly Allen, J., P. Daues, JJ., Becker concur.