Goodson v. Schwandt , 318 Mo. 666 ( 1927 )

Plaintiff, the widow of Frank Goodson, basing her action on Section 4217, Revised Statutes 1919, sued for damages for the death of her husband, who was struck and fatally injured on March 12, 1923, by a truck driven by Walter Schwandt on Seventeenth Street in the city of St. Louis, and died from said injuries a few days thereafter. Plaintiff had a verdict and judgment for $9,000 against both of the defendants and they appealed.

The petition contains several assignments of negligence, but the case was tried on the humanitarian theory.

The defendant Schwandt, an employee of the Electric Company, at about six P.M., on March 12, 1923, was driving a three-quarterton truck east on Locust Street. Will Mays and Elmer Ruthsatz, who were also employees of the Electric Company, were in the truck with Schwandt. Will Mays testified as a witness for plaintiff:

"We drove east on Locust Street from the Coliseum, and stopped at Seventeenth Street, even with the building line. . . . A car coming north on Seventeenth Street passed in front of us. When this car passed we blowed the horn and started east. I saw Mr. Goodson. Just as that northbound car got across he stepped off the sidewalk of Locust Street into the street. He proceeded about six feet north into the street and, owing to the fact that there were already two westbound automobiles approaching Seventeenth Street abreast each other, and another pulled around, making three abreast, Mr. Goodson jumped back, and when he did this the left front fender of Mr. Schwandt's truck struck Mr. Goodson, knocking him down. I saw Mr. Goodson before he stepped off the curb. I saw him as he walked up to the corner. At that time Mr. Schwandt's automobile was stopped on the west side of Seventeenth Street. When Mr. Schwandt started to cross Seventeenth Street he blew his horn before starting. At the time Mr. Schwandt's automobile stopped on the west side of Seventeenth Street, the right wheels of his truck were about two to four feet north of the south curb of Locust Street. At the time Mr. Goodson was struck the right end wheels of Mr. Schwandt's automobile were something like two feet from the south curb of Locust Street. The wheels were closer to the south curb on the east side of Seventeenth Street than they were when the machine was parked on the west side of Seventeenth Street. The westbound car turned out of line about eight feet east of the building line, on the west (east) side of Seventeenth Street. When Mr. Goodson stepped off the south curb into the street he was just a little east of the east building line on Seventeenth Street. In my judgment he was about four feet east, or maybe six feet east, of said building line at this time. He did not run. He was walking directly north. Before Mr. Schwandt's automobile struck Mr. Goodson, Mr. Schwandt blew his horn and hollered, ``Look out — look out.' After Mr. Goodson stepped six feet into the street he did not remain there or stand there any time, but jumped backwards and turned. While he was attempting to turn his body, the left fender of the machine struck him. I could not say which way he tried to turn. Mr. Schwandt blew his horn the second time when the front end of his machine was about even with the east building line on Seventeenth Street and about the time that this other car pulled out of line from the west. Mr. Goodson at this time was about four feet in front of Mr. Schwandt's car, which was moving about six or eight miles an hour."

The evidence also showed that the evening was clear and the surface of the street was dry and that a truck going at six miles per hour could have been stopped with the means at hand within six to eight feet and at eight miles an hour in ten feet. The width of Locust Street at the point of collision, between the curbs, is 42 feet and 4 inches. The evidence of Schwandt and Ruthsatz, who testified for the defendants, is substantially the same as that of Will Mays and affords no additional aid to plaintiff's case.

At the close of plaintiff's case and again at the close of all the testimony, the defendants each offered a separate demurrer to the evidence, which was overruled.

It is clear that at the instant Goodson discovered he was in danger of being run over by the third automobile, he was out of the path or course of the truck. He became confused, suddenly jumped back towards the south, and was instantly struck by the corner of the truck's left fender. His jumping back was the proximate cause of the collision and of his injuries. We think the evidence for the plaintiff clearly shows that the injury to her husband was purely accidental and unavoidable by the defendants.

As said in Rollison v. Railroad, 252 Mo. 541, 160 S.W. 994: "To predicate negligence on two seconds of time is in and of itself a monumental refinement. We cannot adjudicate negligence on such pulse beats and hair-splitting, such airy nothings of surmise."

And in Markowitz v. Railroad, 186 Mo. 359, 85 S.W. 351: "It requires more than the showing of a mere possibility that the accident might have been avoided in order to bring a case within the humanitarian doctrine announced in Kelley v. Railroad,101 Mo. 67; Morgan v. Railroad, 159 Mo. 262; Klockenbrink v. Railroad, 172 Mo. 678."

The court erred in overruling the demurrers to the evidence and the judgment accordingly is reversed. Davis and Henwood, CC., concur.