ON MOTION FOR REHEARING. The motion challenges the statement in the opinion that "at the instant Goodson discovered he was in danger of being *Page 670 run over by the third automobile, he was out of the path or course of the truck, he became confused, suddenly jumped back toward the south and was instantly struck by the corner of the truck's left fender."
The motion asserts that Goodson never got further than six feet from the south curb of Locust Street, while the left side of the truck was eight or ten feet from said curb, as said truck approached from a point more than thirty-five feet away; that Goodson was in the path of defendant's truck and in danger therefrom at the time he moved or jumped and had been in said position of danger while the truck ran the aforesaid distance toward him, and that the truck could have been stopped within six feet.
The opinion quotes in part the testimony of Will Mays, the only eye witness offered by plaintiff as to the facts of the accident. Further on Mays testified:
"I saw Goodson about six or eight feet from the curb, and several feet east of the east curb line of Seventeenth Street. Mr. Schwandt was also looking ahead. At the time I saw Mr. Goodson six feet or so from the south curb line of Locust Street, he had cleared the path of Mr. Schwandt's machine. Mr. Goodson was at that time to the left of Mr. Schwandt's car. There were two cars abreast at this time; and the third car came around, and Mr. Goodson got afraid and jumped back and Mr. Schwandt's left fender struck him. It was a sudden jump. . . . When the third car came around, Mr. Goodson was to the front and to the left, and when the third car came on top of him he jumped back."
Reading this in connection with the testimony of the witness quoted in the opinion, it is apparent that when the witness stated Goodson "proceeded about six feet north into the street," he was merely estimating the distance Goodson walked from the curb into the street; the other statement is definite and distinct, that "at the time I saw Mr. Goodson six feet or so from the south curb line of Locust Street, he had cleared the path of Mr. Schwandt's machine. Mr. Goodson was at that time to the left of Mr. Schwandt's car."
There is no escape from the conclusion that, on the testimony of plaintiff's witness as to the accident, Goodson had walked directly north into Locust Street until he had cleared the path of Schwandt's car and was to the left of it and was out of danger of being struck by it when, on account of the sudden movement of the third car going westward, he became alarmed, suddenly jumped backward, and was struck by the left front fender of Schwandt's truck. This is the testimony of plaintiff's witness, and it is corroborated by the testimony of the two witnesses for the defendants who were in Schwandt's truck at the time. The evidence precludes the theory that Schwandt failed to exercise diligence to avoid striking Goodson after his peril was or should have been discovered. *Page 671
Respondent submitted the case by instructions to the jury solely on the last chance or humanitarian doctrine; that is, that Schwandt negligently failed to stop the truck after he could have seen that said Goodson was in a position of peril. The defendants offered separate demurrers to the evidence at the close of plaintiff's case and again at the close of all the evidence. These demurrers were overruled. Thereafter the court gave defendant's Instruction 8, which reads:
"The court instructs the jury that if you find and believe from the evidence that at the time immediately before the accident when the car which Schwandt was operating approached Frank Goodson, if you so find, the said Frank Goodson was to the left and clear of the path of the truck which Schwandt was operating at the time, if you so find, and that Frank Goodson suddenly jumped into the path of the eastbound truck in question in this case, if you so find, and at the time he first came into a position of danger it was too late for the driver to have prevented the accident, if you so find, and if you further find and believe from the evidence, that his act in so doing, if any, was the sole cause of the accident which caused his death, then plaintiff cannot recover, and your verdict must be for the defendants."
It is contended that by submitting the case upon the humanitarian doctrine, appellants are estopped to say there is no evidence warranting the submission of the case on that theory. Counsel cite Torrance v. Pryor, 210 S.W. 430; see, also, State ex rel. v. Allen, 308 Mo. 490.
In addition to pleading the humanitarian theory, the petition assigned as negligence that the defendants operated the truck at an excessive and dangerous rate of speed; failed to maintain a watch ahead of the motor truck; negligently failed to stop said truck or slacken its speed as it approached Goodson and failed to warn him of the approach of the truck.
It is contended that respondent made a submissible case on the last-chance doctrine or humanitarian theory, but it is not claimed that a scintilla of evidence was offered in support of any other assignment of negligence; in fact they were disproved by the plaintiff's evidence, as well as by all the evidence in the case. It was shown by all the evidence that Goodson was out of the path of the truck and that he suddenly jumped backward and was struck by the left front fender of the truck. This fact put plaintiff out of court on any theory of the case. Therefore, when the general demurrers were offered, the court was advised that the defendants claimed that no case was made under the humanitarian doctrine, since plaintiff's evidence affirmatively disproved all other assignments of negligence. In these circumstances there can be no question that the defendants *Page 672 may urge their demurrers on appeal. As said in the Torrance case, 210 S.W., top col. 1, p. 433:
"This, for the reason that, after defendant has made his point clear, he is not estopped by the theory contained in his other instructions, which theory is forced upon him by the action of the court. To illustrate, if plaintiff's case is founded upon several alleged acts of negligence, and defendant, by demurrer, challenges the sufficiency of the evidence as to one of the grounds of negligence, it should not be said that he is precluded from asking instructions on the theory adopted by the court in overruling the demurrer. To so hold would force the defendant to stand upon his demurrer before the jury. But the supposed case is not this case. Here the demurrer challenged the whole case, andthe evidence upon all of the several alleged grounds ofnegligence. In overruling such a demurrer, the court does not indicate its theory upon any particular ground of negligence." (Our italics.)
As heretofore stated, it was distinctly and definitely proved by plaintiff's witness that while Goodson was out of the path and to the left of defendant's truck, he suddenly jumped back and was struck by the left front fender of the truck. This was the proximate and sole cause of his death. There was no proof offered to sustain any assignment of negligence; in fact, plaintiff's evidence disproved all of them. But if there had been proof to support other averments of negligence, the fact that Goodson suddenly jumped back and was struck by the fender and so sustained injuries from which he died, defeated plaintiff's cause of action. Hence the reason for the rule applied in the Torrance case had no application to the facts in this case. We think the motion for rehearing should be overruled and it is accordingly so ordered. Blair and Walker, JJ., concur; White, P.J., absent.