Banks v. Morris Company

*262 RAGLAND, J. Action for damages for personal injuries. Prom a judgment for plaintiff in the sum of $10,000,' defendant has appealed. The petition alleged several grounds of negligence, but the case was submitted to the jury on only one of them. It was pleaded as follows: “Fourth. That the defendant’s agent and servant in charge of said automobile saw, or by the exercise of ordinary care could have seen, plaintiff in and upon the traveled part of said Pine Street and not upon the sidewalk, at its intersection with said Compton Avenue, and in a position of imminent peril of being struck by defendant’s said automobile, in time thereafter, by the exercise of ordinary care, with the means at hand and with safety to defendant’s said chauffeur and the other occupants of defendant’s said automobile, to have stopped said automobile, slackened the speed of or turned same so as to have avoided striking plaintiff, but that the defendant’s said chauffeur failed to do so.” The evidence for plaintiff tended to show the following facts: Plaintiff is a negro woman, who at the time of her injury was living at 3218 Pine Street in St. Louis. She was a dressmaker, earning about thirty dollars per week. About the middle of the afternoon of January 3, 1920, she left her home to go to Olive and Jefferson Streets in said city. She went east on the south side of Pine to Compton Avenue, and then turned north on the west side of that street to board the street car at Olive, a block north. Pine Street at Compton is thirty-six feet wide from curb to curb. Plaintiff stepped off of the curb on the south side of Pine into that street and looked to the east and saw an automobile approaching Compton from that direction, on the north side of Pine. *263 She then looked to the west and saw defendant’s truck, which afterward struck her, approaching Compton, hut at that time about the middle of the block near where she resided — 260 feet away. Plaintiff then proceeded northward in Pine Street along the west side of Compton ; after she had gone ten or fifteen feet she discovered that the west-bound automobile was approaching too near for her to attempt to cross in front of it in safety, and she stopped. She then saw defendant’s truck approaching from the west and that it would likely run over her unless she immediately got out of its way. She turned quickly and moved as rapidly as she could back toward the curb at the southwest corner of Pine and Compton, which she had just left. As she did so the truck swerved suddenly to the right (south), and she was struck hy the right front portion, and knocked down and seriously injured. With respect, to the situation as it appeared to her when she reached the point in the street where she stopped, plaintiff testified: “I didn’t wait at all, I just hesitated a moment. I seen I couldn’t get past the machine I was looking for going west, and this truck coming east was so near me that I attempted to get out of the road of that one and started back toward the curb, ... It seemed that way to me, the truck was coming right into me. The truck seemed to be the same distance away from the curb T was. If it didn’t seem that way to me I would have stood right there.” She further testified that when she turned to run back to the curb defendant’s truck was twenty or twenty-five feet- away; that when she turned the driver seemed to lose control of the truck, so that the truck followed her and struck her within a foot or a foot and a. half of the curb, on the south side of Pine and on the pedestrian crossing along the west side of Compton; that there was plenty of room for the driver of the truck to have swerved his truck slightly to the north and avoided striking her without colliding with traffic coming westward on the north side of Pine. After the *264 right front wheel had passed over plaintiff’s right leg, the truck stopped. The evidence on the part of defendant tended to show that when the truck reached a point about fifty feet west of the west curb on Compton, the driver saw plaintiff step off the curb and start diagonally toward the northeast corner of the street intersection; that when she reached the center of the intersection she was stopped by the west-bound traffic, and thereafter suddenly wheeled around and left a place of safety and started back directly in the path of the truck; that the driver swerved his truck to the south to avoid striking her, but that she moved so suddenly that it was impossible to avoid striking her. The driver testified that his truck was moving at the rate of eight miles an hour when he first saw plaintiff leave the curb; that he then sounded his horn and applied the service brake, without cutting off the power, which reduced his speed to six miles an hour; that plaintiff turned to go back to the curb when he was within fifteen feet of her; that he then applied the emergency brake, and swerved to the south, because he could not turn to the north without colliding with the west-bound traffic; that after putting on the emergency brake the car skidded seven or eight feet and came to a stop over plaintiff after the right front wheel had knocked her down and passed over her leg. There was a slight up-grade going east on Pine Street, and the surface of the street was icy. But a witness for plaintiff, who qualified as an expert, gave it as his opinion that the truck, under the conditions obtaining immediately prior to its collision with plaintiff and with the means at hand, could readily have been stopped within seven or eight feet. With respect to the injuries sustained by plaintiff as a result of her collision with the truck, her evidence tended to show: There was a complete fracture of both bones of her right leg two or three inches above the ankle joint. Several attempts were made to reduce the *265 fractures by means of splints and bandages; these all failed by reason of the slipping and over-lapping of the segments of the tibia after they were put in proper position for union. Finally after there had been a partial union it was deemed necessary to remove the callous or bone cement that had formed, re-adjust the broken parts and put on a steel plate to hold them in place. This final operation was successful and a satisfactory union of the broken parts of the tibia resulted. There has been no union of the parts of the fibula, and never will be. The net result is uthe leg will be as strong as before the injury, but one and three-fourths inches shorter, causing a tilting of the pelvis, which has the effect of throwing the spine and upper organs out of line and which may possibly cause curvature of the spine. The failure of the fibula to function has destroyed the rotary motion of the leg at the knee. These conditions are permanent. Plaintiff also suffered a sprain or a loosening of a cartilaginous union between the back bone and one of the large bones of the hip, which her physician called “the illosacral joint.” This hurt, he. said, was incurable, and would probably give rise to various nervous disorders. She was confined to her- bed for about six months, and down to the time of the trial, eleven months after the injury, she had continuously suffered from sleeplessness and protracted headaches. The court refused a peremptory instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case in chief, and again when all the evidence was in.- Plaintiff’s principal instruction followed substantially the language of her pleading heretofore set out. The instruction on the measure of damages given at her instance was as follows: “The court instructs the jury, that if you find in favor of the plaintiff you will assess her damages at such sum as you may believe and find from the evidence will be fair compensation to her: *266 “First. For pain of body, if any, and anguish of mind, if any, which the plaintiff has suffered by reason of her injuries, if any, and directly caused thereby; and for pain of body, if any, and anguish of mind, if any, which the jury find from the evidence plaintiff is reasonably certain to suffer in the future, by reason of her injuries, if any, and directly caused thereby. “Second. For expense, to the reasonable value thereof, and .not exceeding $900 for medical attention, if any, the plaintiff has necessarily incurred and become obligated for, by reason of her injuries, if any, and directly caused thereby. “Third. For loss of earnings of her labor, if any, but not exceeding the rate of $30 per week, which the plaintiff has suffered, by reason of her injuries, if any, and directly caused thereby; and for loss of earnings of her labor in the future, if any, which the jury find from the evidence she is reasonably certain to suffer by reason of her injuries, if any, and directly caused thereby. “Fourth. For permanent physical disability, if any, which the plaintiff has suffered by reason of her injuries, if any, and directly caused thereby.” I. One of the grounds on which appellant based its request for a directed verdict was the alleged insufficiency of the petitio’n. Appellant argues here that the petition does not state a cause of action because it does not allege “that plaintiff was oblivious 0f her peiil and that it (her oblivious- , . , , „ , ness) was apparent to defendant’s chauffeur. ’ ’ This calls for a brief consideration of the “humanitarian rule,” as applied in this State. The doctrine from which the rule has been evolved is something more than an exception to the law of contributory negligence. It “proceeds upon the precepts of humanity and of natural justice to the end that every person shall exercise ordinary care for the preservation of another after seeing him in peril or about to became imperiled, when such injury may be averted *267 without injury to others.” [Dey v. Railways, 140 Mo. App. 461, 467.] .Under this doctrine “the position of peril” is one of the basic facts of liability; it might be denominated the chief one. [State v. Trimble, 253 S. W. 1014, 1019.] It is of no consequence what brings about, or continues, the situation of peril. It may be through the obliviousness of the one imperiled, or through his inability to extricate himself from his environment, or through his efforts to rescue another, or through his sheer hardihood or recklessness. But regardless of what occasions his peril, the law out of its extreme 'regard' for human life makes it the duty of another who sees him in peril to exercise ordinary care to prevent injury'or death. [Murphy v. Railroad, 228 Mo. 56; Morgan v. Railroad, 159 Mo. 262; Hanlon v. Railroad, 104 Mo. 388.] The constitutive facts of a cause of action under the humanitarian rule, stated in their simplest terms, without any of the refinements, limitations or exceptions which might arise on a particular state of facts, are contained in this formula: “(1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof plaintiff was injured.” Evidence tending to prove these facts makes a prima-facie case for plaintiff. In some instances obliviousness of danger on the part of the plaintiff is necessary to make the situation in which he is placed one of peril. In such cases it is of course incumbent upon the plaintiff to make proof of the facts and circumstances tending to show obliviousness, not only for the purpose of establishing that he was in a position of peril, but to bring home to defendant a knowledge of his peril. In these cases, however, obliviousness is but a subsidiary or evidentiary fact, the *268 perilous situation of plaintiff and defendant’s knowledge of it are the ultimate, issuable facts. Such facts and only such facts must be pleaded. Matters of evidence have no place in a pleading. This is elementary law. A merely casual reading of the petition in this case discloses that it states fully and succinctly all the facts necessary to constitute a cause of action under the humanitarian rule. In passing it should be said that this is the first time this court has had occasion to rule on the question of whether it is necessary to plead “obliviousness” under the humanitarian rule. We have held that under an unchallenged plea of general negligence proof could be made of negligence under the humanitarian doctrine. [Frankel v. Hudson, 271 Mo. 495, 504; Fleming v. Railroad, 263 Mo. 188, 189; Kellny v. Railroad, 101 Mo. 75; Hilz v. Railroad, 101 Mo. 56; Hanlon v. Railroad, 104 Mo. 381.] But in the cases that have been before us where, as here, negligence under that rule was specifically pleaded, the question of the necessity of alleging obliviousnss has not arisen. Notwithstanding, appellant in support of its contention that obliviousness must be pleaded cites Kinlen v. Railroad, 216 Mo. 145; Pope v. Railroad, 242 Mo. 232; Lackey v. United Railways Co., 231 S. W. 956; State v. Reynolds, 233 S. W. 222. In none of those cases, however, was there any question of pleading considered. So far as the humanitarian rule was involved, they dealt for the most part with questions touching the sufficiency of proof that plaintiff was in a position of imminent peril — through obliviousness— and that defendant had actual or constructive knowledge of it. The first specific ruling in this State that obliviousness must be pleaded was made by the Kansas City Court of Appeals in Knapp v. Dunham, 195 S. W. 1062. The holding in that case was based upon some observations made in Kinlen v. Railroad and in Pope v. Railroad, supra. In the Kinlen Case the language used (pp. 164 and 165) was perhaps somewhat broader *269 than was necessary to a disposition of the question then under consideration. In any event, if what was there said be deemed inconsistent with the views herein expressed, it should to that extent be no longer followed. Knapp v. Dunham, supra, Rubick v. Sandler, 219 S. W. 401, and Stark v. Bingham, 223 S. W. 946, in so far as they hold-that obliviousness must be alleged in pleading negligence under the humanitarian rule, are disapproved. II. It is next urged that the proof was not sufficient to take the case to the jury. Yiewed from the standpoint of plaintiff’s evidence, she did not place herself in a position of peril when she left the south curb of pjne Street and started to walk north across the street. She as a pedestrian had as much right to use the street for travel as had the defendant with its motor vehicle. She entered upon that particular portion of the street a sufficient length of time in advance of the coming of defendant to entitle her as against it to the right of way. Her situation did not become dangerous until she reached the center of the street where her further progress was barred by the west-bound traffic. She would have been in no danger then if the truck had not borne directly down upon her without any apparent reduction of its speed. She was not oblivious to the menace of the on-coming truck; on the contrary, she was keenly alive to it. When it was within twenty or twenty-five feet of her, and still coming, she tried to get out of its path. As she could not go forward, she attempted to run back. The driver of the truck had notice of plaintiff’s situation in ample time to have stopped before she became imperiled. In fact the peril was solely of his creation; he saw that the traffic conditions were such that plaintiff could not continue across the street, yet he came directly on, neither slowing down, nor turning to right or left. Apparently he was not concerned with the peril he was putting her in; he left it to her to extricate herself as best she could • — to take wing if necessary to get out of Ms road. *270 According to the driver and some others of defendant’s witnesses, plaintiff was not in a position of peril until she turned and ran back in front of the truck. But the driver testified that he was then fifteen feet away from her; that he applied his emergency brake, and the car after skidding seven or eight feet came to a stop. The testimony of the expert was that the car could readily have been stopped within seven or eight feet. So that if defendant’s view as to when the position of peril developed be accepted, still the evidence was such as to warrant the jury in finding that the defendant had time thereafter by the exercise of ordinary care to-have avoided striking plaintiff. There was ample evidence to support the verdict. III. Complaint is made with reference to the instruction on the measure of damages. The petition alleged that plaintiff had incurred expenses for medical attention in the sum of $800, while the instruction authorized the jury to allow her $900 on that account, an excess of $100. The petition further placed lost earnings at $900, whereas the instruction contained no limitation as to the amount except with respect to the rate, which it fixed at $30 a week. Between the date of the injury and the date, of the trial forty-nine weks had elapsed. The jury therefore could have allowed $1470 on account of this item of damages or $570 more than was claimed in the petition. These errors can be cured by a remittitur of $670’. The instruction is further criticised on the ground that it authorized a duplication of the elements of damages. Viewed from the standpoint of compensation the phrase, “permanent physical disability,” as used in the fourth paragraph of the instruction, unquestionably carries with it implications of future pain and suffering and future loss of earning power, both of which are covered by the first and third paragraphs. The meaning directly conveyed by the words, physical disability, however, is the impairment of any of the normal functions of the body. *271 In the instant, case the evidence tended to show that plaintiff’s right leg* was shortened and the small hone therein incurably fractured, by reason of which the normal function of the leg was permanently impaired. Such impairment mig’ht or might not cause future pain, it might or might not cause a diminution of earning power; but wholly independent of. these possiblé consequences it was an element which it was proper for the jury to consider in fixing plaintiff’s compensation. If the jury was possessed of ordinary intelligence and a sense of fairness, as we must assume, it is hardly conceivable that after assessing, under the first and third paragraphs of the instruction, amounts to be allowed for future pain and suffering and for loss of earning power, they would make additional awards on these same grounds when they came to consider plaintiff’s permanent physical disability. The instruction was not accurately drawn, but it cannot reasonably be held to have led the jury into error. [Reynolds v. Transit Co., 189 Mo. 408, 419; Hite v. Railroad Co., 225 S. W. 916, 921.] IY. Complaint is also made as to the amount of damages awarded by the jury. The facts which the evidence tended to show with reference to plaintiff’s injury have been fully summarized and need not be repeated. In view of them we are unable to say that the verdict is excessive. Other questions of minor import were raised, and have been duly considered. Outside of the failure of the instruction on the measure of damages to limit the recovery for medical attention and for lost earnings, respectively, to the amounts claimed theref or in the petition, the record discloses no reversible error. The judgment will therefore be affirmed, if appellant will within ten days remit $670 of her award, as of the date of the judgment; otherwise the judgment will be reversed and the cause remanded for another trial. All concur, J4~hite and David E. Blair, JJ., in separate opinion.