I do not agree to the ruling of the principal opinion on plaintiff's Instruction No. 1 for reasons stated by Commissioner HYDE as follows:
[10] I do not agree with Part II of this opinion, because the approval of the instruction, therein discussed, is in necessary effect a holding that, as to the element of "obliviousness," there is no distinction between a case where a person is in a position of imminent peril and one where a person is onlyapproaching a position of imminent peril. I fully agree that "obliviousness" is not an essential ultimate fact necessary to make a humanitarian negligence case where the proof shows that the plaintiff was in a position of imminent peril. I do not agree with the holding herein that "obliviousness" is not a necessary ultimate fact to make a case where one is onlyapproaching a position of imminent peril; and where, as here, he would not have been in any danger of injury at all, while approaching at a distance within which warning could have prevented his injury, unless he was oblivious. *Page 887 The opinion herein is based upon the authority of Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482. I cannot agree that Banks v. Morris, supra, is really an authority for such conclusion, because it does not decide a case of a person approaching a position of peril. In that case, the plaintiff was in the direct path of an approaching vehicle but in spite of frantic efforts was unable to escape from it. The opinion said that plaintiff there "was not oblivious to the menace of the oncoming truck; on the contrary, she was keenly alive to it. . . . She tried to get out of its path. As she could not go forward (because of other traffic) she attempted to run back. . . . (The truck driver) came directly on, neither slowing down, nor turning to right or left. . . . He left it to her to extricate herself as best she could — to take wing if necessary to get out of his road." Of course, being unable to fly, the plaintiff there was in a position of imminent peril — helpless and in inescapable peril.
If "obliviousness" had been held as essential ultimate fact in that case, an outright reversal of the plaintiff's judgment would have been required. The law clearly could not require such a result, so what was there decided and all that could have actually been decided was that "obliviousness" was not and could not be an essential element necessary to make a case, when a person was in a position of inescapable peril. That is absolutely right but any language therein broad enough to apply to a case of approaching a position where he would be in such peril, if he continued, could be nothing more than obiterdictum. I submit that being in a position of imminent peril and being in a danger zone because of approaching such a position is not the same thing. I think there are great and essential differences between these two classes of cases, and that they impose different duties and call for different rules of liability. This is recognized by the American Law Institute in its Restatement of Torts, which separately classifies and discusses these two situations. [Restatement of Torts, secs. 479 and 480; see, also, discussion of Restatement, sec. 480, in Womack v. Missouri Pacific Railroad Co., 337 Mo. 1160,88 S.W.2d 368.]
[11] When a person is in the direct path of a vehicle approaching so swiftly that he is helpless to escape it solely by his own efforts without action (to stop, slacken speed or swerve) on the part of the driver, he is, of course, in a position of imminent peril. In such circumstances it is not difficult for laymen to understand the meaning of the undefined term "in a position of imminent peril." However, the humanitarian doctrine is not and should not be limited to that situation. It is and should be applied also to cases where a person is not yet "in a position of imminent peril," but is merely approaching such a position without knowledge of the danger that makes it perilous to do so. In such cases, a duty to act is imposed upon the driver to act before the approaching person actually gets "in a position *Page 888 of imminent peril." The driver, who sees (or ought to see under the Missouri rule) a person approaching the path of his vehicle, is required to act when such person enters what is called the danger zone, which extends beyond the place where he would actually be "in a position of imminent peril" and includes territory within which only knowledge of danger is necessary to enable such approaching person to himself keep from ever actually getting "in a position of imminent peril," and to solely by his own acts himself prevent his injury without any action by the driver except overcoming his obliviousness of danger.
The instruction, authorizing a verdict for plaintiff approved here, did not require either a finding that plaintiff, while approaching the path of defendant's train, was oblivious to its approach, or that the defendant's employees in charge of the train saw, or by the exercise of due care could have seen, that plaintiff was oblivious or even appeared to be oblivious thereto, in time to have thereafter avoided his injury by warning him or slackening speed. This instruction is held sufficient upon the authority of the formula, in Banks v. Morris, supra, stating the essential facts which are required to make a humanitarian negligence case when a person is "in a position of imminent peril." This instruction authorized the jury regardless of "obliviousness" or any appearance of obliviousness, to find for plaintiff if "at and prior to the collision (this language is criticized in Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538, and Williams v. St. Louis Public Service Co. (Mo. App.), 54 S.W.2d 764) . . . plaintiff (and his truck) were approaching andin a position of imminent peril of being stuck;" and that "defendant saw or by the exercise of ordinary care on its part could have seen plaintiff and said automobile truck approachingand in a position of imminent peril of being struck," andthereafter failed to act as hypothesized. It is my view that the formula of Banks v. Morris supra, ought not to apply and cannot logically be applied to a person who is only approaching a position of imminent peril. The humanitarian doctrine always applies to a person who is in a position of imminent peril, and it never makes any difference whether he knows of the peril or not; but it applies, only under certain circumstances, to a person who is approaching such a position, and his knowledge of danger, except under most unusual circumstances, makes the difference between liability and non-liability. Is it not, in fact, a physical impossibility for a person to be in andapproaching a position of imminent peril at the same time? How can he be in a position of imminent peril when merelyapproaching a position of danger with ability to stop before reaching it? How can a person only be approaching a position of imminent peril at (the very moment of) the collision? What can the defendant do thereafter to prevent injury to a person who gets in a position of imminent peril at (the moment of) *Page 889 the collision? Does not the failure of this instruction to distinguish between the vastly different situation of a plaintiff and requisite duties of a defendant, "at and prior to the collision" and "approaching and in a position of imminent peril," make it so inconsistent, confusing and misleading that no one could intelligently follow it or tell what finding it required? [See italicized portion of instruction condemned in Lamoreux v. St. L.-S.F. Railroad Co., 337 Mo. 1028,87 S.W.2d 640, l.c. 642.] Would not a jury reasonably believe from it that it was the duty of trainmen to slacken the speed of their train and give warning whenever they saw anyone approaching the track whether oblivious or not? I think that it entirely fails to give them any definite idea of when, where, or under what circumstances the duty to act commences.
What is it that widens the danger zone beyond the path of a moving vehicle when a person is approaching its path? Is it not always widened by obliviousness and, except under unusual circumstances, only by obliviousness? This court has (even since Banks v. Morris, as it did before) consistently held that obliviousness is an essential element of a humanitarian negligence case based on failure to warn. [Phillips v. St. L.-S.F. Railroad Co., 337 Mo. 1068, 87 S.W.2d 1035; Jordan v. St. J. Ry., L., H. P. Co., 335 Mo. 319, 73 S.W.2d 205; Pentecost v. St. L., M.B.T. Railroad Co., 334 Mo. 572,66 S.W.2d 533; State ex rel. Weddle v. Trimble, 331 Mo. 1,52 S.W.2d 864; Driscoll v. Wells (Mo.), 29 S.W.2d 50; Clay v. Missouri Pacific Railroad Co. (Mo.), 5 S.W.2d 409; Wood v. Wells (Mo.), 270 S.W. 332.] How could it be held otherwise? Without obliviousness, failure to warn could not possibly be the proximate cause of injuries.
In Homan v. Missouri Pacific Railroad Co., 334 Mo. 61,64 S.W.2d 617, (Banc), it is held that the danger zone of one approaching a railroad track commenced where the trainmen "saw, or could have seen by the exercise of ordinary care, that the driver . . . was intent on pursuing his journey across the track, oblivious to the danger." [See, also, Smith v. K.C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548 (Banc).] If one is in peril because of obliviousness, and if his actions are such that the defendant has reasonable cause to believe that he is oblivious, then the duty arises first to warn so that he can by his own efforts keep out or get out of danger, and if that does not cause him to act or does not appear likely to get him notice in time to get out of or keep from going into danger, then to slacken speed. There may be time to do both. Often where danger is due to obliviousness of one approaching the path of a vehicle, there is not time to stop. In Homan v. Missouri Pacific Railroad Co., supra, ability to stop was shown. Of course, overcoming obliviousness is not necessarily required. If a defendant can avoid striking an oblivious person moving across his path by slackening speed so that he will be *Page 890 out of the way before defendant's vehicle reaches the place where such person is crossing, he performs his full duty by so doing although such person continues on his way still oblivious. This no doubt happens every day with automobile traffic, but it is the obliviousness (and reasonable appearances thereof) of the approaching person and not merely his approach, which creates the duty to act to either warn or slacken speed.
There are conceivable circumstances where the danger zone could be widened without obliviousness. It is possible that a person knowing that he is approaching the path of another vehicle or instrumentality could nevertheless be helplessly approaching a position of imminent peril of being struck by it; for example, a person in a vehicle out of control or a boy on a sled, unable to turn out of a rut or track and going too fast to stop. Such circumstances would widen the danger zone without obliviousness. A case which at first glance seems to thus widen the danger zone, without obliviousness, is Bode v. Wells, 322 Mo. 386,15 S.W.2d 335 (Banc), where the plaintiff, a woman desiring to board a street car at a usual stopping place, ran to cross the track ahead of it waving an uplifted umbrella as a signal to stop for her. The platform for passengers was on the other side of the track; it was the duty of the motorman to be on the lookout there for this exact situation; but he did not do so and the car did not stop. Clearly, approaching with such signals, indicated the plaintiff's intention to cross. There was neither any reason for her to believe that she could not safely do so, nor any reasonable ground for the motorman to make any other assumption. Plaintiff had the right to expect that the car would stop short of her crossing place and was clearly unaware that it would not do so. It was held that the danger zone was wider than the track. It might well be said that the plaintiff in this case was oblivious; that is, although she knew the car was moving toward her crossing place, she was without knowledge that the car would take the unusual and unexpected course which resulted in the injury. The point is that, when a person is approaching the path of a moving vehicle, only most unusual circumstances can widen the danger zone beyond its path without obliviousness of its approach, but that obliviousness always thus widens the danger zone.
In Banks v. Morris, there was a humanitarian case after the plaintiff was in a position of imminent peril because there was, thereafter, time for effective action by the driver. In the case at bar, there is no possibility under the evidence of a submissible case of humanitarian negligence, after plaintiff reached the place where he was in a position of imminent peril due to his helplessness to get out of its way thereafter solely by his own efforts. When this situation arose, it would have to be ruled as a matter of law that there was not sufficient time, thereafter, for defendant's engineer to have avoided injury *Page 891 to plaintiff by slackening speed; and warning at that time of course could have accomplished nothing. Therefore, plaintiff here can only make out a case of humanitarian negligence on the theory of being in the danger zone of reasonably certain injury because of his obliviousness while approaching a position of imminent peril, with ability by his own efforts to prevent any injury to himself if he only knew of the danger. In other words, the danger zone in which plaintiff would have been in a position of imminent peril, due to helplessness to get out in time by his own efforts, was too narrow under this record to make a case; but the danger zone where plaintiff was in danger of injury due to his obliviousness, unless defendant did something (warning) to overcome his obliviousness while he could still help himself, or did something (slacken speed) to make his obliviousness harmless to him, was wide enough to permit time for effective action to prevent his injury, either by warning him so that he could stop, or by slackening speed so that he could pass over the crossing before the train reached it. How narrow the danger zone is, when a person approaching the path of an oncoming vehicle is not oblivious, was shown by this court's opinion in McGowan v. Wells,324 Mo. 652, 24 S.W.2d 633, which states that if a plaintiff, approaching a street car track, "saw the street car all the time, knew it was continuing at undiminished speed, and yet with this knowledge walked directly into its path," he "did not enter the danger zone until he took the last step or so before going into the course the car would take." In other words, the humanitarian rule did not require action by the operator of the car in that case until the plaintiff was in a position of imminent peril; namely, close enough to the track to be struck by the overhang of the car if he took another step, and appearing about to do so.
Does this not demonstrate the reason why the formula set out in Banks v. Morris, supra, cannot fit this case, or any other case where the humanitarian doctrine is applicable to a person only approaching a position of imminent peril? In the case of a person, who, with ability to stop, is only approaching a position of imminent peril, the real cause of danger of injury is "obliviousness." If he is not oblivious he neither is in a position of any kind of peril, nor in a danger zone at all. Many cases hold that a case should not be submitted upon humanitarian negligence, if the evidence shows that the plaintiff was not oblivious or even if there was a failure to show a reasonable appearance of obliviousness. [Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600; Roberts v. Consolidated Paving Material Co., 335 Mo. 6, 70 S.W.2d 543; Cavey v. St. J. Ry., L., H. P. Co., 331 Mo. 882, 55 S.W.2d 438; Ziegelmeier v. St. L.-S.F. Railroad Co., 330 Mo. 1013,51 S.W.2d 1027; Sullivan v. A., T. S.F. Ry. Co., 317 Mo. 996,297 S.W. 945; Driscoll v. Wells (Mo.), 29 S.W.2d 50; State ex rel. Wabash Railroad Co. v. Bland, *Page 892 313 Mo. 246, 281 S.W. 690.] The American Law Institute's Restatement of Torts states the rule applicable to approaching cases (I think the above-cited cases show that it is the Missouri rule), as follows: "It is not enough that the defendant should see the plaintiff in a position which would be dangerous were the plaintiff not aware of what is going on. The defendant must also realize or have reason to realize that the plaintiff is inattentive and, therefore, is in peril." Therefore, it seems to me to be wholly wrong to say that, in such a case, obliviousness is not an essential ultimate fact.
When is a person in a position of imminent peril? In Banks v. Morris, supra, the separate concurring opinion of Judge WHITE says it is when there is "no time for deliberation on the part of the person in peril between its appearance and the impending calamity" and "when the ordinary and natural effort to be expected in such person would not put him in a place of safety;" and he further stated that "a person in full possession of his faculties, standing on a railroad track with a train approaching 200 yards away and due to arrive in 10 seconds would not appearin imminent peril." [See Ziegelmeier v. East St. Louis S. Railroad Co., 330 Mo. 1013, 51 S.W.2d 1027; Ridge v. Jones,335 Mo. 219, 71 S.W.2d 713; Wallace v. St. J. Ry., L., H. P. Co., 336 Mo. 282, 77 S.W.2d 1011.] In Clark v. A.T. S.F. Ry. Co., 319 Mo. 865, 6 S.W.2d 954, where a person was walking on a railroad track toward an approaching train, Judge RAGLAND, who wrote the opinion adopted in Banks v. Morris Co., recognized the correctness of the definition by Judge WHITE therein and reversed the Clark case because the trial court had refused an instruction which said that defendant's trainmen "were not obliged to warn said Clark, nor to stop or slacken the speed of the engine unless and until either the engineer or fireman saw, or by the exercise of ordinary care on his part would have seen, that said Clark was not conscious of the approach of said train and was in danger of being struck by it, and that he did not intend to get out of its way." The Clark opinion says: "If Clark saw the train coming or knew that it was coming, he was not in a position of imminent peril. Although a person may be in the pathway of approaching danger, yet, if he is fully cognizant of it and has the present ability to easily avoid it, he is not in a position of imminent peril within the rule." [See, also, Jordan v. St. Joseph Ry., L., H. P. Co. (Mo.), 38 S.W.2d 1042; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Worth v. St. L.S.F. Railroad Co., 334 Mo. 1025, 69 S.W.2d 672; State ex rel. Wabash Railroad Co. v. Bland, supra.]
If that is true of a person in the direct path of a train, is it not also true of a person who is merely approaching the path of a train? If it is true, how can it be said that obliviousness is not an essential element that the plaintiff must prove to make a case when he is approaching its path, and which the jury must find in order to reach *Page 893 a verdict in his favor? The decisions of this court, although generally following the rule, have failed to clearly state this obvious distinction between this class of cases and Banks v. Morris Co. This has brought about confusion, and instructions, which hypothesize wholly inconsistent situations, in an attempt to bring approaching cases within Banks v. Morris Co.
My conclusions are that a plaintiff is not in a position of imminent peril unless he is in a position from which he does not have time or ability to escape solely by his own efforts; that when he is in a position of imminent peril obliviousness is not an ultimate fact in his case because it is wholly immaterial and not an essential fact to make a jury case; that this would likewise be true of a person who is helplessly approaching a position of imminent peril under circumstances which render him unable to stop his approach; but that obliviousness necessarily is and should be held to be an essential ultimate fact which must be proved in order to make a case in all situations where a plaintiff is approaching a track or path, of a moving vehicle, with ability to stop and (if he knew of it) avoid any danger therefrom solely by his own efforts. This must be true because, in this last situation, a person cannot possibly be in a zone of danger therefrom unless he is oblivious of it. I think that an instruction should only hypothesize "in a position of imminent peril" when a person is unable to escape the danger solely by his own efforts (as Judge WHITE stated it in Banks v. Morris Co., "when the ordinary and natural effort to be expected in such person would not put him in a place of safety);" and that when a person is only approaching the path of a vehicle (in the danger zone therefrom if he is unaware of its approach) an instruction should hypothesize approaching a position of imminent peril but not in a position of imminent peril. I think that an instruction authorizing a verdict in the latter case should require the jury to find both that the plaintiff was oblivious and that the reasonable appearances of the situation were such that those, in charge of the vehicle he was approaching, knew or by the exercise of the required degree of care could have known thereof in time to have, thereafter, by appropriate action, prevented his injury. I think that failure of such an instruction to require such finding should be held to be reversible error.
[12] This error could not be cured or made harmless by the instruction given, at defendant's request, requiring a finding for defendant unless the jury did find that plaintiff was oblivious of the train as he approached the track. Plaintiff's instruction to find in his favor without any requirement to find that he was oblivious caused the two instructions to be in direct conflict as to this essential fact issue.
The decisions of this court on the question of when instructions can be harmonized and read together were reviewed in McDonald v. *Page 894 Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37, and the rule stated thus:
"It has long been settled that instructions must be read and construed together and `that where a series of instructions, taken together, contain a complete exposition of the law, and cover every phase of the case, the verdicts obtained thereon will be sustained, even though the instructions, when taken separately, may be incomplete, and open to objection and criticism.' (Citing cases.) Therefore, if the plaintiff's instruction, covering the whole case and authorizing a verdict, does require the finding of all essential elements of the plaintiff's case, but states some of these indefinitely or ambiguously or in language which might be misleading, then an instruction on the part of the defendants which clearly and specifically requires the finding of essential elements does not conflict with the plaintiff's instruction, but instead makes it clear and definite. When all of the instructions thus harmonize and when read together correctly state the law, any such indefinite, ambiguous or misleading language in the plaintiff's instruction is cured by the other instructions. (Citing cases.)"
It is equally well settled, as therein also stated that: "an instruction, purporting to cover the whole case and authorize a verdict, is erroneous if it leaves out any facts necessary to be found before the plaintiff is entitled to recover, and that, where an instruction does leave out such an essential fact, the error is not cured by an instruction for defendant requiring a finding of such a fact before recovery can be had against it. This is because the two instructions would be conflicting, since the plaintiff's instruction would authorize a verdict for the plaintiff without finding such vital fact, while the defendants' instruction would inform the jury that they could not find a verdict for the plaintiff without finding such a vital fact."
Of the cases, quoted from in Part II of the opinion, only Jordan v. St. Joseph Ry., L., H. P. Co., 335 Mo. 319,73 S.W.2d 205, and Kloeckener v. St. Louis Public Service Co.,331 Mo. 396, 53 S.W.2d 1043, are true cases where a danger zone whileapproaching a position of peril is essential to a jury case, as is the case herein. In the Kloeckener case, the evidence showed that the plaintiff was oblivious of the street car and the instruction required a finding of obliviousness. The Jordan case holds that "the element of obliviousness is essential to a case on the humanitarian doctrine for failure to warn;" the evidence therein showed obliviousness; and it held, not that a finding of obliviousness was unnecessary, but that the wording of the instruction therein "expresses the idea conveyed by the term `oblivious to his danger' even more forcibly than would be done by the use of that term." While I question this conclusion as to how clearly the language therein expresses the idea, I agree that the idea conveyed, rather than any fixed words, is what makes an instruction good. *Page 895
Allen v. Kessler (Mo.), 64 S.W.2d 630, and Wenzel v. Busch (Mo.), 259 S.W. 767, were cases where pedestrians made good cases (similar to Banks v. Morris) of being in a position of imminent peril from automobiles; that is, the facts show that the drivers, in each case, had time to prevent any injury by swerving (if nothing else) after such pedestrian was actually in a position of imminent peril. It would seem that in Bryant v. Kansas City Rys. Co., 286 Mo. 342, 228 S.W. 472, there was time to stop (a street car running upgrade at a very slow speed) after plaintiff, a child three and one-half years old, got on the track. The court did not there hold that obliviousness was not an essential element of a humanitarian case, but considered that anyone ought to know that a three and one-half year old child was oblivious to such danger. Nevertheless, the instruction authorizing a verdict therein did require the jury to find obliviousness.
Karte v. Brockman Mfg. Co. (Mo.), 247 S.W. 417, was an intersection collision where an automobile struck a motorcycle and killed the rider. Even there, it seems that a jury case could have been made, after the motorcycle rider got in a position of imminent peril, because the driver had time thereafter to avoid injury to him by swerving. Therefore, as to that part of the case, at least, obliviousness was immaterial. As to a danger zone case, even the defendant's evidence showed that the rider was oblivious and the court said that, if it was necessary to show obliviousness, this "might be taken as a conceded fact in the case;" so if obliviousness was conceded there also was, unquestionably, a good case based on a danger zone whileapproaching a position of imminent peril. However, the conclusion stated in the opinion therein as to obliviousness is wholly non sequitur. It is there said that to require the petition to plead (and to require a finding in instructions) of obliviousness, in that case, "would require the plaintiff to plead that the deceased was not guilty of contributory negligence." That is just the reverse of what it would require, because while a finding of obliviousness of the deceased as to the oncoming automobile, which he could have seen if he had looked, might show that he was guilty of contributory negligence, it could not possibly show that he was not guilty thereof. The fact is, of course, that in most cases ofapproaching the path of a moving vehicle, the personapproaching is oblivious thereto because of his own negligence (which often would even be contributory negligence as a matter of law), but such negligence is not available to the driver of such vehicle as a defense to a case based upon his failure tothereafter do what is required of him by the humanitarian negligence rule.
Thus the very negligence of a plaintiff, which would defeat his recovery for any primary negligence of the defendant, creates the condition (obliviousness) that makes the humanitarian rule applicable so as to place a duty upon the defendant out of which another cause of action arises for plaintiff when he isapproaching a position of *Page 896 imminent peril. A jury cannot know that unless they are clearly so told, and that is why I say that a plaintiff's instruction in such a case, which authorizes a verdict without requiring a finding of obliviousness, is erroneous and prejudicial. It is difficult enough to get a jury to understand how the humanitarian rule operates in approaching cases, and what widens the danger zone therein, when the instructions clearly state the essentials thereof. I think that failure to do so gives them the widest kind of roving commission and permits them to return a verdict upon pure guess, speculation and conjecture.
The judgment should be reversed and the cause remanded. Frank,J., concurs.