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August 9, 1983


From the Circuit Court of Cass County; Civil Appeal; Judge Robert G. Russell; Reversed and Remanded

Before Wasserstrom, P.j., Kennedy, Nugent, JJ.

The opinion of the court was delivered by: Nugent

Plaintiff appeals from a judgment for defendant in this personal injury action arising from his fall from defendant's automobile. Although plaintiff argues only that defendant's improper injection of contributory negligence in closing argument was error in this case submitted to the jury on the humanitarian doctrine of negligence, defendant argues that even if this were so, plaintiff was not prejudiced because he failed to make a submissible case. We reverse and remand for new trial.

1. Submissibility

We consider first the threshold question of whether plaintiff made a submissible case of humanitarian negligence. In doing so, we disregard defendant's evidence except insofar as it may aid plaintiff and we consider plaintiff's evidence as true, giving him the benefit of all favorable inferences which may be drawn from the evidence. Kuehn v. Hahn, 380 S.W.2d 445, 447 (Mo. 1964). In this light, plaintiff's evidence shows the following.

In 1980, plaintiff Howard Wilson, then twenty-four years old, and defendant Mary Tabor, then twenty-two, dated for approximately one month. Although the relationship had been having its ups and downs, the couple agreed to go roller skating together on the evening of May 14. The defendant drove Mr. Wilson and another couple, David Purevich and Debbie Jackson (now Purevich), to Skateland Skating Rink in Grandview, Missouri. During the skating party, Ms. Tabor told Mr. Wilson that she wanted to break off their relationship. He was upset and at the end of the evening's skating, at approximately 9:00 p.m., asked another friend for a ride home. Nevertheless, at the request of Mr. Purevich who informed him that Ms. Tabor wished to speak with him, the plaintiff entered her car, apparently agreeing that she would drive him to his house so that she could retrieve a ring and bracelet that she had given him. Mr. Wilson was sitting in the front passenger seat. Mr. Purevich and Ms. Jackson were in the back seat.

Mr. Wilson testified that as the defendant drove across the Skateland parking lot, his door was not completely shut. Ms. Tabor pulled out of the lot, turned right, and stopped almost immediately at a stop sign before entering the access road to 71 Highway. At the stop sign he told her, "Wait a minute, the car door isn't shut." In spite of this admonition, Ms. Tabor made a left turn and Mr. Wilson spilled out the right door onto the street. Ms. Tabor continued driving down the access road and did not return for Mr. Wilson. Plaintiff suffered a fractured skull and various bruises.

Although at trial, Ms. Tabor testified that Mr. Wilson said nothing about an open door and that he simply jumped from the car (allegedly in a state of suicidal depression over the termination of their relationship) after she started her left turn, plaintiff's counsel read excerpts from her deposition in which she stated that she saw the door open and asked him what he was doing. He said that he was just going to shut the door. In response to counsel's question, "And that was when you were starting up from the stop sign?", she answered, "Yes."

Because damages are not at issue here, we need not cover testimony in regard to plaintiff's hospitalization.

The humanitarian doctrine is said to be unique to Missouri and "proceeds upon the precept 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 become imperiled, when such injury may be averted without injury to others." Dey v. United Rys. Co. of St. Louis, 140 Mo. App.461, 120 S.W. 134 (1909).

The doctrine requires proof of the following elements: (1) plaintiff was in a position of immediate danger; (2) defendant had actual or constructive notice; (3) defendant had the means to have averted the impending injury without injury to himself or others; (4) he failed to exercise due care to avert the injury; and (5) plaintiff was injured as a result. Eddings v. Keller, 400 S.W.2d 164 (Mo. 1966).

On the question of submissibility, the elements in dispute are the first and third - whether plaintiff was in a position of immediate danger and if he was, whether defendant had sufficient opportunity to take corrective action after plaintiff came into that position. As to the other elements, sufficient evidence was presented through both plaintiff's testimony and defendant's deposition that Ms. Tabor knew of the open door before making the left turn which threw Mr. Wilson out onto the street. In addition, defendant does not question that she had the means, had she had time, instantly to straighten the car wheels or decelerate and avoid the dangers caused by making a left turn while the right door was open or unlatched. Nor does defendant dispute that she failed to act or that plaintiff was injured as a result of his fall.

The humanitarian doctrine's "position of immediate danger" *fn1 requires that peril must be "imminent, certain, immediate and impending." Granger v. ITT Continental Baking Co., 536 S.W.2d 894, 897 (Mo.App. 1976). The position is defined as

that position of danger to the plaintiff, whether or not the plaintiff was negligent in getting there, in which by reason of the then existing circumstances, if unchanged, injury to the plaintiff is reasonably certain and not a mere possibility. The peril must ...

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