humanitarian doctrine in Missouri

1982This was recognized in Banks v. Morris & Co., 302 Mo. 254 , 257 S.W. 482 (1924) which eliminated the substantive difference between extricability and obliviousness in determining whether a case had been pled under the humanitarian doctrine.

1982This was recognized in Banks v. Morris & Co., 302 Mo. 254 , 257 S.W. 482 (1924) which eliminated the substantive difference between extricability and obliviousness in determining whether a case had been pled under the humanitarian doctrine.

1966Appellant reminds that “[ujsually a humanitarian negligence case must fail when the plaintiff or his vehicle comes to an intersection last and runs into the side of the other vehicle,” Lotta v. Kansas City Public Service Co., 342 Mo. 743 , 117 S.W.2d 296, 302 [13]; that “[t]he first and basic fact of liability under the humanitarian doctrine is a position of imminent peril,” Lane v. Wilson, Mo.App., 390 S.W.2d 943, 947 [3], Anderson v. Prugh, 364 Mo. 557 , 264 S.W.2d 358, 364 [8]; that “ ‘[t]he peril truly must be imminent * * *; it may not be remote, uncertain or contingent.

1966Appellant reminds that “[ujsually a humanitarian negligence case must fail when the plaintiff or his vehicle comes to an intersection last and runs into the side of the other vehicle,” Lotta v. Kansas City Public Service Co., 342 Mo. 743 , 117 S.W.2d 296, 302 [13]; that “[t]he first and basic fact of liability under the humanitarian doctrine is a position of imminent peril,” Lane v. Wilson, Mo.App., 390 S.W.2d 943, 947 [3], Anderson v. Prugh, 364 Mo. 557 , 264 S.W.2d 358, 364 [8]; that “ ‘[t]he peril truly must be imminent * * *; it may not be remote, uncertain or contingent.

1973Ornder v. Childers, 327 S.W.2d 913, 916 [3] (Mo.1959).

1972In the cited case of Ornder v. Childers, Mo., 327 S.W.2d 913, 916 , the court did not say that as a matter of law the plaintiff made no humanitarian case.

1968As stated in De Lay v. Ward, Mo., 262 S.W.2d 628 , 634: “* * * we have, at places where there is a duty to keep a lookout, extended the humanitarian rule to discoverable as well as discovered peril * * * under the discoverable peril theory a defendant is charged with seeing what he could have seen whether he looked or negligently failed to look.” Defendant testified that she was proceeding northward along Union at 20 miles per hour.

1965A case may not be submitted under the humanitarian doctrine where it rests solely upon speculation, conjecture and surmise [Yeaman v. Storms, 358 Mo. 774, 779 , 217 S.W.2d 495, 499 ; Bauer v. Wood, 236 Mo.App. 266, 270 , 154 S.W.2d 356, 359 (6)], either with respect to the basic element of a plaintiff’s (or cross-claimant’s) position of imminent peril [Paydon v. Globus, supra, 262 S.W.2d at 603 ; Hendrick v. Kurn, supra, 352 Mo. at 851 , 179 S.W.2d at 719 (6) ; Hartlage v. Halloran, Mo.App., 331 S.W.2d 197, 200 ; Kasten v. St.

1965A case may not be submitted under the humanitarian doctrine where it rests solely upon speculation, conjecture and surmise [Yeaman v. Storms, 358 Mo. 774, 779 , 217 S.W.2d 495, 499 ; Bauer v. Wood, 236 Mo.App. 266, 270 , 154 S.W.2d 356, 359 (6)], either with respect to the basic element of a plaintiff’s (or cross-claimant’s) position of imminent peril [Paydon v. Globus, supra, 262 S.W.2d at 603 ; Hendrick v. Kurn, supra, 352 Mo. at 851 , 179 S.W.2d at 719 (6) ; Hartlage v. Halloran, Mo.App., 331 S.W.2d 197, 200 ; Kasten v. St.

1965A case may not be submitted under the humanitarian doctrine where it rests solely upon speculation, conjecture and surmise [Yeaman v. Storms, 358 Mo. 774, 779 , 217 S.W.2d 495, 499 ; Bauer v. Wood, 236 Mo.App. 266, 270 , 154 S.W.2d 356, 359 (6)], either with respect to the basic element of a plaintiff’s (or cross-claimant’s) position of imminent peril [Paydon v. Globus, supra, 262 S.W.2d at 603 ; Hendrick v. Kurn, supra, 352 Mo. at 851 , 179 S.W.2d at 719 (6) ; Hartlage v. Halloran, Mo.App., 331 S.W.2d 197, 200 ; Kasten v. St.

1962With the ability to stop within approximately 40 feet at 15 m. p. h.; at approximately 50 feet at 20 m. p. h.; and allowing ¾ second, Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785 , for reaction time, the jury reasonably could have found that the bus driver had sufficient time and space, under the humanitarian doctrine, within which to have stopped short of the point of collision after plaintiff came into a position of imminent peril.

1957At best, “there would have been but a mere possibility of avoiding the collision, and this is not sufficient to make a submissible case under the humanitarian rule.” Paydon v. Globus, Mo., 262 S.W.2d 601, 604 ; see also Yeaman v. Storms, 358 Mo. 774 , 217 S.W.2d 495 ; Claridge v. Anzolohe, 359 Mo. 65 , 220 S.W.2d 33 ; Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788 .

1960Co., 343 Mo. 139 , 119 S.W.2d 961 , the application of the humanitarian rule to a case where the plaintiff was only approaching a position of imminent peril.

1960Co., 343 Mo. 139 , 119 S.W.2d 961 , the application of the humanitarian rule to a case where the plaintiff was only approaching a position of imminent peril.

1976“In determining whether . a submissible case was made on the theory of primary negligence or under the humanitarian rule we review the evidence from the standpoint most favorable to plaintiffs and give them the benefit of all reasonable inferences therefrom.” Sehmittzehe v. City of Cape Girardeau, 327 S.W.2d 918, 922 [2] (Mo.1959); see also Schmidt v. Allen, 303 S.W.2d 652, 655 [3] (Mo.1957); Wardenburg v. White, 518 S.W.2d 152, 154 [1] (Mo.App. 1974).

1976"In determining whether . . . a submissible case was made on the theory of primary negligence or under the humanitarian rule we review the evidence from the standpoint most favorable to plaintiffs and give them the benefit of all reasonable inferences therefrom." Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918, 922 [2] (Mo.1959); see also Schmidt v. Allen, 303 S.W.2d 652, 655 [3] (Mo.1957); Wardenburg v. White, 518 S.W.2d 152, 154 [1] (Mo.App.1974).

1972It is only when immediate danger of being injured exists that the humanitarian rule seizes upon the then existing factual situation, in effect “blotting out primary or antecedent negligence,” Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930 , and imposes a duty thereafter to exercise the required degree of care to avoid the threatened injury.

1967It is only when this position arises or exists that the humanitarian rule seizes upon the then existing situation, in effect "blotting out primary or antecedent negligence,” Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930 , and imposes a duty thereafter to exercise the required degree of care to avoid the threatened injury.

1972Paydon v. Globus, Mo.Sup., 262 S.W.2d 601 ; Yarrington v. Lininger, Mo., 327 S.W.2d 104 ; Davis v. Quality Oil Company, supra. In addition, if it is shown by the evidence that decedent was in a position of immediate danger of being injured, in order to impose liability on appellants under the humanitarian rule, it is necessary that the evidence also show that Harold Crider, after receiving actual or constructive notice of the immediate danger, then “had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others,” in this case by slacke

1957At best, “there would have been but a mere possibility of avoiding the collision, and this is not sufficient to make a submissible case under the humanitarian rule.” Paydon v. Globus, Mo., 262 S.W.2d 601, 604 ; see also Yeaman v. Storms, 358 Mo. 774 , 217 S.W.2d 495 ; Claridge v. Anzolohe, 359 Mo. 65 , 220 S.W.2d 33 ; Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788 .

1951Fleming v. Bland, 322 Mo. 565 , 15 S. W. 2d 798 , we have held that antecedent negligence of a defendant cannot be taken into consideration in determining whether he was negligent under the humanitarian rule.

1951Fleming v. Bland, 322 Mo. 565 , 15 S. W. 2d 798 , we have held that antecedent negligence of a defendant cannot be taken into consideration in determining whether he was negligent under the humanitarian rule.

1966If this were a case submitted only on the humanitarian doctrine, as in Teague v. Plaza Express Co., 354 Mo. 582 , 190 S.W.2d 254 , this contention would be correct, for the sudden emergency doctrine has no application to a humanitarian submission.

1966If this were a case submitted only on the humanitarian doctrine, as in Teague v. Plaza Express Co., 354 Mo. 582 , 190 S.W.2d 254 , this contention would be correct, for the sudden emergency doctrine has no application to a humanitarian submission.

1960In Blaser v. Coleman, 358 Mo. 157 , 213 S.W.2d 420 , plaintiff, a guest-passenger sued under the humanitarian doctrine and received a judgment for personal injuries sustained when he leaped from the bed of a runaway truck abandoned by defendant's driver-employee.

1960In Blaser v. Coleman, 358 Mo. 157 , 213 S.W.2d 420 , plaintiff, a guest-passenger sued under the humanitarian doctrine and received a judgment for personal injuries sustained when he leaped from the bed of a runaway truck abandoned by defendant's driver-employee.

1983See also Yarrington v. Lininger, 327 S.W.2d 104 (Mo.1959), stating that “[wjhatever transpires from the standpoint of either plaintiff or defendant prior to the time that plaintiff enters into a position of imminent peril does not affect the rights of the parties thereafter.” When the case is submitted on the humanitarian doctrine alone, exceptions to this rule that plaintiff’s negligence is irrelevant are limited.

1972Paydon v. Globus, Mo.Sup., 262 S.W.2d 601 ; Yarrington v. Lininger, Mo., 327 S.W.2d 104 ; Davis v. Quality Oil Company, supra. In addition, if it is shown by the evidence that decedent was in a position of immediate danger of being injured, in order to impose liability on appellants under the humanitarian rule, it is necessary that the evidence also show that Harold Crider, after receiving actual or constructive notice of the immediate danger, then “had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others,” in this case by slacke

1958In Spoeneman v. Uhri, supra [ 332 Mo. 821 , 60 S.W.2d 11 ], it is stated: “Neither should he be convicted of negligence under the humanitarian doctrine if he could have avoided injuring the appellant only by inflicting injury upon himself or third parties, or even only by exposing *821 himself or them to unreasonable hazard. * * * We do not mean to say that, if a defendant’s prior carelessness precipitates such an emergency, he will always he excused from liability merely because he could not thereafter avert the casualty without undue hazard to himself or others.

1951Appellant's next assignment is that Instruction No. 4, submitting certain issues under the humanitarian doctrine, was erroneous in that it omitted as one of its elements that appellant "should not have been required to swerve the course of his car unless it could have been done with safety to others on the highway." The cases of Spoeneman v. Uhri, 332 Mo. 821 , 60 S.W.2d 9 , and Banks v. Morris & Co., 302 Mo. 254 , 257 S.W. 482 , are cited in support of this contention.

1964Language, such as that in section 1 of instant instruction 2, defines in general terms the duty of a driver under the law of primary negligence as well as under the humanitarian doctrine [Thayer v. Sommer, Mo., 356 S.W.2d 72, 76 ; Reiling v. Russell, 348 Mo. 279, 284 , 153 S.W.2d 6, 9 ; Wright v. Hummel, Mo.App., 164 S.W.2d 640 , 644]; and, in a number of Missouri cases, instructions containing such language have been held prejudicially erroneous as injecting primary negligence into a humanitarian submission. 8 Section 2 of instruction 2 charged defendant “with the knowledge that children do n

1964Language, such as that in section 1 of instant instruction 2, defines in general terms the duty of a driver under the law of primary negligence as well as under the humanitarian doctrine [Thayer v. Sommer, Mo., 356 S.W.2d 72, 76 ; Reiling v. Russell, 348 Mo. 279, 284 , 153 S.W.2d 6, 9 ; Wright v. Hummel, Mo.App., 164 S.W.2d 640 , 644]; and, in a number of Missouri cases, instructions containing such language have been held prejudicially erroneous as injecting primary negligence into a humanitarian submission. 8 Section 2 of instruction 2 charged defendant “with the knowledge that children do n

1958Knorp v. Thompson, 352 Mo. 44 , 175 S.W.2d 889, 900 [20]; Hall v. Clark, Mo., 298 S.W.2d 344, 349 [7].

1958Knorp v. Thompson, 352 Mo. 44 , 175 S.W.2d 889, 900 [20]; Hall v. Clark, Mo., 298 S.W.2d 344, 349 [7].

1944"In other words, in spite of a failure to keep a lookout the humanitarian doctrine may come into operation, not because that is in itself humanitarian negligence, but because we have, at places where there is a duty to keep a lookout, extended the humanitarian rule to discoverable as well as discovered peril." ( 337 Mo. at page 91 .) [434] Addressing ourselves now to this latter phase of defendant's duty — while the jury would be justified under the evidence in finding the plaintiff to have been in helpless peril after he had warned the driver, defendant's engineer could not know that plaintif

1941Co., 337 Mo. 79 , 85 S.W.2d 116 , 123.] "The prior or antecedent negligence of neither plaintiff nor defendant enters into the humanitarian doctrine." [Gray v. Columbia Terminals [167] Co., supra, 331 Mo. 73 , 52 S.W.2d 809 , 813.] We think instructions 7 and 8 introduced an issue foreign to the case, and set up a standard for the jury to consider and measure the conduct of deceased, rather than directing attention to the proper issues in the case.

1972As to evidentiary support see Branscum v. Glaser, Mo., 234 S.W.2d 626 [4-6], quoting this court’s opinion in Miller v. Wilson, Mo.App., 288 S.W. 997 [1]: “When, as is the case here, the record is utterly devoid of evidence as to defendant’s speed, the distance within which he could have stopped his automobile, or the relative positions of the two machines at the moment-when defendant could first be charged with actual or constructive notice of plaintiff’s perilous position and of the danger of a collision, no case is made for the application of the humanitarian rule.” In the obvious absence of

1966What we said in Branscum v. Glaser, Mo., 234 S.W.2d 626, 628 , is particularly appropriate: “One of the essential elements of the humanitarian rule is that ‘defendant after receiving such notice (of a person’s position of imminent peril) had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others’.

1964Language, such as that in section 1 of instant instruction 2, defines in general terms the duty of a driver under the law of primary negligence as well as under the humanitarian doctrine [Thayer v. Sommer, Mo., 356 S.W.2d 72, 76 ; Reiling v. Russell, 348 Mo. 279, 284 , 153 S.W.2d 6, 9 ; Wright v. Hummel, Mo.App., 164 S.W.2d 640 , 644]; and, in a number of Missouri cases, instructions containing such language have been held prejudicially erroneous as injecting primary negligence into a humanitarian submission. 8 Section 2 of instruction 2 charged defendant “with the knowledge that children do n

1960As a preliminary to a detailed treatment of the plaintiff’s contentions and the numerous arguments in support of them, we say that, where a defendant’s negligence under the humanitarian rule has been submitted, the defendant may either submit the exact converse of plaintiff’s humanitarian submission, “or of any essential element thereof, or he can submit facts (shown by his evidence) which would disprove one or more of the basic facts of plaintiff’s humanitarian submission.” Jans-sens v. Thompson, 360 Mo. 351 , 228 S.W. 2d 743 , 750; Colvin v. Mills, 360 Mo. 1181 , 232 S.W.2d 961 ; Welch v. Mc

1964While defendant was entitled to submit the facts shown by its evidence which had the legal effect of establishing that there was no humanitarian negligence on' its part, Montgomery v. Sobel, supra; Janssens v. Thompson, 360 Mo. 351 , 228 S.W.2d 743 , it had no right to interject into the case the plaintiff’s antecedent and contributory negligence, neither of which has any part in the defense of a case submitted solely on the humanitarian doctrine.

1961Janssens v. Thompson, 360 Mo. 351 , 228 S.W.2d 743, 746 [2] ; See v. Wabash Railroad Co., 362 Mo. 489 , 242 S.W.2d 15, 21 [10] ; Findley v. Asher, Mo., 334 S.W.2d 70, 73 [5], The defendant’s duty under the humanitarian doctrine did not arise until its fireman or engineer saw or in the exercise of ordinary care could have seen that Mr. Reedy was oblivious of the approach of the train and intended to proceed across its path or that, oblivious or not, Mr. Reedy was unable to stop short of its path.

1954“Under the humanitarian rule ‘the cause of the injured party’s peril is immaterial (save, perhaps, when he voluntarily seeks injury * * *).’ Grubbs v. Kansas City Public Service Co., 329 Mo. 390 , 45 S.W.2d 71, 74 ; Freeman v. Berberich, 332 Mo. 831 , 60 S.W.2d 393 , and cases therein cited.

1954“Under the humanitarian rule ‘the cause of the injured party’s peril is immaterial (save, perhaps, when he voluntarily seeks injury * * *).’ Grubbs v. Kansas City Public Service Co., 329 Mo. 390 , 45 S.W.2d 71, 74 ; Freeman v. Berberich, 332 Mo. 831 , 60 S.W.2d 393 , and cases therein cited.