Opinion
No. 41418.
March 13, 1950. Motion for Rehearing or to Transfer to Court en Banc Denied April 10, 1950.
APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
Moser, Marsalek, Carpenter, Cleary Carter, F. X. Cleary, J. C. Jaeckel, St. Louis, for appellants.
Leo J. Rozier, Perryville, and Dearing Matthes, Will B. Dearing, Hillsboro, for respondents.
Plaintiff Jacquelyn E. Austin, through her mother as natural guardian, filed this suit against the defendants seeking damages for the death of her father who lost his life in a collision of a car which he was driving and a bus owned and operated by the defendants. A trial resulted in a verdict in plaintiff's favor in the sum of $12,000. From the judgment entered the defendants appealed.
The defendants are Jewel Brooks Hemperley, personally and as tutrix of Robert F. Hemperley, Jr., and Dorothy Dean Hemperley, doing business as St. Louis-Cape Bus Lines, as owners of the bus, and George Dale Holmes, the driver of the bus at the time of the collision.
The sole question presented on this appeal is whether plaintiff's verdict was justified under the humanitarian doctrine.
A brief statement of the facts will be sufficient. On the afternoon of December 15, 1947, the defendant Holmes was driving a bus owned by the defendant St. Louis-Cape Bus Lines from St. Louis, Missouri, to Cape Girardeau, Missouri, over Highway 25. The evidence disclosed that rain began to fall about noon of that day. The weather turned colder during the afternoon and the rain turned into snow causing the highway to be "slushy" and later the snow became packed in spots on the road. Due to the condition of the road the bus was delayed. At about 6:15 p. m. the bus reached a point a mile or two south of Perryville, Missouri, where it collided with a car being driven by plaintiff's father. The evidence revealed that the collision occurred on a sweeping curve about a half mile in length. The curve was to the right for southbound traffic and to the left for northbound traffic. Highway 25 at this point was a two lane, concrete road about 20 feet wide. It was banked so that the outer or east side was higher than the inside or west side of the curve. The collision occurred about the center of the curve. Plaintiff's mother, who was riding with decedent, testified that she first saw the bus when it was about 350 feet or an ordinary city block away. She stated that about that time the car in which she was riding gradually slid to the west side of the pavement; that it continued on that side and her husband tried desperately to get it back on the east side. She stated that the car was traveling about 15 or 20 miles per hour but slowed down after it skidded to the west side of the road. She testified the bus was going about 30 miles per hour and at no time slackened speed or swerved before the impact.
A Mrs. Nelson, a passenger on the bus, testified that somewhere along the road before the collision, she noticed a truck across the highway and the bus, along with other cars, was delayed a few minutes. She did not see the car with which the bus collided. She noticed no slackening of speed nor swerving of the bus before the impact.
The defendant Holmes in a deposition stated that he was driving the bus at a speed of 30 or 35 miles per hour; that the collision occurred about a mile or so south of Perryville. When asked about stopping the bus, he stated as follows: "A. Yes, it traveled, I would say, approximately, from the time I touched my brakes until the impact, I would say between 15 and 20 feet.
"Q. At the time of the impact you were going five miles an hour? A. Yes.
"Q. At the time you hit your brakes, you were going 30 miles an hour? A. Approximately."
At the trial he testified that he first saw the car when it was 100 feet away; that it made a little swerve to the west side of the pavement and got back and then suddenly "flew over" to the west side. The examination continued as follows:
"Q. What did you do when you saw this automobile make this first move? A. I took my foot off the accelerator.
"Q. What did you intend to do at that time? A. I wanted to see what he was going to do.
"Q. What course did the automobile pursue after that? A. He did go out of control and came on my side of the road.
"Q. Did the collision occur on your side of the highway? A. Yes, sir.
"Q. Will you tell the jury whether the bus was wholly on your side of the highway on the concrete itself or partly on the shoulder? A. At the time of the collision?
"Q. Yes, sir. A. the front wheels on the right side were on the shoulder.
"Q. To go to the shoulder, would that have a tendency to make you stop quicker than if you remained on the highway itself? A. Yes, sir.
"Q. Could you have applied your brakes fully when you first saw this automobile? A. No, sir.
"Q. Why not? A. Because I was out in the pavement where it was slick when I first saw him. If I applied the brakes I probably would have slid myself."
Plaintiff introduced evidence by two experienced bus drivers who stated that a bus (similar to the one Holmes was driving) traveling at a speed of 30 miles per hour could be stopped within 100 to 125 feet in circumstances similar to those of December 15. Holmes did not deny that a bus could be stopped within that distance. He stated he slowed the bus from 30 miles per hour to 5 miles per hour within 20 feet.
We are of the opinion that the evidence justified a submission of the case to a jury; also, that a jury was warranted in finding that the driver of the bus was negligent under the humanitarian doctrine. The evidence, including that of defendant Holmes, justified a finding that the bus could have been stopped within 100 feet. The evidence further justified a finding that the deceased was in peril when the bus was at least 200 feet from the car; and, that Holmes could have in the exercise of ordinary care discovered deceased's peril. We call particular attention to the following evidence. The bus was seen by an occupant of the car from a distance of about 300 feet. The car slid to the west side of the road when the bus was 200 feet or more away and the car remained on the west side of the road until the collision. The bus driver could have discovered the car long before he did; he knew the dangerous condition of the road; he had shortly before been compelled to stop his bus because a truck had skidded across the highway.
The appellants argue that because of the snow Holmes could not determine whether the car was on the west side of the road or not. Holmes did not so testify. He stated the car swerved to the west side. So, he could and did determine where the middle of the road was. We call attention to the fact that plaintiff's mother and a witness for the defendant (a passenger on the bus) testified the bus did not slacken speed before the impact. We note that when Holmes was asked what he intended to do when he saw the Austin car skidding, he answered, "I wanted to see what he was going to do." The jury had the right to conclude that it was the duty of Holmes to act and not to wait to see what course the Austin car would take. A jury could well conclude that, in the circumstances, Holmes had no right to assume that the car would go back to the east side of the road.
The above facts fully justified a verdict for the plaintiff. We call attention to the following cases: Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142, loc. cit. 146(5); Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482, loc. cit. 485(6); Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593, loc. cit. 596(3-5); 45 C.J. 989, Sec. 541.
Appellants cited a number of cases which we have examined. We find nothing in them in conflict with our ruling in this case. See Swain v. Anders, 235 Mo.App. 125, 140 S.W.2d 730; Sevedge v. Kansas City, St. L. C. R. Co., 331 Mo. 312, 53 S.W.2d 284.
We have concluded that the verdict was amply supported by evidence, and, therefore, the judgment must be and is hereby affirmed.
Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.