Hampton v. Raines ( 1960 )

On Motion for Rehearing

PER CURIAM.

Respondents are quite correct in certain -suggestions as to the facts: The skid marks ■extended 145 feet back from the trailer, not the tractor, as we inadvertently stated. Without reviewing all the evidence in this regard, we agree that the jury could have found that Hampton did not honk his horn. Hampton was an experienced truck driver, had worked under the Missouri Public Service Commission rules and was familiar with the Missouri Bus and Truck Law. Defendants did produce a witness who testified as an expert that lights on high beam .in a fog will blind an approaching driver.

But we think these facts, not stated in the principal opinion, do not cure or justify what we have determined to be error in omitting the essential fact of ¡knowledge, actual or constructive, that Raines was blinded. In examining this instruction we have not considered whether it improperly assumes that Hampton’s lights were on high beam (sharply disputed) because of our desire to hold to the fire the feet of the question on omission. It is our view that in a humanitarian case the defendant should not be condemned for not doing one certain or specific thing necessary to the removal of peril unless he knows, or should know, of the existence of facts which create the necessity for doing that certain thing. The very situation will often carry with it and imply the inescapable knowledge of the existence of the necessity, but we think that is not true under the peculiar circumstances of this case. Since this knowledge was an essential element, we think the burden of supplying its hypothesization by “clarification and amplification” could not be shifted to the one who is charged with humanitarian negligence.

The motion for rehearing and the motion to transfer are overruled.