Respondent, as the widow of Louis Borgstede, obtained a judgment against appellants in the sum of $10,000 for the death of her husband caused by the alleged negligence of Waldbauer. From this judgment both defendants appealed.
[1] The case was submitted to the jury under the humanitarian doctrine. Appellant, G.H. Wetterau Sons Grocery Company, assigned as error the refusal of the trial court to give an instruction in the nature of a directed verdict. The reason assigned was that the evidence failed to show that appellant, Waldbauer, was, at the time of the accident, acting in the capacity of its servant. Waldbauer was employed by the grocery company as a salesman and collector of accounts. In making sales and collections he traveled in a Ford coupe. On August 14, 1930, he drove to the northern part of the city of St. Louis for the purpose of collecting an account. After making the call and at about eight o'clock P.M., he proceeded south on Grand Boulevard intending to go to his home on Leona Avenue in south St. Louis. As Waldbauer was driving into the intersection of Grand Boulevard and St. Louis Avenue the deceased, who was walking across the street in a westerly direction, came in contact with Waldbauer's car. Deceased died the following day as the result of the injuries received in the accident.
It is apparent from the facts enumerated, which were conceded at the trial, that Waldbauer was, at the time of the accident, acting *Page 1210 within the scope of his employment. It was just as necessary for Waldbauer to return as it was for him to go to north St. Louis, as he had no business of his own there, but went in the interest of his employer. He was, therefore, about his master's business. A salesman must of necessity travel from place to place to perform his duties. It was shown that the company knew Waldbauer was using a car in making sales and collections. In 42 Corpus Juris, page 1128, section 900, we read:
"Where, with the express or implied assent of the employer, an employee uses a vehicle which the employee owns in the discharge of his duties, the employer will be liable for an injury occasioned by its negligent operation by the employee while acting within the scope of his employment." [See, also, Brauch v. Skinner Bros. Mfg. Co., 330 Mo. 760, 51 S.W.2d 27.] A salesman, returning home from a journey on behalf of his master is acting within the scope of his agency. [Teague v. Laclede-Christy, 331 Mo. 147, 52 S.W.2d 880; Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, l.c. 271 (13, 14).]
[2] Respondent's evidence supports a finding that deceased started to cross Grand Boulevard from east to west along the northerly boundary line of St. Louis Avenue at a time when the electric stop and go signs were in favor of east and west travel; that when he reached about the center of Grand Boulevard the lights changed so as to favor north and south travel. Waldbauer, driving south on Grand Boulevard, struck deceased when he was west of the southbound car tracks. It is respondent's contention that the evidence justified the submission of the case under the humanitarian doctrine. This was not seriously disputed by appellant. It will, therefore, not be necessary to go into detail as to how the accident happened. Appellants, however, contend that the trial court erred in giving respondent's instructions Nos. 1 and 2. We will comment on Instruction No. 1 later in the opinion.
Instruction No. 2 defined the term "highest degree of care" as follows:
"By the use of the term `highest degree of care' in these instructions, the court means such care, skill and foresight as a very competent and prudent person would use and exercise under like or similar circumstances."
"Highest degree of care" means that degree of care and caution which a very careful and prudent person would use or exercise under similar circumstances. [Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 59, 322 Mo. 778; Jackson v. Southwestern Bell Tel. Co., 219 S.W. 655, l.c. 657, 281 Mo. 358.] Appellants contend that the instruction above quoted not only required the highest degree of care to be exercised by Waldbauer, but in addition required the jury to find that he possessed such skill as is possessed by a very competent person. In this case meaning, such skill as would be possessed by a *Page 1211 very competent driver of motor cars. We are of the opinion that appellants' contention is correct. Respondent, however, argues that there is no degree of care higher than the highest and, therefore, the instruction did not cast a greater burden of care upon Waldbauer than the law required. That there can be no degree of care higher than the highest will be conceded without argument. The instruction, however, goes further and requires such skill as would be possessed by a very competent person. Respondent has cited authorities which, when analyzed, condemn the instruction. First of all we must keep in mind that absent the provisions of Section 7775, Revised Statutes 1929 (Mo. Stat. Ann., p. 5197), a driver of a motor vehicle is only required to exercise that degree of care that an ordinarily prudent person would use under like or similar circumstances. [Garvey v. Ladd (Mo. App.), 266 S.W. 727, l.c. 731 (3); Welp v. Bogy,8 S.W.2d 599, l.c. 600 (2-6), 320 Mo. 672; 1 Blashfield's Cyclopedia of Automobile Law, p. 255, sec. 1, also p. 484, sec. 18.] Section 7775, supra, of our statutes is silent as to the skill required of operators of motor vehicles. We must, therefore, look to the common law. Respondent in his brief has quoted from Williams v. Hays, 143 N.Y. 442, l.c. 454, the following, which we think states the law:
"`The standard man is no individual man, but an abstract or ideal man of ordinary mental and physical capacity and ordinary prudence. The particular man whose duty of care is to be measured does not furnish the standard. He may fall below it in capacity and prudence, yet the law takes no account of that, but requires that he should come up to the standard and his duty be measured thereby.'"
The following from 39 Harvard Law Review, page 867, quoting from Holmes on The Common Law, was also found in respondent's brief:
"`When men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point is necessary to the general welfare. If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.'"
If allowance be given in the courts of Heaven to a man for his congenital defects which render him below the average man, then by the same rule of justice the ordinary man will not be held accountable on a par with an individual of natural extraordinary intelligence. Somewhere in the good book it is related that our Supreme Master gave to one person one hundred talents, to another fifty and *Page 1212 to a third ten and held them to account in accordance to the talents bestowed upon them. So also, under the law of the land, the average man is not required to possess the skill of a very competent person but only such skill as is possessed by that "abstract or ideal man of ordinary mental and physical capacity and ordinary prudence." Man may fall below in capacity or he may rise above the average, but the law in negligence cases measures him according to the average. So by the common law a driver of motor vehicles is only required to possess such skill as is possessed by ordinarily competent drivers and his skill is not to be measured by the standard set by very competent drivers. This is supported by good authority. [Ulmer v. Farnham (Mo. App.), 28 S.W.2d 113, l.c. 116 (8, 9); Arnold v. San Francisco-Oakland Term. Rys. (Cal.), 164 P. 798, l.c. 799 (1, 2), (3); Massie v. Barker (Mass.), 113 N.E. 199; Roberts v. Ring (Minn.), 173 N.W. 437, l.c. 438 (3); Hughey v. Lennox (Tex.), 219 S.W. 323, l.c. 325 (5); 1 Blashfield's Cyclopedia of Automobile Law, p. 280, sec. 27, and 42 C.J. 897, sec. 602.] In the very nature of things the skill of the average driver of motor vehicles increases as the perplexity of driving increases due to the greater number of cars on the highways and the speed of driving. A driver of motor cars is, under the law, required to be a competent driver. Note what was said in Jackson v. Southewestern Bell Tel. Co.,281 Mo. 358, 219 S.W. 655, l.c. 658 (2-4):
"The driver of an automobile must depend wholly upon himself and his own care, skill, and caution to guide his car safely. All persons are not qualified to run an automobile. It would be the greatest carelessness for a wholly inexperienced person, without previous instructions from competent persons, to undertake to do so. It requires not only theoretical knowledge of how to manipulate the various parts of the machinery, but practical experience in so doing to render a person competent to drive an automobile."
If, therefore, a jury be instructed that a driver of a motor car must possess the skill of a very competent person the jury will naturally and rightly interpret such a direction to mean a driver with more skill than is possessed by the average competent driver of cars.
Respondent has also cited a number of cases dealing with the care of public carriers for hire and the skill required of their operators. Those cases will not be reviewed because there is obviously a distinction, which the law has recognized, between public carriers of passengers for hire and operators of private motor cars. Respondent further argues that even though the instruction be erroneous it cannot be deemed reversible error because under the facts of the case it clearly appears that Waldbauer was negligent. Cases under the humanitarian doctrine as a rule arise in emergencies and require alertness, rapid action, quick thinking and calmness. Usually such emergencies require an operator of a car to observe the situation, *Page 1213 form a judgment as to what is proper and best to do and execute the design to avert the impending injury, all in a very short time. The amount of skill possessed by the driver plays an important part. If a person possesses the skill of the average driver and exercises the highest degree of care in averting an impending injury in an emergency, under the humanitarian doctrine, he has discharged his duty, even though he fails in the attempt where the exercise of the skill possessed by a very competent driver might have averted the injury. The instruction in this case cannot, therefore, be held to be harmless because the jury were told that Waldbauer was required to exercise the skill possessed by a very competent driver.
Waldbauer testified that he did not notice deceased until he fell upon the hood of the car and grabbed the left headlight, and that then the body passed by the left side of the car. There was other evidence in the record that deceased walked into the side of Waldbauer's car. Waldbauer further testified that there was no southbound traffic ahead of him at the time and he could see at least one hundred and fifty feet ahead of his car and could have stopped it within a distance of ten feet. The deceased was rolled or dragged to a point near the westbound car tracks at St. Louis Avenue. Even under this evidence, if believed by a jury, they might have found that a very competent and skillful driver could have stopped the car in time to have saved the life of deceased.
[3] By Instruction No. 1, assailed by appellants, the case was submitted to the jury under the humanitarian doctrine. A criticism made is that the instruction, without requiring the jury to find that deceased was oblivious of his dangerous situation, authorized the jury to find for plaintiff upon the hypothesis that Waldbauer, after seeing deceased in danger or by the highest degree of care could have so discovered him, failed to give deceased a warning. Failure to warn and obliviousness go hand in hand. Warning is of no value to a person who is fully conscious of his dangerous situation. [Pentecost v. St. Louis Merchants' Bridge Term. Railroad Co., 334 Mo. 572,66 S.W.2d 533, l.c. 535 (2).] Obliviousness is often the main fact which creates the danger. [Banks v. Morris Co., 302 Mo. 254,257 S.W. 482, l.c. 484, 485 (3-5).] Respondent, therefore, contends that if the jury in this case found deceased was in a position of peril they of necessity found that deceased did not observe Waldbauer's car. We concede that had deceased observed Waldbauer's car he was in no apparent danger because the evidence disclosed that there was no other southbound traffic on Grand Boulevard ahead of Waldbauer's car. Ordinarily a pedestrian, seeing a car coming, would stop and let the car go by, and if in its pathway he would be expected to step out of danger. As a general rule, however, an instruction, authorizing a verdict for failure to warn, should also require the jury to find that the injured party was oblivious of the *Page 1214 impending peril. [See Jordan v. St. Joseph Ry., Light, Heat Power Co., 335 Mo. 319, 73 S.W.2d 205, l.c. 208 (1) (2-5).]
[4] The following clause in the instruction was also questioned: "And that thereafter the said William Waldbauer, by the exercise of the highest degree of care, through the use of the means and appliances at hand, without injury to himself, hisautomobile or other persons, could have avoided injuring the said Louis Borgstede." (Italics ours.)
It is claimed that the instruction should have read: "Withoutjeopardizing the safety of himself or others" or words to that effect. The cases of Alexander v. St. Louis-San Francisco Ry. Co., 38 S.W.2d 1023, l.c. 1026 (3), 327 Mo. 1012; Homan v. Mo. Pac. Ry. Co., 334 Mo. 61, 64 S.W.2d 617, l.c. 624 (13, 14); Spoeneman v. Uhri, 60 S.W.2d 9, 332 Mo. 821, give weight to that argument. We find an expression in the last case cited as follows:
"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 himself or them tounreasonable hazard." (Italics ours.)
Without deciding the point of whether the instruction, as written, would constitute reversible error we advise that upon another trial the instruction be written to conform to the suggestion made. Under the evidence in this case the error was probably harmless because there was no contention made at the trial or showing that third persons or Waldbauer would have been in danger had he swerved to one side or suddenly stopped his car. [See Brown v. Callicotte, 73 S.W.2d 190, l.c. 194 (5).] In humanitarian cases the rule seems to be, and ought to be, that a person must avoid inflicting injury to the person imperiled if it can be done by the exercise of the highest degree of care with reasonable safety to himself and others. [See Gude v. Weick Bros. Undertaking Co., 322 Mo. 778, 16 S.W.2d 59, l.c. 62 (3).] In the case of Banks v. Morris, supra, the question of the correctness of an instruction on this point was not discussed and was not before the court. Instructions, under this doctrine, should be so worded as to require the jury to find that the negligence, if any, of the defendants was the proximate cause of the injury.
[5] Appellants complain of the court's action in refusing to give their Instruction J, which reads as follows:
"The court instructs the jury that if you find and believe from the evidence in this case that the defendant William Waldbauer was at all the times mentioned in the evidence exercising the highest degree of care in the operation of said automobile, that is, such care as a very careful and prudent person would exercise under the same or similar circumstances, and that while said automobile was being so operated by said William Waldbauer the deceased walked into *Page 1215 the side of said automobile, and that the said William Waldbauer did not know, or by the exercise of the highest degree of care could not have known, that deceased was about to walk into the side of said automobile, if you so find, or was in a position of imminent peril, in time thereafter, by the exercise of the highest degree of care, to have stopped, slackened the speed, swerved said automobile, or given warning of the approach so as to have prevented said injury, then the defendant William Waldbauer was not guilty of negligence and your verdict must be for the defendant."
This instruction, as quoted, was properly refused because it authorized a verdict for defendants if Waldbauer did not know that deceased was about to walk into the side of his car. The instruction should have read, "If Waldbauer did not know and by the exercise of the highest degree of care could not have known such fact." [Iman v. Walter Freund Bread Co., 58 S.W.2d 477, l.c. 480, 9-13, 332 Mo. 461.] With this modification the instruction would be correct. We are of the opinion that appellants were entitled to have such an instruction, had it been requested as submitting their theory of the case to the jury. We have not overlooked the opinion in the case of Causey v. Wittig,321 Mo. 358, 11 S.W.2d 11, l.c. 14 (2-5), by the court en banc, cited by respondent, where it was held by a majority of four to three that such an instruction was erroneous because it did not require the jury to find that such a fact, that is deceased walking into the side of the car, was the sole cause of the injury, and also because it singled out and gave undue prominence to certain facts favorable to defendant. The instruction reads as follows:
"`The Court instructs the jury that if you find and believe from the evidence that while defendant was operating his automobile north on Tower Grove Avenue, the deceased, Charles Causey, suddenly ran across the street in front of a movingstreet car and toward the left rear side of defendant'sautomobile and in so close proximity thereto as to make itimpossible for the defendant to prevent his automobile fromcolliding with the said deceased by the exercise of the highestdegree of care in the operation thereof, then your verdict must be in favor of the defendant.' (Italics ours.)"
It is our view that the dissenting opinion of BLAIR, J., concurred in by two of the judges, correctly interpreted the instruction and pointed out the fallacy of the main opinion. For the reasons therein stated we overrule the Causey case insofar as it holds that the condemned instruction was faulty because it did not require the jury to find that the negligence of the deceased was the sole cause of the accident, and that the instruction gave undue prominence to certain facts favorable to defendant. The instruction, as pointed out in the dissenting opinion, was not subject to either criticism. As a rule a plaintiff's instruction, authorizing a verdict, sets forth the facts *Page 1216 in evidence relied on for a recovery. Has this court ever condemned such an instruction because it gave undue prominence to facts favorable to plaintiff? Then why should a defendant's instruction be condemned because it sets forth facts which, if found to be true by the jury, would, under the law, absolve him from liability? A plaintiff, by filing suit, hails a defendant into court and seeks recovery from him upon certain facts established by his evidence and submitted to the jury by instructions. If the jury find such facts to be true the instruction authorizes a favorable verdict. By every rule of justice a defendant should be accorded the same right and have his theory submitted to the jury in the same manner. Division One of this court in the case of Parker v. St. Louis-San Francisco Railroad Co., 41 S.W.2d 386, l.c. 388 (5), in an opinion by GANTT, P.J., said:
"Defendant was entitled to have any facts in evidence tending to sustain any defense made by it submitted to the jury. The fireman testified to the facts submitted by the instruction. And the court could not have submitted the ultimate facts without mentioning them in the instruction."
The Causey case was referred to and distinguished, but in principle the two opinions are in conflict. A defendant is not obliged to include in his instruction facts relied on by the plaintiff for a recovery. In the case of Smith v. Wells,326 Mo. 525, 31 S.W.2d 1014, l.c. 1020, 1021 (1), (2), an instruction in substance and effect the same as the instruction in the Causey case was considered at length and approved. The Causey case was not mentioned. The instruction in the Causey case authorized a verdict for the defendant if the jury found that the deceased in that case suddenly ran across the street so as to make it impossible for the defendant to prevent his automobile from colliding with the deceased by the exercise of the highest degree of care in the operation thereof. "Suddenly" means unexpectedly and is a word well understood by the average layman. If a pedestrian in a place of safety suddenly runs into a street in front of or into the side of a moving car, so as to make it impossible for the operator of the car to prevent a collision by the exercise of the highest degree of care in the operation thereof, the driver should not be held liable even under the humanitarian doctrine. A finding, by a jury, of the facts as contained in the instruction mentioned, was equivalent to a finding that deceased's negligence was the sole cause of the collision.
[6] In Missouri, under the humanitarian doctrine, a driver of a motorcar is required to exercise the highest degree of care in discovering a pedestrian in peril or danger. It is immaterial whether that peril was created by the negligence of the pedestrian. Contributory negligence passes out of the case when it is submitted solely under the humanitarian doctrine. [Silliman v. Munger Laundry *Page 1217 Co., 329 Mo. 235, 44 S.W.2d 159, l.c. 163 (3, 4); State ex rel. v. Haid, 333 Mo. 1224, 64 S.W.2d 667, l.c. 669 (6-8).] However, the question of whether the negligence of the injured party, where it is made an issue in the case, was the sole cause of the injury remains in the case. A defendant in such cases has the right to have that issue properly submitted to the jury.
The judgment is reversed and the cause remanded for new trial.
Divisional opinion adopted as the opinion of the Court en Banc. All concur, Hays, J., concurring in result in separate opinion.