Albright v. Joplin Oil Co.

S. W. 1. c. 251; Frankel v. Hudson, 271 Mo. 495, 196 S. W. 1121.]

As we conceive the humanitarian rule, it is to be applied in favor of one who has gotten into a place of danger, not purposely or wantonly, but through ignorance, unwittingly or negligently, and being there is either ignorant, unconscious or oblivious to the danger he is in, or for some physical reason or want of time is apparently not going to get out of the danger. When this attitude of a person be comes apparent to one using an instrumentality that will injure him unless some action is taken by the one controlling same to avert it, and the attitude of the one in danger is apparent for a sufficient length of time for the ordinary reasonable person, using ordinary vigilance, to have discovered it, and the user of such instrumentality has at his hands the means, by the exercise of ordinary use of same, to avoid an injury, it becomes his duty to so manage his instrumentality as not to cause injury, and a failure so to do constitutes negligence and liability under the humanitarian rule. The very basis of the rule is that the plaintiff is in a position of danger from which there is an inability on his part to escape, and that inability may result from a physical cause as of a foot being caught which renders him unable to escape, or from a mental state as of being unconscious or oblivious to his danger and for that reason while his physical state is unimpaired, he is deprived of the mentality to realize his danger and escape it.

It, therefore, becomes most essential, then, in order that there may be a recovery under the humanitarian rule, that a finding be made that to an ordinary person the injured party was apparently oblivious to the danger, in cases where the evidence presented the question that the injured party was oblivious and unconscious of his danger, or on the other hand there must be a finding that the injured party apparently could not extricate himself although conscious of his danger.

The two instructions asked by plaintiff fail to contain a finding that the deceased could, by the exercise of ordinary care on the part of the defendant's driver, have been seen in front of him in a place, where he would probably not

Albright v. Joplin Oil Co.

extricate himself, for a sufficient length of time and space to have stopped or slackened the speed of the car or turned out so as to avoid striking him. It was not necessary for the instruction in this case to contain a finding that the deceased was apparently oblivious because there was no evidence to base such a finding upon, and under the facts of this case it is not an element that enters into the question of liability. We herein set out plaintiff's first instruction, which covered the entire case and permitted a finding for the plaintiff :

"The court instructs the jury that if you find and believe from the greater weight of the evidence that the plaintiff was upon the 27th day of August, 1917, the wife of Albert Albright and that suit was thereafter commenced within six months of the date of said injury by plaintiff against defendant for said injury, and afterwards plaintiff did take a nonsuit in said cause and within a year thereafter plaintiff filed this suit, and that Wall Street and Seventh Street intersected in said city, and were at said time public streets in said city, and that upon said date her husband was riding a bicycle north upon Wall Street in the city of Joplin, and that as he approached Seventh Street which intersects Wall Street, and runs in an east and west direction, an automobile truck driven by a servant of the defendant in the furtherance of its business, was approaching on the right side of Seventh Street from the west, and that when her said husband reached Seventh Street upon his said bicycle he turned the same into the left side of said street, and that as defendant's automobile truck approached said Albert Albright he was in danger of being struck by said truck unless same was checked, stopped or the course thereof changed, if you so find, and that defendant's servant in charge of said truck saw, or by the exercise of ordinary care could have seen his said danger, if any in time, by the exercise of ordinary care, with the appliances at hand, to have stopped said truck or checked the speed or changed the course of said truck with reasonable safety to the occupants of said truck and prevented injury to said Albert Albright, if you so find, and if you further find that defendant's said servant failed to exercise such ordi

Albright v. Joplin Oil Co.

nary care and failed to check or stop said truck, or to change the course thereof, and that by reason of such failure to check or stop said truck or to change its course, said truck was not stopped or checked or the course thereof changed, and by reason thereof the said Albert Albright was struck by said truck and killed, then you must find for the plaintiff."

While it is true that this instruction required the jury to find that if defendant's servant, in charge of said truck, saw or by the exercise of ordinary care could have seen deceased's danger in time, by the exercise of ordinary care and with the appliances to stop said truck or change its speed or change its course, and that if there was a failure to do so, the jury would find for the plaintiff. Yet the deceased was always in danger from the moment he turned west on Seventh Street and the automobile was yet 135 feet from him, provided both continued as they were then going, and the automobile was not checked, stopped, or its course changed, and no one could say that at that point the driver of the automobile must act, where he had a right to believe that the deceased saw him approaching and yet had ample time to pass without injury, even though deceased was on the wrong side of the street. Under these circumstances the duty did not devolve upon him to take action to avert an accident until he had proceeded to a point where it would appear to the ordinary person that the deceased could not get out of his way. That point is fixed by the plaintiff's witnesses at from 20 to 25 feet, within which space it is shown the automobile could have been stopped, and by the defendant's witnesses that it was so close before that condition was apparent that no action was possible to take to avoid it, which constitutes the case to be tried to a jury under proper instructions as we understand it.

In order to fix liability in this case the jury must be required to find under the evidence, that the deceased, in approaching the automobile, reached a point in distance in front of it where he was in peril of being struck, from which peril he could not extricate himself; that such peril was or could have been discovered by the exercise

Vaughn v. Hines.

of ordinary vigilance on the part of the automobile driver in time thereafter for him to have stopped or checked or changed the course of the car with the means thereon provided.

For the error in plaintiff's instruction in omitting a necessary finding, the judgment must be reversed and the cause remanded for a new trial.

Cox, P. J., and Bradley, J., concur.

R. T. VAUGHN, Respondent, v, WALKER D. HINES, Director General of the ST. LOUIS, SAN FRANCISCO RAILROAD COMPANY, Appellant.

Springfield Court of Appeals, May 3, 1921.

1. APPEAL AND ERROR: On Demurrer to Evidence, Facts Must be Considered Favorably to Plaintiff. When considering defendant's contention that its demurrer to plaintiff's evidence should have been sustained, the facts must be regarded most favorably to plaintiff.

2. FALSE IMPRISONMENT: Evidence Sufficient to Make Primafacie Case for Passenger Arrested on Conductor's Complaint. In an action against a carrier for the act of the conductor in placing plaintiff in custody of a city marshal for having drawn a knife on him, the conductor, during an altercation over plaintiff's having turned over certain seats in the car, evidence held sufficient to make a prima-facie case of false imprisonment for plaintiff.

3.

4.

: Actual Damages Recoverable Without Proof of Facts Pleaded as Basis for Punitive Damages. In an action for false imprisonment, where plaintiff seeks both actual and punitive damages, merely because he has pleaded the facts of malice and want of probable cause necessary to entitle him to punitive damages, he is not also required to prove such facts to show himself entitled to actual damages.

: Want of Probable Cause and Malice not Elements of Liability for Actual Damages. Want of reasonable or probable cause and malice are elements not entering into the action of false imprisonment so far as actual damages are concerned.

Vaughn v. Hines.

5. — -: Instruction on Arrest of Passenger Proper. In an action against a carrier for false imprisonment of plaintiff, arrested at the instance of a conductor, in view of the evidence, instruction that the jury would find for plaintiff if they believed that the conductor, while acting as defendant's agent, requested the officer to arrest plaintiff and keep him in custody, and the officer did so restrain plaintiff, who was discharged from imprisonment before suit filed without charges preferred against him, was properly given.

6.

: Evidence of Justification Inadmissible under General Denial. In an action against a carrier for false imprisonment of a passenger arrested at the instance of a conductor where the only answer was a general denial, defendant's evidence, tending to justify the conductor's act was properly excluded.

7. APPEAL AND ERROR: Instruction as to Actual and Punitive Damages, Though Misleading, not Reversible Error. In an action against the federal Director General of Railroads for false imprisonment of plaintiff caused by a conductor, plaintiff's instruction, allowing such damages as the jury should find from the evidence, if any, not exceeding the sum of $1000 as to actual and $2000 as to punitive damages, though misleading, held not reversible error.

8. FALSE IMPRISONMENT: $1000 Actual Damages, and $1000 Punitive Damages Held Excessive as to Punitive Damages. Where plaintiff, a passenger accused of violating the rules and making threats in a dispute with the conductor, was arrested by the di rection of the conductor, and taken off of the train on which he was riding with his family, and kept in the officer's custody about nine hours, and released without charges preferred against him, an allowance of $1000 actual damages was not excessive, but an addtional allowance of $1000 punitive damages was excessive by $800.

Appeal from Dunklin Circuit Court.-Hon. W. S. C. Walker, Judge.

AFFIRMED (On Condition.)

W. F. Evans and Ward & Reeves for appellant.

(1) We take up the first two assignments together, to-wit: (1) The court erred in refusing defendant's