Opinion
No. 28520.
February 17, 1953. Rehearing Denied March 13, 1953.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Walther, Hecker, Walther Barnard, Harold F. Hecker and George W. Cloyd, of St. Louis, for appellant.
Chelsea O. Inman and Charles E. Gray, St. Louis (Byron E. Roche, of St. Louis, of counsel), for respondent.
This is an action growing out of an automobile collision which occurred near noon on March 13, 1949, at a point on U.S. Highway 40 about three miles west of Jonesburg in Montgomery County, Missouri, where the highway runs through an underpass beneath the tracks of the Wabash Railroad Company which cross the highway on a trestle from southeast to northwest.
The trestle, in length, is but barely more than the width of the highway, and is supported at either end by heavy concrete abutments which stand at the edge of the pavement which is approximately 20 feet in width.
The general direction of Highway 40 is east and west, but at the point in question, in order to accommodate itself to the angle of the underpass, the highway curves and goes beneath the trestle in the form of the letter S. In other words, an automobile approaching the underpass from either direction rounds a curve to the left, goes downgrade beneath the trestle and then upgrade and on a curve to the right, where the highway straightens out to either east or west depending upon the direction in which the automobile is proceeding. The south lane of the pavement is of course for eastbound traffic, and the north lane for westbound traffic. On both sides of the underpass the highway runs beneath banks of earth which rise gradually from the edge of the pavement to the level of the surrounding terrain.
The plaintiff is Olive Paydon, the widow of Emery L. Paydon, who was driving the automobile in which she was riding at the time the accident occurred. Paydon died some ten days after the accident as the result of the injuries he had received. The Paydon car was eastbound, and approached the underpass at a speed of about 40 miles an hour. The defendant, Meyer Globus, was westbound, and went under the trestle at a speed which, according to plaintiff's theory of the case, was 30 miles an hour. With defendant was his wife, who was killed in the accident, as well as his two sons, who fortunately escaped with minor injuries.
There had been a light snowfall during the preceding night, but by the time of the accident the highway was dry except for melting snow along the edge of the pavement. At a point some distance west of the underpass the snow on the bank along the south side of the pavement had melted and drained over across the eastbound lane, causing a wet spot to be formed on the pavement about six feet square. As the Paydon car passed over this spot it went into a skid in a general curve to the left, which eventually took it across and into the westbound lane, 186 feet west of the underpass, where it came to rest with its front end up against the bank to the north of the road. This position was "almost" at a right angle to the westbound lane, which it completely blocked to westbound traffic. In other words, when the Paydon car came to a stop it was entirely clear of its own eastbound lane, and completely over across the westbound lane, with the front three feet extending out beyond the edge of the pavement to the north. Momentarily after coming to a stop it was struck squarely in the right side by defendant's automobile, with the unfortunate consequences already revealed.
Plaintiff brought her action in two counts, the first for damages of $15,000 for the wrongful death of her husband, and the second for damages of $40,000 for personal injuries she herself sustained.
The charge of negligence under which both counts were submitted was identical, that is, that while the Paydon automobile was skidding down the highway out of control, both plaintiff and her husband came into a position of imminent peril of being struck by defendant's automobile, of which fact defendant was or should have been aware in time thereafter, with the means and appliances, at hand, and with safety to himself and the other occupants of his automobile, to have stopped his automobile short of a collision.
A verdict was returned in favor of defendant and against plaintiff on count one of the petition, the count for damages for the husband's wrongful death, but in favor of plaintiff and against defendant for the sum of $6,600 under count two, the count for damages for plaintiff's own personal injuries.
Plaintiff moved for a new trial on count one of her petition, but this being denied, she accepted the result and took no appeal. Defendant moved for a new trial and for judgment on count two of the petition, and this being denied, he took his appeal for the limited purpose of assailing the result on count two.
In the situation presented by the record, the amount in dispute is the sum of $6,600, and appellate jurisdiction is consequently vested in this court. Const. of 1945, Art. V, §§ 3, 13, V.A.M.S.
The chief matter presented for our decision is whether a case was made for submission to the jury upon the question of defendant's liability under the theory upon which plaintiff sought to recover against him.
The basic element of liability in every humanitarian doctrine case is the existence of a position of imminent peril from some instrumentality under the defendant's control to which the plaintiff has become exposed from some cause or other for which the plaintiff himself either may or may not have been personally responsible. Furthermore, to be "imminent" the peril must be certain, immediate, and impending, and not merely remote, uncertain, or contingent. Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420. In other words, mere likelihood or possibility of injury is not alone sufficient to give rise to a situation of imminent peril within the contemplation of the humanitarian doctrine. Lefkowitz v. Kansas City Public Service Co., Mo.Sup., 242 S.W.2d 530. Once the plaintiff comes into a position of imminent peril of which the defendant is chargeable with either actual or constructive knowledge as the case may be, the duty is imposed upon the defendant to take whatever timely steps may be available to save him, and if the defendant fails in this regard, and the plaintiff is injured as a direct consequence, then defendant is liable for the result, whatever the antecedent circumstances may have been that brought about the situation. But on the other hand, if the defendant lacks the time or the means to avert the harm to the plaintiff after the latter's position of imminent peril arises, the defendant in that event may not be subjected to liability, and the plaintiff must go without redress.
The evidence as a whole was unfortunately quite indefinite regarding the relative positions and movements of the two automobiles after the Paydon automobile went into a skid. Plaintiff herself remembered nothing after starting on the curve leading down into the underpass, and as a consequence she was compelled to rely primarily upon the physical facts as revealed by an investigation made shortly after the accident by the sheriff of Montgomery County along with a member of the state highway patrol.
The course of the Paydon car was indicated by skid marks on the pavement, which began at the wet spot in the eastbound lane and continued to run parallel for a distance of 72 feet all told to the rear end of the automobile after it had come to a stop crosswise of the westbound lane. Due to the greater resistance which was offered to the sliding wheels, the marks were wider than would have been the case if they had been made in the normal movement of the car. It was by the appearance of the marks on the pavement that the officers were able to determine that the automobile had skidded in a "kind of circular shape" towards the left, which, incidentally, was the general course of the highway, and had then turned across into the westbound lane in the position it occupied when it was struck. The farther the skid marks went in their curve towards the center of the highway, "the sharper they got" until the automobile turned rather abruptly into the westbound lane.
In giving his own testimony defendant stated that he first saw the Paydon automobile when it was 80 to 90 feet away, and that he could see that there was "something wrong" with the car. Both in his testimony on the stand as well as in a deposition taken prior to the trial, he stated that the Paydon car was a maximum distance of 30 feet away when it turned across the center line of the highway. He himself described the turn as "very sharp". In his deposition he had stated that at a speed of 30 miles an hour he could have stopped his car within 20 to 30 feet. However in his testimony on the stand he stated that he had been mistaken in such estimate, and that a distance of about 60 feet would be required. Plaintiff's expert witness testified that including reaction time, a distance of 43 feet would be required in which to stop an automobile at 30 miles an hour.
We cannot escape the conclusion that the evidence was insufficient to justify the submission of the case to the jury.
In considering the evidence regarding the time when plaintiff might be said to have come into a position of imminent peril, it must be borne in mind that the only peril with which we are concerned was the peril of a collision between the Paydon car and defendant's approaching automobile unless the latter was brought to a stop. As we have already pointed out, plaintiff's whole right of recovery was predicated upon the single proposition that defendant could have stopped his automobile short of a collision after she came into a position of imminent peril. In other words, under the issue as made by plaintiff herself, there was no question of avoiding the accident by anything other than the stopping of defendant's automobile after the duty for stopping arose.
So long as the Paydon car was on its own side of the road, it could not be struck by defendant's car, and no actual harm could befall plaintiff unless and until the automobile in which she was riding got over into the westbound lane in the path of defendant's approaching car. Consequently any peril from defendant's possible failure to stop his car could not have become immediate, impending, and certain until the Paydon car turned in its course in such a way as to charge defendant with notice, whether actual or constructive, that it was going to leave its own lane and cross over into the westbound lane in the path of defendant's car. Short of this moment plaintiff was not in a position of imminent peril within the contemplation of the humanitarian doctrine so as to have imposed the duty upon defendant to stop his automobile, if there was time and space available, and to have rendered him liable to plaintiff for any harmful consequences of his negligent failure to do so.
Even though defendant could see that there was "something wrong" with the Paydon car when it was still 80 to 90 feet away, there was no evidence that the thing that attracted his attention was indicative that the car was about to leave its own lane and cross over ahead of him into the lane in which he was driving. On the contrary, the skid marks followed the general course of the roadway until the car reached the point where it turned quite sharply to the north and came to rest "almost" at a right angle to the westbound lane. All of this clearly appears from defendant's Exhibit 4, a penciled sketch of the scene of the accident, which, while it was a defendant's exhibit, was not only identified by the sheriff at the trial as a fair representation of the positions of the car and skid marks, but is repeatedly so referred to in plaintiff's brief in this court. Under this evidence the Paydon car could not possibly have been in a position of imminent peril from defendant's approaching automobile except for the split second that was required for it to change its course sharply and slide the very few feet that took it over into the westbound lane.
But where was defendant's automobile when all of this occurred? Plaintiff's evidence did not show, and defendant's own evidence was that the Paydon car was no more than 30 feet away when it crossed the center line of the highway. Under plaintiff's theory of the case that a distance of 43 feet would have been required for defendant to have stopped his automobile, there was obviously no basis for liability; and even if we should accept defendant's statement in his deposition, later repudiated at the trial, that he could have stopped in from 20 to 30 feet, there would have been but the barest possibility that the collision could have been avoided. However, evidence which goes no farther than to show a mere possibility of avoiding the accident is not sufficient to make a case for submission under the humanitarian doctrine. Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495. Under the evidence in this case, any conclusion that defendant's car could have been stopped short of a collision after plaintiff came into a position of imminent peril could only rest upon speculation, surmise, and conjecture, and defendant should therefore have had a directed verdict at the close of the entire case.
In fact, so great was the uncertainty in the evidence with respect to the matters affecting the question of defendant's liability that the jury, in undertaking to reach a decision in the case, returned a verdict absolutely inconsistent on its face.
While plaintiff joined two causes of action in her petition, the one for her husband's wrongful death and the other for her own personal injuries, both causes of action resulted from a single tort. Shaffer v. Chicago, R. I. P. R. Co., 300 Mo. 477, 254 S.W. 257. If defendant was guilty of the negligence charged against him, he was liable to plaintiff upon both her causes of action, and if he was not guilty of the negligence charged against him, then he was free from liability under both counts of the petition.
But despite the obvious necessity that the verdict should have been for the same party upon both counts of the petition, the jury found in favor of defendant on the first count and in favor of plaintiff on the second. In other words, after finding that in the action growing out of the husband's death, defendant could not have stopped his car in time to have avoided the collision, the jury then proceeded to find the very contrary in the action for plaintiff's own personal injuries. The situation is of course now rendered of no consequence by reason of our decision that there was no substantial evidence to justify the submission of the question of defendant's liability, and there is therefore no occasion to consider the possible implications that might have followed if the decision had been otherwise.
The judgment rendered by the circuit court should be reversed and the cause remanded with directions to the circuit court to enter up a new judgment in favor of defendant on both counts of the petition. It is so ordered.
ANDERSON and ARONSON, JJ., concur.