Smith v. Ozark Water Mills Co. , 215 Mo. App. 129 ( 1922 )

The plaintiff, administrator in this case, obtained a judgment against the defendant, appellant, on account of the death of Herbert Smith, alleged to have been the result of defendant's negligence. It is alleged in the petition, and shown by the evidence that the deceased, Herbert Smith, was a young man about twenty-six years of age and lived at his father's home about a mile or so north of Ozark, Missouri. That he had contributed out of his earnings to the support of his father and mother, and was single and unmarried. He started out from Ozark one night on foot going to his home, traveling along the public road. After crossing Finley Creek, over which there is a bridge, he was overtaken by a friend driving an automobile who lived several miles beyond deceased's home on the same road. He stopped and asked the deceased to ride in the car with him but that the deceased stood on the running board and refused to take a seat in the back of the car where it was offered to him by the driver and owner of the car and by another passenger who was in the back seat. After he got on the car, the road he was traveling ran west for quite a distance where it then turned on a curve up a long hill. The evidence shows that while the road was about forty feet wide, the traveled roadway was all on the west side of the road, or the outer rim of the curve going up the hill, and that the east half of the road was not in good condition for traffic. After the deceased took his stand on the running board or step of the automobile, he held a possum out in his left hand which he was taking home, and leaned or sat against the side of the car and held on by taking hold of what is known as the robe strap back of the front seat. The owner of the car, after he had gone west some distance and was coming to the turn in the road which leads up the hill, speeded up his car to where it was running something like thirty miles an hour. The car had lights on it and was well equipped with brakes and steering apparatus so far as appears in the record before us. In going up this hill on a turn, it is shown that the lights of an automobile going west and north, such as was the one on which the deceased was riding, would not be turned for any great distance on the road it was traveling. The curve in the road would make the light shine out to the west or left of the road. The evidence tends to show that at the time at which this took place it was dark, or at least so dark that objects could not be seen far ahead in the road. The petition charges, and the evidence conclusively shows, that the defendant was operating a truck between Springfield and Ozark, and that on this night this truck was coming down the hill which the automobile the deceased was riding on was going up, and that this truck had no lights, as required by law, in fact there was no light on it whatever. The deceased and the driver of the truck were both very familiar with the road at that place. It is further shown that the driver of this truck, who was the servant of the defendant, gave no warning by horn or otherwise that he was coming down this hill. The truck was coming down in the traveled road which was on the right hand side of the road, the same track in which the automobile the deceased was on was traveling up the hill. The evidence of the witnesses shows, without question, that no one in the automobile on which the deceased was riding saw or could see the defendant's truck until it had gotten very close to it — some of the witnesses put it at about ten feet. The driver of the car on which the deceased was riding, and who was a witness for the plaintiff, gives this version:

"Right on the turn there of this hill we met a truck and there is where the boy was thrown off. We was going this way and my lights was on ahead of us this way. When I turned to make the turn on the hill this truck was right here. I don't know how far from me when I first saw it. It was awful close to me. It looked to be right at me. It was close enough to me that when I cut the car this way (indicating) it looked like it knocked him down the road. I wouldn't say that was what happened. When I cut the car was when I saw him leave. I looked back that way and I cut the car as quick as I could. I don't know how far I missed the truck, it was pretty close. We wasn't very far apart. The truck had no headlights. There was a couple of dash lights up on the dash. It had no lights burning at all. I heard no sound of warning of any kind. I knew nothing about it until I swung my car and my lights were turned on it, when I made the turn around why the truck was there in the road. After I turned the car, the boy that was in the car with me he got out before I could get my car dead still."

He further says:

"When I heard him speak I just set down, backed down and turned the car. The boys put him in the car and we taken him into town and to the doctor. I don't know how far the truck run after I turned the car. I judge it wasn't much over two lengths of the truck."

Another witness for the plaintiff, who was riding inside of the car on which the deceased was riding, gave this version:

"Mr. Estes was driving on the left hand side of the road, that took him out toward the rim of the curve. He was traveling, I judge, about twenty-five miles an hour. I never saw the truck until he fell off the car. I saw him fall right in front of the truck. I didn't know what he was doing until he did. When he turned the car it throwed me over. It looked to me Estes was about ten feet from the truck when he started to turn, just right against us, he was going at about that rate of speed, he missed the truck. Smith fell off the car in under the truck, he hit right in front of the truck. The truck was still moving."

The petition charges negligence in a failure to have lights burning on the truck and failing to sound any alarm or warning, by driving negligently around this curve without keeping a vigilant watch, and then attempts to plead a failure of duty under the humanitarian rule. The answer of defendant is a general denial, coupled with a plea of contributory negligence.

The assignments of error are, first, that the instruction asked by the defendant in the nature of a demurrer to the evidence should have been sustained; first, because of the contributory negligence of the deceased, and, second, because under the last chance doctrine it shows the truck driver did not and could not see or know of deceased's peril before the driver of the truck did stop. Assignments are also made concerning the giving and refusal of instructions.

We will take up first the assignment as to plaintiff's principal instruction, because it contains manifest error and will require that this judgment be reversed. The last lines of this instruction inform the jury if they find the issues for the plaintiff, they will "assess the damage at whatever sum you may deem proper not to exceed the sum of seven thousand five hundred dollars." We just held in the case of Wilbur Stookey, a minor, by his Next Friend, Carrie M. Stookey, v. St. Louis-San Francisco Railway Co., 215 Mo. App. 411, that an instruction fixing the damage, in practically the same words as the one in the case at bar, was erroneous, citing therein the cases of Johnson v. Mining Co., 171 Mo. App. 134, 156 S.W. 33; McGowan v. St. Louis Ore Steele Co., 109 Mo. l.c. 537, 19 S.W. 199.

Actions brought under sections 4218 and 4219, Revised Statutes 1919, for pecuniary loss are wholly compensatory, and instructions on the measure of damages must contain a guide with reference to the necessary loss.

If there can be any recovery whatever in this case it must be based on the humanitarian doctrine, because the action of the deceased in standing on the running board of an automobile which was traveling up a dark road, on which the lights of the machine on which he was traveling could not, owing to the curve in the road, shine and throw light, traveling at a rate of twenty-five to thirty miles an hour and being on the outside or curve side of the road, and on the wrong side, when there was a seat in the automobile where passengers riding in automobiles are supposed to be, and which had been offered to him, is an act of negligence concerning which reasonable men could not have a difference of opinion. The law is well settled that where a person voluntarily assumes a position of imminent danger when there is at hand and accessible to him a place of safety, and by reason of having taken the dangerous position he is injured, he can have no recovery against another who is also negligent because such person's negligence in taking the dangerous position is one of the direct and proximate causes of the injury and contributes thereto. In such cases it becomes the duty of the court to direct a verdict. [See Smotherman v. Railroad, 29 Mo. App. 265; Carroll v. Transit Co., 107 Mo. 653, 17 S.W. 889; Gabriel v. Railroad,135 Mo. App. 222, 115 S.W. 3; Fussellman v. Railroad,139 Mo. App. 198, 122 S.W. 1137; Williams v. Storage Co., 214 S.W. 385; Woodson v. Street Railway Co., 224 Mo. 685, 123 S.W. 820; Collett v. Kuhlman, 243 Mo. l.c. 591, 147 S.W. 965; Nivert v. Wabash R.R. Co., 232 Mo. l.c. 643, 135 S.W. 33.]

The case of Wheeler v. Wall, 157 Mo. App. 38, 137 S.W. 63, is an automobile collision case wherein the facts are somewhat similar to the case here so far as a failure to have lights and speed of the car are concerned. The plaintiff there was denied recovery on account of contributory negligence.

We, therefore, must hold that the deceased's act in riding on the running board of the automobile at the speed it was going and under the surrounding conditions, was an act of negligence. There is another reason for holding him guilty of negligence, which is that while the negligence of the driver of the car he was riding on cannot be imputed to him, yet all the evidence shows that he rode where he did without any word of protest or caution on his part to the driver of the car. This, under the law laid down in Burton v. Pryor, 198 S.W. 1117, made his unprotested acquiescence in the negligent act of the driver his negligence.

Attorneys for respondent doubtless realized that the act of Herbert Smith was a negligent one, and recovery is sought in the petition under the humanitarian doctrine. The theory of applying this doctrine to this case as it was tried was to make the driver of the truck guilty of negligence for not stopping after the deceased was thrown off the car and in front of the truck. We have set out the evidence of the eye witness to the tragedy heretofore which shows beyond question that as the car upon which the deceased was riding suddenly swerved to the right to avoid a collision, the deceased was thrown off of the running board right in front or under the truck. The evidence further shows that the truck, at the time he was thrown off, was moving down the hill, and the weight of the same was about 3500 pounds. It is not shown that the driver of the truck ever saw the deceased fall off of the running board right in front or under his truck, and the physical facts would strongly indicate that the lights of the car on which the deceased was riding, he being behind them, would make it impossible for the driver of the truck to have seen him fall. And as the truck was stopped, under the testimony, within two truck lengths from where the car on which the deceased was riding turned out in front of it, there is not time enough, in such an emergency, to hold that the truck driver could have done anything other than he did after the deceased was thrown in front of or under the front of this loaded truck.

We are, however, of the opinion that there is evidence in the record upon which a recovery might be had under the humanitarian doctrine, and that is on the following theory: There is some testimony in the record that from the top of the hill and on the way down the hill, as the truck was coming, the lights of a car coming toward him could have been seen a long way off, in fact clear on down to the bridge which crosses Finley Creek, some 300 or 400 yards away. If this is true, then the driver of the truck knew his lights were out, and knew that those using the road who would meet him would be in the same track that he was traveling also knew that his presence in the road would not be discovered by reason of the lights which were on the oncoming car until it was practically on him, so close indeed that a collision or an accident was almost inevitable. As a reasonable man, he must have known that his failure to have lights on his heavy truck would make those in the oncoming car entirely oblivious to his presence in the road and to their peril in meeting him. If he could see this car coming, or the lights coming, he could judge somewhat of the speed that it was traveling, and a duty then fell on him to take such steps as a reasonably prudent man would have taken to have warned the oncoming car that his truck stood there as a menace in their path; and this even though they were on the wrong side of the road and his truck was on the right side of the road. He would be held to a knowledge of the fact that the car approaching him was in peril and that those operating it would likely remain oblivious to their peril until it was too late to avoid some sort of accident.

To say that he did not know that the deceased was riding on the running board is no excuse for his failure to take all steps that were necessary to protect those who were in or on the oncoming car. Under the long line of decisions in this State one does not have to anticipate the actual injury or damage which finally does take place, but he will be held liable for everything which, after the injury is complete, appears to have been a natural and possible consequence of his act or omission. [See Hudson v. Union Elec. Light Power Co., 254 S.W. 869, l.c. 871; Deneschocky v. Sieble, 195 Mo. App. l.c. 479, 193 S.W. 966; Buckner v. Stock Yards Horse Mule Co., 221 Mo. 710, 120 S.W. 766.]

Assuming that on a retrial there will be testimony showing that he could, by the exercise of ordinary care, have discovered the peril the car approaching him was in, occasioned by his failure to have lights, and assuming that it be true that he gave no sound of warning, did not stop his truck, or get out and run forward and warn them of the presence of his unlighted truck, or in fact do anything other than proceed down the pathway that he knew they were coming on, makes a question of fact to be determined by a jury, as to whether he acted, under those circumstances, as a reasonably prudent person would have acted — whether he had the means at hand to have avoided injuring the deceased after he knew or should have known that he was in peril and oblivious to it. This, we think makes evidence which would sustain a judgment under the humanitarian rule, and if on a retrial the respondent sees fit to draft his petition along this line he should eliminate the cause for criticism of the petition as it now stands, made by the appellant and citing as a ground for such criticism Stark v. Bingham, 223 S.W. 946; Knapp v. Denham, 195 S.W. 1062; Albright v. Oil Co., 229 S.W. 829.

There was some evidence introduced by the defendant that the deceased was to have been married a few days after the day on which his injury occurred, it being that the deceased was to be married to the truck driver's daughter. There is also testimony from which it could be inferred that this marriage would not have taken place, that is to say, the mother and father, with whom he was living and supporting, testified that they did not hear of this proposed marriage until after his injury. The jury could consider this evidence along with the common knowledge of all that "there is many a slip betwixt the cup and the lip," in arriving at the amount to be allowed. This, like the possibility of the dependents dying, the possibility of the supporter dying or stopping his contributions, is to be taken into consideration by the jury. We, therefore, think that defendant's instruction No. A, touching this phase of the case, should have been given.

It is unnecessary to discuss other errors complained of, as they will doubtless be eliminated on a retrial.

For the reasons given, the judgment is reversed and the cause remanded. Cox, P.J., and Bradley, J., concur.