Opinion
April 7, 1930.
1. CONTRIBUTORY NEGLIGENCE: Unlighted Automobile. Unless the failure of plaintiff to place lights on his motor truck, stalled in the nighttime by the roadside, was a proximate or efficient cause of his injury, received when defendant drove his car into the truck, plaintiff's action for damages is not barred by the statute (Laws 1921, 1st Ex. Sess., p. 95) requiring a motor vehicle, while on a highway, whether in operation or at rest, to carry lighted signal lamps during the period from one-half hour after sunset to one-half hour before sunrise.
2. ____: Running into Unlighted Truck. If the driver of an automobile saw the unlighted truck parked on the roadside and negligently ran into it, the negligence of the owner of the truck in failing to have the truck lighted did not contribute to his injury; and where there is substantial evidence that he could easily have seen the truck in ample time to have avoided running into it, the question whether his negligence was the proximate or an efficient cause of the owner's injury is one for the jury.
3. ____: Humanitarian Rule: Automobile. The driver of an automobile on a highway is under statutory duty to exercise the highest degree of care and to keep a constant lookout and see whether any person or object is in the path of his progress; and where the road was straight, and the evidence indicates that the lights on defendant's automobile shone on the bulky truck parked by the roadside from the time he came within 150 or 200 yards of it, that nothing prevented his seeing it, that he might have seen it by the bright moonlight, that he could easily have swerved to one side and avoided hitting it, and that without halting or swerving he ran into it and injured the owner, a case is made for the jury under the humanitarian doctrine.
4. ____: ____: Pleading. There is ordinarily no necessary inconsistency between allegations of primary negligence and allegations of negligence under the humanitarian rule; and the petition in this case, after pleading primary negligence, pleaded all the constitutive facts of a cause of action under the humanitarian rule, and there being no demurrer to the petition or an attack upon it by motion or otherwise, the allegations of primary negligence did not destroy the allegations stating a cause of action under that rule, and the evidence being sufficient to support a verdict under those allegations, the cause should have been submitted to the jury under that rule.
Appeal from Phelps Circuit Court. — Hon. William E. Barton, Judge.
REVERSED AND REMANDED.
Dale E. Montgomery and Lorts Brower for appellant.
(1) It is consistent with good pleading to draw a petition "broad enough to authorize a recovery upon one or two theories under the law, accordingly as the facts may warrant," (a) that the defendant was negligent and the plaintiff was not guilty of negligence contributing to his injury and (b) stating a cause of action under the so-called humanitarian doctrine. Degonia v. Railroad, 224 Mo. 586. The petition was so drawn and was broad enough to authorize a recovery under either the general charge of negligence or under the so-called humanitarian or last-chance doctrine, the evidence warranting. Schroeder v. Wells, 276 S.W. 60. The evidence was sufficient to carry the case to the jury under both theories, and the court was clearly in error in sustaining a demurrer to the evidence and refusing to allow a recovery under either theory. (a) Concerning the first theory or charge of general negligence, the law provides that "every person operating a motor vehicle on the highways of this State shall drive the same in a careful and prudent manner and shall exercise the highest degree of care, and at a rate of speed so as not to endanger the property of another or the life or limb of any person." Sec. 19, Laws 1921, 1st Ex. Sess., p. 91. The facts clearly convict defendant of negligent operation of his car at the time he injured appellant. Huddy on Automobiles, 377; West Construction Co. v. White, 172 S.W. 301; Knoxville Railroad v. Vangilden, 178 S.W. 1117. When lights from a third car blind the driver so that he cannot see the road, he should stop. Topper v. Maple, 165 N.W. 28; Buzick v. Todman, 162 N.W. 259; Jolman v. Alberts, 158 N.W. 170. The only negligence which could be charged against appellant is his failure to have the required parking lights on his truck, but failure in that regard alone would not constitute such contributory negligence as would preclude a recovery. It remains a question for the jury whether such failure directly contributed to his injury. Kopper v. Bernhardt, 103 A. 186; Decon v. Dexheimer, 73 A. 49; Ireson v. Cunningham, 101 A. 49. (b) The rule under the last-chance doctrine has been defined by this court in Klockenbrink v. Railroad, 172 Mo. 678, and Schroeder v. Wells, 276 S.W. 64. The foregoing cases when applied to the facts of this case at bar, show conclusively that the court was in error in refusing to submit the case to the jury. Under this doctrine, the continuing negligence of plaintiff up to the moment of the accident is no defense. Banks v. Morris Co., 302 Mo. 254.
Hiett, Lamar Covert for respondent.
(1) The collision occurred about nine P.M. on July 20, 1926. Plaintiff at the time of the collision and for some time prior thereto had his truck parked on a public highway without lights of any kind upon it, in direct violation of Sec. 22, p. 95, Laws 1921, 1st Ex. Sess., p. 95. The plaintiff was guilty of negligence per se. Beck v. Coal Hauling Co., 293 S.W. 449; Myers v. Nissenbaum, 6 S.W.2d 993; Gardner v. Mfg. Co., 7 S.W.2d 706; Benzel v. Anishanzlin, 297 S.W. 180; Patton v. Tea Co., 15 S.W.2d 360; Hutchinson v. Railroad Co., 161 Mo. 246; Moore v. Ry. Co., 176 Mo. 528; Lentz v. Seibert, 259 S.W. 831; Roper v. Greenspon, 272 Mo. 288, 210 S.W. 922. (2) Said Section 22, providing that certain lights should be on motor vehicles in motion or at rest between certain hours was enacted by the Legislature for the benefit of the plaintiff. The purpose was to warn other persons using the highway of the presence of and position of other motor vehicles on the highway and the direction they were standing or traveling so that other persons using the highway would see such vehicles and avoid collision with and injury to them, and the failure of the plaintiff to obey the aforesaid law contributed to plaintiff's injury and was a proximate cause thereof. 45 C.J. 969; Lentz v. Seibert, 259 S.W. 831; Kennedy v. Quarry Construction Co., 291 S.W. 477; Diehl v. Fire Brick Co., 253 S.W. 984; Giminski v. Irving, 206 N.Y.S. 119; Martin v. Herzog, 126 N.E. 816; Lima Used Car Exchange v. Hemperly, 166 N.E. 364; Schell v. Dubois, 113 N.E. 664; Townsend v. Jaloff, 264 P. 349; Moore v. Ry. Co., 176 Mo. 545; Roper v. Greenspon, 272 Mo. 288, 210 S.W. 922. (3) The defendant voluntarily and unnecessarily placed himself in a dangerous situation, knowing the hazard to which he was being exposed; therefore, he was guilty of contributory negligence and cannot recover unless it would be under the humanitarian doctrine. Patton v. Tea Co., 15 S.W.2d 360; Gray v. Light Power Co., 282 S.W. 494; Morris v. Light Power Co., 258 S.W. 431; Weller v. Ry. Co., 120 Mo. 653; Nivert v. Railroad, 232 Mo. 626; Smith v. Water Mills Co., 238 S.W. 575; Wheeler v. Wall, 157 Mo. App. 38; Degonia v. Railroad, 224 Mo. 587. (4) The plaintiff's evidence conclusively shows that he was guilty of contributory negligence as a matter of law, and the court did not err in so holding. Moore v. Ry. Co., 176 Mo. 545; Zlotnikoff v. Wells, 295 S.W. 130. (3) The allegations of the petition are in direct conflict with that which is necessary to state a cause of action under the humanitarian doctrine. Banks v. Morris, 257 S.W. 484; Seigle v. Wells, 287 S.W. 777; Finley v. Wells, 14 S.W.2d 477; Nivert v. Railroad, 232 Mo. 638; Wheeler v. Wall, 157 Mo. App. 43. (6) The petition states that the plaintiff at all times before the collision "was exercising ordinary care and caution for his own safety." This allegation is fatal to a cause of action under the humanitarian doctrine. That doctrine has no application where the peril of the plaintiff was not due to his own negligence for which he was responsible. Nivert v. Railroad, 232 Mo. 626: Eman v. Himeless, 243 S.W. 244.
The plaintiff was a truck driver living at Houston, Texas County. On July 20, 1926, he was driving a Ford truck with a load of freight from Cabool to Houston on Highway 63. At a point called Hog Creek Hill he had tire trouble. The distance from that point to Houston is not stated, nor the nature of the tire trouble, but it may be inferred that it was a puncture. He drove his truck to the right-hand side of the highway, stopped "not over a foot from the ditch," jacked up his truck and put on his emergency brake. In front of him in another truck was one Jack Sooter. He took off his affected tire, put it in Sooter's truck and went on with Sooter to Houston, where he got another tire. Then he and Sooter, taking the new tire, with one Frank Jones who was on his way to Cabool, drove back in Jones's car to the place where plaintiff's truck was stopped.
Davis left his truck about sundown; he got back to it about nine o'clock. Jones, with his car headed south, stopped on the opposite side of the road while the plaintiff and Sooter began to put the new tire on the truck. Jones saw the car of defendant Howell approaching from the direction of Cabool, called the attention of Davis and Sooter to it, and suggested that they "put the turtle lid down," which they did. Just what that means is not explained. When the defendant's car was near the bridge at the foot of the hill, something like a quarter of a mile from where Davis's truck was parked, Jones started on south toward Cabool. He had proceeded about twenty steps — in further examination he said about sixty feet — when he met and passed the defendant's car. The defendant drove on and while Davis and Sooter were putting on the lugs he crashed into the truck, causing severe injuries for which the plaintiff sued.
Jones testified that Howell's car had very bright lights; that his own car had dim lights "like a dim Ford light." Sooter said defendant's car was going thirty-five or forty miles an hour. Jones testified that his own car was going ten or fifteen miles an hour when he met Howell. After the collision Jones made an examination to see how far the truck had been knocked, and found it was seven steps from the rear wheel of Davis's truck to the front wheel of Howell's car. There were no lights on Davis's truck at any time.
Defendant introduced no evidence.
The trial court sustained a demurrer to plaintiff's evidence; the appellant took an involuntary nonsuit with leave. Judgment for defendant and appeal followed in due form.
1. Respondent calls attention to the Laws of 1921, First Extra Session, page 95, section 22, which provides among other things:
"For the purpose of revealing its position and Contributory direction, a motor vehicle, while on the highway, Negligence. whether in operation or at rest, during the period from one-half hour after sunset to one-half hour before sunrise, and at all times when fog or other atmospheric conditions render the operation of motor vehicles dangerous on the highway, shall carry lighted signal lamps as herein required."
The respondent contends that because the plaintiff failed to have any lights he was guilty of such contributory negligence per se that he is not entitled to recover. The trial court apparently took the view that such is the law, regardless of whether the negligence of the plaintiff contributed to his injury or not. The rule upon that subject is stated in Monroe v. Chicago Alton Railroad Co., 280 Mo. l.c. 489:
"Contributory negligence, to bar a plaintiff, must enter into and constitute some part of the whole negligence which is the efficient or proximate cause of the injury."
Many other recent cases announce the same doctrine. Unless the failure to place lights on the truck was a proximate or efficient cause of the injury, then the plaintiff should not have been nonsuited on that ground. A farmer living near testified that some time after dark he saw the truck parked on Hog Creek Hill, the moon was shining and he could have seen that truck from a distance of 150 to 200 yards. The road from the south for some distance was straight, the truck was a large, bulky object, containing 3800 pounds of freight. This farmer was going from Cabool to Houston. He came along and saw Jones's car fifteen or twenty steps from the truck, Jones's car facing south, lights still burning. When he came around the curve of the bridge something like a quarter of a mile south he saw where Howell's car was standing. It seems that the Jones car was stopped down the road at the place where he heard the collision; the witness could see the truck notwithstanding the lights from Jones's car; the lights did not blind him.
The evidence shows that the lights from Howell's car were bright; if they shone on the truck as they should have done he could have seen it notwithstanding the truck displayed no lights. If he did see it and ran into it negligently, then the negligence of the plaintiff in having no lights on his car did not contribute to his injury. The purpose of having his lights was to reveal the position of his truck. If the position of his truck was known to the defendant then the absence of lights on it had nothing to do with the collision. Under the circumstances of the case it was a question for the jury, whether the defendant, with his lights shining straight down the road towards that bulky object, saw it in time, with the extraordinary care required by Section 19 of the Act of 1921, to swerve to one side and avoid striking it. The jury might infer from the circumstances that he did see what was in plain view, as well as he could if the light had been displayed. Or it might infer that the absence of lights contributed to the collision.
II. But a case was clearly made out under the humanitarian rule as defined and explained in Banks v. Morris Co., 302 Mo. 254, l.c. 267, and later cases. Here the road was Humanitarian straight. The plaintiff was under statutory duty to Rule. exercise the highest degree of care. He was bound to keep a constant lookout and see whether any person or object was in the path of his progress. If the defendant had been looking, the evidence indicated that his lights would have shone upon this bulky object in the road, when he was 150 or 200 yards distant. He might have seen it by moonlight if he had no lights. It cannot be said that the lights from Jones's car blinded him so that he could not see, according to the evidence of Ernest Nagle. Besides, the evidence showed that he met Jones in his car sixty feet south of where the truck stopped. Before Jones's car could come abreast of him the lights of Jones's car would have been thrown to his left in such way that only his own lights would have any effect, and shining down the road apparently would have revealed the truck if he had been looking. In that sixty or more feet he might have turned aside to avoid striking the truck. It was as close to the ditch as it could go, and the evidence shows there was room in the road for three cars to pass abreast to the left of defendant's truck. It was clearly for the jury to say whether the defendant, in the exercise of even ordinary care, could have seen, and could have swerved and prevented a collision with the truck and the injury to plaintiff, or could have sounded a warning and thus have enabled plaintiff to escape.
The respondent claims that the petition is insufficient to support a judgment under the humanitarian rule; that the allegations of the petition and the evidence did not authorize a submission of the case under the rule. We have already pointed out that the evidence was sufficient for the purpose. Pleading. Respondent calls attention to the allegations of the petition, showing primary negligence, that the defendant's car was driven at excessive speed, had insufficient lights and defective brakes, and then quotes from Banks v. Morris, 302 Mo. l.c. 267, the constitutive facts of a cause of action under the humanitarian rule, and claims that the allegations of negligence mentioned are entirely inconsistent with an action under that rule. Appellant in that overlooks further allegations of the petition, as follows:
"Plaintiff further states that after plaintiff was in a position of imminent peril, as aforesaid, and defendant saw, or by the exercise of ordinary diligence could have seen plaintiff was in such position of imminent peril in time for defendant thereafter by the exercise of ordinary care, with the means and appliances at hand, and with reasonable safety to defendant's car and its occupants to have stopped said car, checked the speed thereof, or swerved the same and thus and thereby avoided collision to plaintiff, the defendant negligently, with a gross disregard for the rights and safety of plaintiff's life, person and property, did drive at an excessively high rate of speed and with great force into and against the truck of plaintiff and against, over and upon the body and limbs of plaintiff, and by means thereof did then and there and thereby and as a direct and proximate result of said negligence, imprudence and carelessness of the defendant as aforesaid. . . ."
There was no demurrer to the petition nor any attack upon it by motion or otherwise on account of duplicity or insufficient allegations. Besides, there is no necessary inconsistency between allegations of primary negligence and allegations of negligence under the humanitarian rule under circumstances such as appear in this case.
The judgment is reversed and the cause remanded. Blair, P.J., concurs; Walker, J., not sitting.