Opinion
No. 39917.
March 10, 1947. Rehearing Denied, April 21, 1947.
1. NEGLIGENCE: Motor Vehicles: Evidence: Collision at Street Intersection: Evidence of Stopping Distances Sufficient. The evidence of the distances at which defendant's truck could have been stopped at different speeds was sufficiently definite for the jury to draw an inference.
2. NEGLIGENCE: Motor Vehicles: Collision at Street Intersection: Submissible Humanitarian Case. There was a submissible humanitarian case that defendant's truck could have been stopped or could have swerved in time to avoid colliding at the street intersection with the automobile in which plaintiff was riding.
3. NEGLIGENCE: Motor Vehicles: Trial: New Trial: Collision at Street Intersection: Inconsistent Instructions: New Trial Properly Granted. Plaintiff's humanitarian instruction based on the ability to stop or slacken the speed of defendant's truck was inconsistent with plaintiff's instruction No. 3 which was based on the theory of inability to stop because of defective brakes. A new trial was properly granted.
4. DAMAGES: Verdict Not Excessive. A verdict of $10,000 for injuries to a man 78 years old which caused both mental and physical disability was not excessive.
5. DAMAGES: Loss of Earnings Not Too Speculative: Instruction Upheld. An instruction allowing loss of earning was not improper on the ground that the evidence was too speculative. Inability to continue in a partnership business would indicate future loss of earnings even though the other partners had been performing plaintiff's part of the work up to the time of trial.
6. DAMAGES: Medical Attention and Hospital Care: Instruction Sufficient. The instruction allowing damages for medical attention and hospital care was proper even though it did not require the jury to find that plaintiff had incurred or become obligated for such expenses. There was sufficient evidence to support the instruction.
7. TRIAL: Jury Argument: Prejudice Not Shown. Prejudice due to arguments to the jury was not shown, the court having directed the jury to disregard some of the remarks.
8. NEW TRIAL: Limitation to Issue of Liability. The order granting a new trial limited to the issue of liability only is affirmed.
Appeal from Circuit Court of City of St. Louis. — Hon. James F. Nangle, Judge.
AFFIRMED.
Everett Hullverson and Alfred I. Harris for plaintiff-appellant; Orville Richardson of counsel.
(1) A charge of negligence under the humanitarian doctrine and a charge of primary negligence are not necessarily inconsistent and both may be submitted to a jury if, under the evidence upon which plaintiff is entitled to rely, mutual inconsistence does not appear. Haley v. Mo. Pac. Ry. Co., 197 Mo. 15, 93 S.W. 1120; Beal v. Chicago B. Q.R. Co., 285 S.W. 482, 487 [14]; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1, 3 [5-8]. (2) "Mutual inconsistence" means that evidence tending to prove one assignment will necessarily disprove the other. Charges are not mutually inconsistent if both are substantially supported by the same consistent set of facts. State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582; Bumgardner v. St. L. Pub. Serv. Co., 340 Mo. 521, 102 S.W.2d 594. (3) Primary negligence is consistent with negligence under the humanitarian doctrine "if the evidence was sufficient to authorize the submission of both." Williams v. St. Louis Pub. Serv. Co., 355 Mo. 335, 73 S.W.2d 199; — or "if they might both be true," Haley v. Mo. Pac. Ry. Co., 197 Mo. 15, 93 S.W. 1120, — or if proof of one will not necessarily disprove the other, State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582. — or if the duties are independent, may co-exist or concur. Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761. (4) The defendant's negligent failure to stop after discoverable peril arose was not necessarily inconsistent with its failure to have the brakes in good working condition. Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761. (5) There was substantial evidence to support one consistent set of facts under which defendant was guilty of primary and humanitarian negligence. This is true no matter which one of the two versions of the collision is adopted, since each presented a consistent state of facts warranting the submission of both charges. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Courtney v. Ocean Accident Guarantee Corp., 346 Mo. 703, 142 S.W.2d 858; Heitz v. Voss Truck Lines, Inc., 175 S.W.2d 583; Sing v. St. Louis-S.F. Ry. Co., 30 S.W.2d 37. (6) Plaintiff, a mere passenger in one of the automobiles, caught only a fleeting glimpse of the truck. Therefore, if there were two different versions of the collision, he could rely upon either version for any one consistent set of facts supporting a submission of both charges of negligence. Atterbury v. Temple Stephens Co., 353 Mo. 5, 181 S.W.2d 659; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390. (7) Under the Ramey-Weeks version of the collision the truck was traveling 20 m.p.h. and was 58 feet away when plaintiff entered a zone of discoverable imminent peril. The brakes were so defective as to require 35 feet to stop when the truck with good brakes could have been stopped in a distance variously estimated as 6, 10 and 20 feet. The brakes were actually applied when the truck was 21 feet away. Therefore, one consistent set of facts supported both charges of negligence, and each was properly submitted to the jury. (8) As to the charge concerning brakes: Anderson v. Asphalt Distributing Co., 55 S.W.2d 688; Plannett v. McFall, 284 S.W. 850; Steele v. Thomas, 231 Mo. App. 865, 101 S.W.2d 499; Weisman v. Arrow Trucking Co., 176 S.W.2d 37. (9) As to the humanitarian doctrine: Teague v. Plaza Express Co., 190 S.W.2d 254; Allen v. Kessler, 64 S.W.2d 630.
Wayne Ely for defendant-appellant Ozark Milk Service, Inc.; Everett Hullverson and Alfred I. Harris for respondent-appellant Secord Fisher; Orville Richardson of counsel.
(1) The court did not err in sustaining defendant's motion for a new trial on the ground that instructions 1 and 3 were inconsistent. Instruction 1 permitted the jury to find that defendant violated the humanitarian doctrine by failing to stop its truck when it had control of it, and Instruction 3 permits the jury to find that defendant was negligent because it did not have control of the truck. Both instructions directed a verdict for plaintiff. Crews v. Wilson, 287 S.W. 44; Tunget v. Cook, 84 S.W.2d 970; Elliott v. Richardson, 28 S.W.2d 408. (2) The court erred in giving Instruction 1, which submitted the case to the jury on the humanitarian theory. Elkin v. St. Louis Public Serv. Co., 74 S.W.2d 600; Bauer v. Wood, 154 S.W.2d 356; Miller v. Wilson, 288 S.W. 997; Riggs v. Kansas City So. Rys. Co., 220 S.W. 697; Roseman v. United Railways Co., 251 S.W. 104; Murray v. St. Louis Wire Iron Co., 238 S.W. 836. (3) The court erred in giving Instruction 3. Instruction 3 permitted the jury to find that defendant was negligent for not providing its truck with "two sets of adequate brakes, kept in good working order," as required by an ordinance of the City of St. Louis. The evidence was insufficient to justify the giving of Instruction 3. The instruction was therefore broader than the evidence and it was error to give it. (4) The court erred in giving Instruction 4, which did not limit the jury to the specific acts of negligence pleaded in plaintiff's petition, but directed the jury to return a verdict for plaintiff if they found that defendant was guilty of any negligence which "contributed and concurred" with any negligence of the driver of plaintiff's automobile "to cause plaintiff's injuries." Esstman v. United Rys. Co., 232 S.W. 725; Morris v. Seitrich, 118 S.W.2d 46. (5) There was no evidence that plaintiff's injuries were caused by negligence of defendant concurring and contributing with negligence of the driver of plaintiff's automobile. Esstman v. United Rys. Co., 232 S.W. 725; Morris v. Seitrich, 118 S.W.2d 46. (6) Defendant did not plead or charge that plaintiff was guilty of any negligence, contributory or otherwise, and there was no evidence touching upon the question of plaintiff's negligence. Therefore, Instruction 5 was broader than either the pleadings or the evidence, and raised a false issue in the case. Esstman v. United Rys. Co., 232 S.W. 725; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872: Morris v. Seitrich, 118 S.W.2d 46. (7) The court erred in refusing to declare a mistrial because of the improper argument, and in refusing to reprimand plaintiff's counsel, or to take other steps to overcome the prejudicial effect of the improper argument. Norris v. St. L.I.M. S. Ry. Co., 144 S.W.2d 783; Wilson v. Kansas City Public Serv. Co., 193 S.W.2d 5; Olian v. Olian, 332 Mo. 689, 89 S.W.2d 673; Kourik v. English, 340 Mo. 367, 100 S.W.2d 901; Clark v. Atchison Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079, certiorari denied 290 U.S. 701, 54 S.Ct. 229, 78 L.Ed. 693; Domineck v. Western Coal Mining Co., 255 Mo. 463, 164 S.W. 567; Chitty v. St. L., I.M. S. Ry. Co., 148 Mo. 64, 49 S.W. 868; Rytersky v. O'Brine, 70 S.W.2d 538; Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Pitcher v. Schoch, 345 Mo. 1184, 139 99 S.W.2d 463; Tuck v. Springfield Traction Co., 140 Mo. App. 335, 124 S.W. 1079; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482. (8) The court erred in giving Instruction 9. The evidence shows that plaintiff has lost no earnings, and fails to show that he is reasonably certain to suffer any future loss of earnings. (9) Instruction 9 assumes that plaintiff has incurred or become obligated for medical expense, and permits the jury to find for plaintiff on that account without requiring a finding that he has incurred any expense or become obligated therefor. DeMoulin v. Roetheli Kroger Grocery Baking Co., 189 S.W.2d 562; Robertson v. Wabash R. Co., 152 Mo. 352, 53 S.W. 1082; Duke v. Railroad Co., 99 Mo. 347, 12 S.W. 636; State ex rel. Kansas City Public Serv. Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428. (10) The Court did not err in giving Instruction 9 on the measure of damages. Before the accident plaintiff averaged between $75 to $100 as his share of earnings from a boarding and rooming house partnership in which he did considerable work requiring a sound body and mind. This accident rendered him totally and permanently disabled, an aged, crippled, helpless invalid with a shortened life needing future medical and nursing care. There was an abundance of substantial evidence to support a loss of future earnings. King v. City of St. Louis, 250 Mo. 501, 157 S.W. 498; Devoy v. St. Louis Transit Co., 192 Mo. 197, 91 S.W. 140; Mabrey v. Cape Girardean Jackson Gravel Co., 92 Mo. App. 596, 69 S.W. 394; Laycock v. United Railways Co., 290 Mo. 344, 235 S.W. 91; Gildersleeve v. Overstolz, 90 Mo. App. 518; Ganz v. Metropolitan St. Ry. Co., 220 S.W. 490; Northcutt v. St. Louis Public Serv. Co., 48 S.W.2d 89; Sinclair v. Columbia Tel. Co., 195 S.W. 558; Fishang v. Eyerman Contacting Co., 63 S.W.2d 30. (11) Mere proof of permanent injuries, coupled with future pain or impediment of function of the injured part, will authorize a submission of loss of future earnings even without the substantial affirmative showing here made. Byars v. St. L. Pub. Serv. Co., 334 Mo. 278, 66 S.W.2d 894; Dean v. K.C., St. L. C.R. Co., 199 Mo. 386, 97 S.W. 910; Taylor v. Terminal Railroad Assn., 112 S.W.2d 944. (12) Even if the evidence was not otherwise substantial, plaintiff was at least entitled to nominal damages, and since the instruction was in proper form defendant's failure to request a limiting instruction disables it from assigning error on appeal. Mabrey v. Cape Girardeau Jackson Gravel Co., 92 Mo. App. 596, 69 S.W. 394; Hancock v. K.C. Terminal Ry. Co., 339 Mo. 1237, 100 S.W.2d 570; King v. St. Louis, 250 Mo. 501, 157 S.W. 498; Taylor v. Terminal Railroad Assn. of St. Louis, 112 S.W.2d 944. (13) In any event, the submission of an unproved item of damages will not constitute reversible error, where, as here, the verdict should be approved without considering that item of damages. Long v. F.W. Woolworth Co., 159 S.W.2d 619. (14) This instruction did not assume without requiring a finding that plaintiff had incurred medical expenses, nor did it fix the amount thereof. It was supported by evidence. McDaniel v. Chicago, R.I. P. Ry. Co., 338 Mo. 481, 92 S.W.2d 118; Brouk v. United Wood Heel Co., 145 S.W.2d 475; Gentili v. Dimaria, 89 S.W.2d 93. (15) Even if such a submission was error, it could be cured by remittitur. De Moulin v. Roetheli, 189 S.W.2d 562. (16) No error, reversible or otherwise, was committed during the argument of plaintiff's counsel. Counsel have the right, in the interest of their clients, to argue to the jury, untrammeled by fear, unmolested by courts and uninterrupted by opposing counsel, every fair inference deducible from the evidence that has been developed during the progress of the trial for or against his clients. Wide latitude should be allowed in arguing a case to the jury. Gidionsen v. Union Depot Ry. Co., 129 Mo. 392, 31 S.W. 800; Gillioz v. Mo. State Highway Comm., 350 Mo. 1077, 169 S.W.2d 901; Evans v. Trenton, 112 Mo. 390, 20 S.W. 614; Mooney v. Terminal Railroad Assn. of St. Louis, 358 Mo. 1080, 186 S.W.2d 450. (17) The burden of showing prejudice is upon the appellant. Jones v. St. Louis-S.F. Ry. Co., 333 Mo. 802, 63 S.W.2d 94. (18) Where an objection or motion to disregard an argument has been sustained, the trial court has committed no error. State ex rel. Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d 132; Mooney v. Terminal Railroad Assn. of St. Louis, 353 Mo. 1080, 186 S.W.2d 450. (19) So much of the argument as was provoked or in retaliation can not be considered prejudicial, even if improper, which it was not. Sullivan v. St. Louis-S.F. Ry. Co., 12 S.W.2d 735; Nelson v. Heine Boiler Co., 323 Mo. 826, 20 S.W.2d 906; Rainier v. Quincy, O. K.C.R. Co., 271 S.W. 500. (20) The trial judge has a large measure of discretion in controlling argument of counsel and in ruling on motions for the drastic penalty of a mistrial. To that discretion appellate courts defer unless it appears that the protested arguments so patently pass legitimate bounds as to be manifestly prejudicial and the ruling of the trial court thereon a clear abuse of discretion. Kelley v. Ill. Cent. R. Co., 352 Mo. 301, 177 S.W.2d 435; Goyette v. St. Louis-S.F. Ry. Co., 37 S.W.2d 552; Mooney v. Terminal Railroad Assn. of St. Louis, 358 Mo. 1080, 186 S.W.2d 450. (21) The court did not err in refusing to declare a mistrial because of plaintiff's counsel's argument that "I think the National Surety Corporation was wise in selecting Mr. Ely to defend this case"; and the further argument that "If you don't want to dispose of these things, of course, you have got to defend them . . ." Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Gettys v. American Car Foundry Co., 322 Mo. 787, 16 S.W.2d 85; Bobos v. Krey Packing Co., 323 Mo. 224, 19 S.W.2d 630; Lankford v. Thompson, 189 S.W.2d 217; Ternetz v. St. L. Lime Cement Co., 252 S.W. 65; Flori v. Dolph, 192 S.W. 949; Douglas v. Lang, 124 S.W.2d 642; Kingsley v. Kansas City, 166 Mo. App. 544, 148 S.W. 170. (22) The court did not err in refusing to declare a mistrial because of plaintiff's argument that his friends were under no obligation to take care of him and that defendant had no right to say to a man who might become a burden to others that maybe the State of Missouri or the poor house would relieve defendant of its burden to pay damages. Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969, 976[15]; Nelson v. Heine Boiler Co., 323 Mo. 826, 20 S.W.2d 906; Douglas v. Lang, St. L.A., 124 S.W.2d 642, 647[8]; Ranier v. Quiney, O. K.C.R. Co., Mo. Sup. 271 S.W. 500, 504 [8-10]; Irons v. American Ry. Express Co., 318 Mo. 318, 300 S.W. 283, 292 [17]; Crews v. K.C.P.S. Co., 341 Mo. 1090, 111 S.W.2d 54, 62 [11, 12]; Kelso v. W.A. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527, 541 [27-29]. (23) The court did not err in refusing to declare a mistrial because of plaintiff's counsel's argument concerning plaintiff's mental condition. The verdict is not excessive. (24) The evidence must be viewed in that light most favorable to plaintiff. Each case rests on its own facts. Judicial notice can be taken of the deflated purchasing power of the dollar and low available interest rates of safe investments. The jury and trial court are the primary agencies for fixing damages and have a measure of discretion in that respect. An appellate court will not order a remittitur unless the verdict goes unmistakably beyond the bounds of reason or is so glaringly unauthorized as to shock the judicial sense of right. Williamson v. Wabash R. Co., Mo. Sup., 196 S.W.2d 129, 134[8]; Joice v. M.K.T.R. Co., Mo. Sup., 189 S.W.2d 568, 577[29]; Baker v. Chic., B. Q.R. Co., 327 Mo. 986, 39 S.W.2d 535, 546[17]. (25) Injuries to persons over 70, usually involving only one fractured hip. Devoy v. St. Louis Transit Co., 1905, 192 Mo. 197, 91 S.W. 140, 148 [6]; Byars v. St. Louis Public Service Co., 1933, 334 Mo. 278, 66 S.W.2d 894, 902 [9]; Summa v. Morgan Real Estate Co., 1942, 350 Mo. 205, 165 S.W.2d 390, 396[15]; Hill v. Montgomery, 1943, 352 Mo. 147, 176 S.W.2d 284, 288 [6]. (26) Injuries to younger persons, usually involving only one fractured hip. Margulis v. National Enameling Stamping Co., 1929, 324 Mo. 420, 23 S.W.2d 1049, 1052[5]; Berry v. B. O.R. Co., Mo. Sup. 1931, 43 S.W.2d 782, 790[12]. (27) Injuries usually involving only the head. Emerson v. Mound City, Mo. Sup. 1930, 36 S.W.2d 766, 767[3]; Goldbaum v. James Mulligan Printing Pub. Co. 1941, 347 Mo. 844, 149 S.W.2d 348, 352[5]; Colwell v. St. Louis-San Francisco Ry. Co., 1934, 355 Mo. 494, 73 S.W.2d 222, 227 [10]. (28) Injuries usually involving only an aggravated spinal arthritis. Rosenberg v. Terminal R. Ass'n, Mo. Sup. 1941, 159 S.W.2d 633, 636 [5]; Brady v. Terminal R. Ass'n., banc 1939, 344 Mo. 502, 127 S.W.2d 1; De Moulin v. Roetheli, Mo. Sup. 1945, 189 S.W.2d 562, 567[16]. (29) Injuries usually involving only one shoulder, arm or hand. Greenan v. Emerson Elec. Mfg. Co., Mo. Sup. 1945, 191 S.W.2d 646, 652[11, 12]; Wellinger v. Terminal R. Ass'n, 1944, 353 Mo. 670, 183 S.W.2d 908, 913 [6]; Varley v. Columbia Taxicab Co., Mo. Sup. 1922, 240 S.W. 218, 224 [13-14].
Action for damages for personal injuries alleged to have been caused by defendant's negligence. Plaintiff obtained a verdict for $10,000 and defendant was granted a new trial "as to the liability only." Both parties have appealed.
On September 3, 1945, about 1 P.M., plaintiff was riding as a guest in the rear seat of a 1938 Ford automobile (two door sedan), which was being driven east on Taft Avenue in the City of St. Louis. He was severely injured when defendant's 2½ ton International truck, being operated south on Virginia Avenue, collided violently with the left rear side of the automobile. Other facts will be stated in the course of the opinion.
Only one assignment in the defendant's motion for a new trial was sustained, towit, that "the court erred in submitting the case to the jury on the theory that defendant had violated the humanitarian doctrine, and on the further theory that defendant was guilty of primary negligence, as set forth in Instructions 1 and 3 . . ." All other assignments were overruled.
Instruction 1 submitted defendant's negligence in failing to slacken the speed of the truck, stop it or swerve it to the right and avoid the collision after discoverable peril arose. Instruction 3 submitted primary negligence, towit, defendant's failure to provide the truck with two sets of adequate brakes, kept in good working order as required by an ordinance of the City of St. Louis. Plaintiff insists that the court erred in granting a new trial on the ground stated, while defendant contends that a new trial was properly granted, as to liability, because Instructions 1 and 3 were unsupported by evidence, the two instructions were inconsistent, and Instructions 4 and 5 were erroneous. Defendant further contends the court erred in refusing a new trial on the issue of damages because the verdict was grossly excessive, instruction 9, on the measure of damages, was erroneous and the court erroneously refused to declare a mistrial on account of improper argument.
Virginia Avenue has a downgrade to the south, while Taft Avenue is slightly upgrade to the east. Both streets are 35-40 feet wide and black top paved, except that on Virginia there is a double set of street car tracks with brick paving from outside rail to outside rail. The streets were dry and the sun shining. Plaintiff's witness, Ramey, the owner and operator of the Ford, testified that he entered the intersection at 10 or 12 miles per hour, with the left side of the Ford 20 feet from the north curb line of Taft; and that when the front of his car was at the west curb line of Virginia, he saw defendant's truck 75 to 85 feet north of him, 55 to 60 feet north of the intersection, with its left side near the center of Virginia and approaching at 15 or 20 miles per hour. There was no other traffic and, since the truck was approaching from his left and he had the right of way and was reasonably sure he "could beat" the truck, he "stepped on the gas," increased his speed to about 15 miles per hour, and proceeded. When he looked towards the truck again, it was within 6 feet of the Ford — with the driver of the truck about even with the front seat of the Ford. The collision occurred when the front of the Ford was within 6 or 7 feet of the east curb of Virginia. The truck hit the Ford immediately back of the left door, caved in the left side and left rear fender, and turned it completely around. The truck crossed to the south line of the intersection.
Ramey said the truck didn't increase speed, but that "from deductions" it must have increased its speed; that the Ford traveled 30 or 35 feet at 10 or 12 miles per hour, after he first saw the truck, and less than half the distance the truck traveled. "The truck got faster," perhaps to 20 miles per hour. To have reached the point of collision, with the Ford's increase of speed to 15 miles per hour or a little less, the truck would have had to increase its speed to 25 or 30 miles per hour, "maybe that could have happened." He thought it must have happened, otherwise he should have cleared the path of the truck. When he first saw the truck, he was 7 to 10 feet west of the west curb line of Virginia, and the Ford moved only 12 to 15 feet, until some part of it was in front of the truck. About half of the length of the Ford had cleared [307] the path of the truck before the collision. The center point of the collision occurred 17 feet out in Virginia Avenue. All distances were estimates as he took no measurements.
Mr. Weeks, a passenger in the Ford, testified for plaintiff that the Ford entered the intersection at 10 miles per hour and maintained that speed; that, when the front wheels of the Ford were on the west rail of the southbound street car track and 10 or 12 feet cast of the west curb of Virginia, he saw the truck 35 to 40 feet to the north approaching at 20 miles per hour; that the truck did not swerve or slacken speed; and that, between the time he first saw the truck and the moment of the collision, the Ford had moved 20 feet farther cast. Mrs. Weeks said the truck was, perhaps, 15 feet away when the front of the Ford was over the first street car rail.
Defendant's driver, Ogle, a witness for defendant, testified he was going south on Virginia, astraddle the west street car rail, at 15 miles per hour, and when he was 4 feet into the Taft Avenue intersection, he saw the Ford come out of Taft Avenue, traveling about 30 miles per hour and he (Ogle) "hit the brakes" and no more than he hit the brakes he hit the Ford. He "wouldn't say for sure" that the truck entered the intersection first, but when the nose of his truck was at the north curb line of the intersection, the Ford was a little bit west of the intersection, and the automobile ran across 5 or 6 feet in front of the truck. "The truck was stopped just as it hit the car about. Maybe it might have went a foot or two past where I hit the car." It didn't hit the Ford hard enough to knock it completely around. He slackened speed at the time he put on his brakes. On cross-examination he said he didn't see the Ford until it was in front of him, 4 feet, or 4 or 5 feet away, about in the middle of the street, where it was hit. He "saw it just a little bit" before he hit it. He wasn't looking the way the Ford entered, but was looking at a motorcycle which had stopped, headed west, on Taft Avenue on the east side of Virginia. He looked to the right, when he was about 5 feet from the north curb line of Taft. The first time he saw the Ford, the "whole car itself was into Virginia past the curb line."
The truck was equipped with vacuum hydraulic brakes, with a booster "that makes them better than just ordinary hydraulic brakes." They stop very fast. The truck was in "good condition." Ogle "wouldn't say" the brakes were "in perfect condition, but they were in pretty good condition. Good enough to stop it, but not that quick," not within 5 or 6 feet at 15 miles per hour. He stopped at different places that day. The brakes worked all right — stopped it all right. They "were down a little ways, but not enough to hurt." Would make some difference in stopping, "maybe a foot or two." He didn't have to press twice before they really took good action, because he "drove them touch type." There was no leakage of any kind in the brakes. "All it needed was the shoes needed setting out at the drums. That kept the pedal from going all the way down." That would make them hold better and you could stop faster, but "not very much." At 15 miles an hour with "those vacuum hydraulic brakes" he could stop that truck in "5 or 6 feet, something like that," "I imagine so", "about as far as from here to that table," about 10 feet. The brakes should have been adjusted and he was "going to have that done." There was no evidence concerning the presence or absence of other brakes.
One Williams claimed that he inspected the brakes four days before the collision and found them in "fair" working condition, would lock the wheels when the pedal was 1¼ inches from the floor. To be safe the pedal must stop one inch from the floor. He said he could bring "a two and one-half ton International truck to a stop from 15 miles per hour, on a dry street like Virginia "with the brakes in good condition," in 15 feet and, at 20 miles per hour, in 20 feet.
Defendant contends that there was no evidence the truck could have been turned to the right, or that if it could have been, the collision could have been avoided; and that it was physically impossible for the collision to have occurred under the facts (speeds and distances) stated by Ramey. [308] Defendant further says "there was no evidence in the record as to the distance within which the truck could have been brought to a stop with the brakes in the condition they were in at the time of the collision and no evidence as to the distance required to stop from a speed of thirty-five miles per hour."
Williams did give stopping distances for such a truck with "good brakes" at speeds of 15 and 20 miles per hour. Ogle fixed the stopping distance for this truck with "these brakes" at 15 miles per hour and fully described the brakes and made comparisons. There was further evidence showing the distance within which the truck was stopped on this occasion. The maximum speed of the truck that could have been inferred from the evidence was not so far removed from 20 miles per hour that the jury could not have determined stopping distances from the evidence before it. The evidence concerning the difference between "these brakes" and good brakes was not such that the jury could not determine stopping distances at these speeds with the brakes on the truck at the time of the collision. Specific and direct evidence was not required where the evidence was such that the required inferences could be drawn.
Considered favorably to the plaintiff, the evidence shows that the Ford entered the intersection in plain view of the approaching truck. The truck was then 75 to 85 feet away, with its left side near the center of the street. The Ford moved directly into the path of the truck at a speed of 10 or 12 miles per hour and did not decrease its speed. When the front wheels of the Ford reached the west rail of the southbound tracks the truck was 35 to 40 feet away and moving at 20 miles per hour. A violent collision occurred. Plaintiff was in discoverable peril prior to the time the Ford reached the path of the truck and when the truck was a sufficient distance away to have been stopped with the appliances at hand. The conflicts in the estimates of speed, distances and stopping distances were for the jury. Plaintiff was not bound by Ramey's testimony in view of the testimony of other witnesses. The Ford was in motion and lacked only 6 or 7 feet of clearing the path of the truck. The collision happened near the center of the intersection and there was no other traffic. Only a slight slackening of speed or swerving to the right, possible under the evidence, would have avoided the collision Substantial evidence supports every one of the constitutive elements of the humanitarian doctrine on every issue submitted by Instruction 1. Wright v. Spieldoch, 354 Mo. 1076, 193 S.W.2d 42; Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W.2d 254.
Were the charges of negligence submitted by Instructions 1 and 3 necessarily inconsistent, conflicting and contradictory? We need not determine whether substantial evidence supports Instruction 3. Plaintiff contends that discoverable peril arose while the defendant had time, distance and ability to stop with bad brakes; that humanitarian negligence in not stopping or slackening speed concurred with defendant's subsequent inability to stop on account of negligence in having bad brakes; that the charges of negligence are not necessarily inconsistent; that both charges are supported by one consistent state of facts showing primary and humanitarian negligence; that proof of one charge did not disprove the other; and that there was no error in submitting both charges to the jury. Plaintiff further says that "if the object struck was over 15 feet away when the brakes were applied, then the defective condition of the brakes was a proximate cause of the collision." Plaintiff contends that, if the brakes could have been adjusted so as to make a difference of "maybe a foot or two" in stopping, the jury could find that, the "additional distance required because of defective brakes was the difference between horrible injury and safety." Plaintiff argues that "Ogle actually saw the Ford while still far enough away to stop with good brakes, and failed in his belated attempt because of bad brakes"; and that "if the brakes had been in good condition when applied 17 feet from the collision they would have stopped the truck 2 feet short of the collision." Plaintiff relies upon cases holding that a charge of negligent failure to stop under the humanitarian doctrine and a charge of negligent speed are [309] not necessarily inconsistent, as where the unlawful speed was not such that the operator of the vehicle could not have stopped after discoverable peril arose. Williams v. St. Louis Public Service Co., 335 Mo. 335, 73 S.W.2d 199, 203; Haley v. Mo. Pac. R. Co., 197 Mo. 15, 93 S.W. 1120. Also, Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761, 765 (unlawful speed and failure to slacken speed). Plaintiff says that defective brakes have the same effect as excessive speed in that a longer distance is required for stopping.
Of course, an automobile may be moving at a rate of speed that under the circumstances (or by ordinance) is negligent, and still the driver may be able, by the exercise of the highest degree of care, to stop it (after discoverable peril) and avoid a collision. In such case the negligent speed and the negligent failure to stop could both operate as concurring causes at the moment of collision. In this case Instruction 1 predicated a verdict upon ability to stop or slacken speed and avoid the collision after discoverable peril arose, while Instruction 3 predicated a verdict upon inability to stop due to defective brakes. One necessarily submitted failure to stop when the driver could stop, as the proximate cause of injury, while the other submitted failure to stop when the driver could not stop because of bad brakes. The ability to stop with defective brakes necessarily terminated before the inability to stop on account of defective brakes began. Ability and inability to avoid the collision did not exist at the same time. We think that Instructions 1 and 3 were mutually inconsistent. Proof of the facts hypothesized by one, as a direct and producing cause of the injury necessarily disproved the facts hypothesized by the other as the producing cause of the injury. The two submissions are mutually inconsistent and could not be true at the same time. The court did not err in granting the new trial. Crews v. Wilson, 312 Mo. 643, 281 S.W. 44; Elliott v. Richardson (Mo. App.), 28 S.W.2d 408; Tunget v. Cook (Mo. App.), 84 S.W.2d 970 (writ of certiorari quashed, State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1). It will be unnecessary to consider other assignments by defendant in support of the order granting a new trial on the issue of liability. The matters complained of as objectionable may be avoided on a retrial of the cause.
Did the court err in refusing a new trial on the issue of damages? Plaintiff was 78 years of age, and was seated on the left hand side of the rear seat of the automobile, immediately adjacent to the point of collision. His head struck and broke the glass in the car window and partly extended out of the window after the crash. He was taken to a hospital where he remained for five weeks. His head was severely bruised and he had a rather serious concussion, or brain injury without demonstrable fracture, but evidenced by impaired mental condition. For sometime he was "flighty", his talk "misjointed", and he had an idea he had had a mix-up with horses. He suffered from "traumatic neurosis." This condition improved some, but "the future is doubtful." He had six major comminuted fractures of the pelvic bone (two affecting the thigh bone socket), a fracture of the left collarbone, and two fractured ribs. The pelvic injuries caused loss of control of the bladder and paralysis of the bowels for several weeks and plaintiff's stomach was distended. He was placed in a fracture bed for four weeks and had to have sedatives every night for awhile. The pelvic fractures will never entirely heal, they are permanent, but there has been a fiberous union. His injuries will intensify an arthritic condition in his back, causing traumatic arthritis. On account of his grave condition after the collision, his collarbone was not set, but was permitted to heal with overlapping, or complete displacement, resulting in some deformity and loss of use. The rib fractures have healed with a 1/8 inch displacement in one rib. Plaintiff's mental condition was good before his injury and, outside of an asthmatic cough, he was in good physical condition, particularly for his age. The cough is a little more pronounced now. His injuries are such that he will never be able to get on and off street cars, move about the streets or do work of that character. [310] His mental condition at times will not permit him to keep books or make purchases. He will require medical attention and care in the future. He has complained of some pain, and now has pains in his leg and back. His back hurts when he gets up. At times he has dizzy spells and soreness in his back. He can't sleep with his legs stretched out flat because of pain. The effect of all his injuries will be to shorten his life. He won't be able to manage his own affairs or "manage a lot of little things he formerly probably could." He uses crutches at home, but appeared in court with a cane. He had done absolutely nothing from the time of injury to the time of the trial. (Loss of future earning and medical expense is discussed later). In view of plaintiff's physical injuries, resulting physical condition and other losses, the verdict is not excessive. Age alone is not controlling. Devoy v. St. Louis Transit Co., 192 Mo. 197, 221, 91 S.W. 140, 148; Brucker v. Gambaro (Mo. Sup.), 9 S.W.2d 918, 922; Hill v. Montgomery, 352 Mo. 147, 176 S.W.2d 284, 288.
Instruction 9 authorized the jury in assessing damages to allow plaintiff reasonable compensation for "loss of earning, if any, . . . plaintiff is reasonably certain to suffer in the future . . . on account of said injuries . . . not exceeding the sum of $100 per month . . . and "for such medical attention and hospital care plaintiff has received . . . not exceeding sum of $850 on this item."
About six years before the date of the collision, plaintiff's niece Mrs. Gerber and a Mr. Carroll purchased a building in St. Louis and plaintiff, with the two others, operated a boarding and rooming house on some type of partnership basis, but with no employees. Plaintiff fixed rent rates, collected rent, laundry and phone calls from tenants, deposited the money received, paid the bills, took care of the furnace and hot water heater, assisted in buying groceries and supplies, dealt with the O.P.A., made ordinary repairs about the building and prepared and filed income tax returns. At one time plaintiff had been a railroad auditor and later a traffic manager. Plaintiff received his board, clothes and a share of the partnership income, which was divided three ways, but with no regular distribution or withdrawals. Plaintiff fixed the value of his earnings at $75 to $100 per month. After he was injured, the other partners did his part of the work.
Defendant contends the evidence fails to show that plaintiff "is reasonably certain to suffer any future loss of earnings," particularly since the partnership is still in existence, the partners have the same tenants they had before plaintiff was injured and no reduction of income or increase of expense was shown. Defendant says that mere conjecture or likelihood, or even probability of loss of future earnings will not sustain an allowance of damages.
In view of plaintiff's disability, which has totally incapacitated him to date and will reasonably incapacitate him in the future, the jury could infer and find that plaintiff will suffer a loss of earning in the future, whether in or out of the partnership. It is not reasonable to believe that the partnership will continue indefinitely under present circumstances, or that, if it does, the partnership, with one partner seriously incapacitated, will continue to earn as much as when plaintiff was actually contributing thereto. The evidence was sufficient to support the instruction on the issue of loss of earnings in the future. Byars v. St. Louis Public Service Co., 334 Mo. 278, 66 S.W.2d 894, 903(11); Taylor v. Terminal Railroad Association of St. Louis (Mo. App.), 112 S.W.2d 944, 948(3).
Did the instruction erroneously permit the jury to assess damages for medical attention and hospital care "without requiring the jury to find plaintiff had incurred or become obligated for any such expense?" Defendant cites De Moulin v. Roetheli and Kroger Groc. Baking Co., 354 Mo. 425, 189 S.W.2d 562, 568 (instruction directing verdict for specified amount); Robertson v. Wabash R. Co., 152 Mo. 382, 390, 53 S.W. 1082 (absence of evidence and error in admission); and Duke v. Mo. Pac. R. Co., 99 Mo. 347, 351, 12 S.W. 636 (no evidence of value or attendant circumstances). The cases are not controlling. Dr. John A. Konzelman was [311] engaged in general practice, as a physician and surgeon. He was "called to treat" plaintiff at the City Hospital and had plaintiff removed to the Deaconess Hospital. Dr. Konzelman had charge of plaintiff's case, as "attending physican," and $350 to $400 was "a reasonable charge" for services rendered plaintiff. Plaintiff's total bill for care at the Deaconess Hospital was $399.75. Statements were issued from time to time. Plaintiff was not physically able or mentally competent to look after the payment of the bills and Mr. Carroll attended to their payment. The evidence shows that the medical attention and hospital care, if any, was furnished to and received by plaintiff under such circumstances as the law would imply an obligation to pay its reasonable value. McDaniel v. Chicago, R.I. P. Ry. Co., 338 Mo. 481, 92 S.W.2d 118, 121; Gentili v. Dimaria (Mo. App.), 89 S.W.2d 93, 97. If the jury found that the medical attention and hospital care, as shown by the evidence, was in fact received by plaintiff they could properly allow damages to reasonably compensate him for the medical attention and care so received. The instruction was not erroneous.
Defendant says "the court erred in refusing to declare a mistrial because of improper argument, and in refusing to reprimand plaintiff's counsel, or to take other steps to overcome the prejudicial effect of the improper argument." Defendant insists that it didn't have a fair trial and attribute the amount of the verdict to prejudicial and improper argument resulting in a verdict so excessive as to show prejudice and passion and requiring reversal.
Space does not permit a full discussion of the assignment, but a careful reading of the whole record shows that the difficulty complained of arose out of Mr. Hullverson's attempt to reply to Mr. Ely's argument to the effect that the jury could not allow plaintiff anything for loss of future earnings unless it was "reasonably certain," plaintiff's "guardian angel," Mr. Carroll, was going to "kick him out" of the partnership arrangement. Defendant's counsel asked the court to reprimand counsel for making a certain statement objected to and to declare a mistrial. The court directed the jury to disregard the statement and denied other relief. Some other requests were refused. Under all of the facts and circumstances shown by the record, no prejudice to defendant appears. The court did not abuse its discretion by the rulings complained of.
The order granting a new trial "as to the liability only" is affirmed and the cause remanded. Bradley and Van Osdol, CC., concur.
The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.