Aronson v. Ricker

172 S.W. 641, 185 Mo. App. 528, 1915 Mo. App. LEXIS 33

• Court: Missouri Court of Appeals
• Decided: January 11, 1915
• Status: Published

Opinion

ELLISON, P. J.

Plaintiff’s action was instituted to recover damages for personal injury inflicted upon her by being run over by an electric automobile. She recovered judgment for $3500 in the trial court.

Defendants are husband and wife and at the time of the injury to plaintiff, the car was being operated by the wife, the husband not being present. One of the principal objections to the judgment is, that the evidence failed to make a case for plaintiff sufficient to submit to the jury and that therefore the court erred in not sustaining a demurrer to the .evidence. Plaintiff’s action is presented under the humanitarian rule and unless it be true, as defendants insist, that an action cannot be maintained against the driver of an automobile under that rule, the objection, clearly, is not well taken. For the evidence in behalf of defendants themselves, leaves no doubt that a case was made for a jury. That evidence tended to show that the car was four 'seated, that all the seats were occupied, Mrs. Ricker driving, with a female companion sitting beside her and facing forward, while two other female companions were on the other seat facing to the rear; that the car had a large glass front, but the view straight ahead was obstructed to the driver when persons occupied the front seats, though persons or obstructions, in the street could be seen when not directly in front of the car. The car had a maximum speed of twenty-five miles an hour, though at the time of the injury to plaintiff, it was coasting, that is, going without application of the power, at a speed about equal to a person walking; at any rate, not exceeding three or four miles an hour. It had the best of brakes and, at the speed it was going, could have been stopped almost instantly, Mrs. Ricker stated, in the space of one foot. The place was on Eleventh street between Main and Walnut streets, a business center said to be more thronged with pedestrians and vehicles than any other part of Kansas City. Plain-, tiff and a companion were walking west on the south side of Eleventh street, at about noon; they reached the alley and wishing to avoid the walk along where a new building was being erected, turned from the sidewalk to cross over to the north side of Eleventh street which, at that place, was about forty feet in width between curbs. There was considerable wind and plaintiff walked with her head down holding on to her hat. When they reached. about the center of the street plaintiff was struck by defendant’s car, knocked down and her legs run over by both the front and back wheel of the car. Mrs. Ricker stopped the car in about six feet beyond. . •

She says that the first she saw of plaintiff was when she was right upon her, but it is clear, the circumstances considered, that a jury would have a right to say she could have seen her as she approached the place. The law aids- us in this statement. The statute (Sec. 8523, R. S. 1909) is that the driver of such a machine upon a road or street “much used for travel shall use the highest degree of care that a very careful person would use, under like or similar circumstances.” Considering that Eleventh street, at this point, was a business thoroughfare crowded with people and vehicles, it was Mrs. Ricker’s duty to keep a lookout for persons liable to do just what this plaintiff did, that is, fail to observe every approaching car. It was her duty to keep a • lookout, not only “straight ahead,” but laterally ahead (Holmes v. Ry. Co., 207 Mo. 149, 163) and this she could have done, even though she allowed her companions, on the other seat, to obstruct her view, immediately in front.

Mrs. Ricker stated that she was moving so slowly that she could have stopped in one foot, yet she was going with sufficient force and swiftness to knock plaintiff down and run over both of her legs and six feet beyond before she stopped. This would leave the' jury with the right to say. she was either going at a very rapid speed or that she was not diligent in attempting to stop.

So it seems too clear for argument that a case was made for plaintiff and that too without calling to her aid the greater part of the evidence in her own behalf. In Ostermier v. Implement Co., 255 Mo. 128, we find the following portion of Judge Scott’s opinion in Vaughn v. Scade, 30 Mo. 600, involving the duty of drivers and. of horses attached to vehicles, quoted and specially stated to be the law applicable to automobiles: “He who undertakes to drive a carriage in a crowded street must exercise a diligence proportionate to the dangerous nature of that employment. He must know that there are women and children in the street, and that their necessities compel them to be there. If one is found off the crossing, he is not therefore liable to be run over. When, by a diligence proportionate to the nature of the service in which one is employed, he can avoid injuring one who is found off the crossing, it is his bounden duty to use reasonably that diligence in order to do so.” We therefore pass to the point referred to above, that the. humanitarian rule does not apply to personal injuries inflicted by electric or other automobiles. The statute aforesaid, after declaring the care to he used by drivers of such machines and the liability incurred for injuries, adds the words “unless the injury or death is caused by the direct negligence of the injured or deceased person contributing directly thereto.” This no more disallows the application of the humanitarian rule than does section 5425, Revised Statutes 1909, which declares that the injured party’s negligence may be shown “as a defense to the action;” and we held that the latter “phrase was not intended to annul the humanitarian rule;” that it was not intended to permit one person to kill another, when he could avoid it, “simply because such person was negligent.” [Burton v. Ry. Co., 176 Mo. App. 14, 19.]

It is contended by defendants that as the wrongful act of negligence was done by Mrs. Ricker alone in her husband’s absence and without his knowledge, she alone is liable. This contention is based on section 8304, Revised Statutes 1909, of the Married Woman’s Act, authorizing her to transact business on her own' account and to sue and. be sued without joining her husband. At common law the husband is civilly liable for the torts of his wife, though committed out of his presence and without his authority. Though several wrongdoers are jointly charged with conspiring and combining in the commission of a wrong, yet, as the charge of conspiracy is mere aggrevation, and the damage is the gist of the aetion, you may recover judgment against the one shown to have done the wrong, though you fail to prove the conspiracy. [Hunt v. Johnson, 23 Mo. 432; Hutchins v. Hutchins, 7 Hill, 104; Van Horn v. Van Horn, 56 N. J. Law, 318; Branklev v. Platt, 40 Md. 529; Porter v. Mock, 50 W. Va. 581.] But if you insist upon a judgment against several conspirators, you must prove the conspiracy or combination between them. [Laverty v. Vanarzdale, 65 Pa. St. 507; Hutchins v. Hutchins, 7 Hill, 104; Porter v. Mock, 50 W. Va. l. c. 584, 585; 586; Brankley v. Platt, 40 Md. l. c. 533; Van Horn v. Van Horn, 56 N. J. L. l. c. 322.] And if the wrong is such that it can only be committed by a combination or conspiracy of two or more, then you must prove the conspiracy. [Collins v. Collins, 117 Pa. St. 35; Rundell v. Kalbfus, 125 Pa. St. 213; 8 Cyc. 692.]

The foregoing is the rule where husband and wife are joined as defendants charged with combining and conspiring to commit the wrong. [Nichols v. Nichols, 147 Mo. l. c. 392 (instruction 3); Leavell v. Leavell, 114 Mo. App. 24, 32.] Though in the latter case by inadvertence it is said, at top of the latter page, that if the wife alone committed the wrong, out of the presence of the husband, he could not be held. That expression is liable to be misunderstood. In that case the plaintiff (as in the Nichols case) insisted on holding both husband and wife on the charge of having combined and conspired together.

The Married Woman’s Act does not have the effect to change the law thus stated. [Taylor v. Pullen, 152 Mo. 434; Nichols v. Nichols, 147 Mo. 387; Flesh v. Lindsay, 115 Mo. 1; Bruce v. Bombeck, 79 Mo. App. 231; Leavell v. Leavell, 114 Mo. App. 24, 32.] Defendant, however, insists that these decisions were based on other sections of the Married Woman’s statute which relate to liability of her property execution, and her property rights generally, but that section 8304, made the wife “a single woman so far as carrying on her business and suing and being sued is concerned.” We are, however, of the opinion the distinction between these sections does not make the cases aforesaid any less applicable to section 8304, than other parts of the Act.

Far too many instructions were asked by defendant; of these, a large number were given and many refused. Those given covered every branch of the defense, and in connection with the four which were asked by plaintiff, left no room for the jury to be misled.

In view of the evidence on that head, it was not error to refuse to say to the jury, as a matter of law, that it was not negligence in Mrs. Ricker to have four persons in the car. It was not error, in view of instructions given, to refuse instruction 13, concerning negligence. Nor was it error to refuse instruction 16, which declared that Mrs. Ricker was not required to use the same degree of care to look for people on the street not at a crossing, as on such crossings. The statute makes no distinction of - that character. O-n the contrary the care required by the statute is directed to be exercised while driving the machine “on, upon along or across public streets. ’ ’ Besides the- instruction was properly refused under the view expressed in Ostermier v. Implement Co., 255 Mo. supra.

Instruction number 11, as offered by defendants, would have cut out plaintiff’s right under the humanitarian rule. The qualification added by the court put that phase of the case in the instruction and was, of course, proper.

Complaint is made of the refusal of defendants 27th instruction wherein the jury was told that if “the plaintiff had the last clear chance to have avoided the accident and carelessly and negligently failed to do so,” she could not recover. The instruction was not proper. It omits the necessary hypothesis of plaintiff being aware of the fact that she was to be immediately run over, unless she stepped aside. There were some other objections made which we think are not substantial.

The criticisms made of plaintiff’s principal instruction as set out in defendant’s 13th point are technical and unsubstantial. _

There was evidence that plaintiff shortly after her injury was operated upon for appendicitis and for tumor and defendants insist that while no damages were asked on account of the tumor, yet they were allowed for appendicitis, when (as they insist) there was no evidence connecting the latter ailment with the injury inflicted by the machine. Whether appendicitis could result from the injury and whether it did result, was made a sharp issue at the trial. There was substantial and trustworthy evidence supporting the affirmative of those issues and under a familiar rule we cannot interfere With the action of the jury.

We think defendant’s insistence that the verdict for $3500 is excessive, has no support in the record. Plaintiff was struck by a machine weighing without counting occupants, 3500.pounds, running on hard rubber tires at a speed sufficient to knock her prostrate on the street, run over both legs with both the front and rear wheels and several feet further, before it could be stoppel with emergency brakes. The suffering which she, and other witnesses, say followed can well be believed, and hence the recompense to her is by no means too large.

It seems that the trial court put additional questions to witnesses. Defendants say that thereby their case was prejudiced in the minds of the jury. We have examined the record and find the court in no way abused the discretion it has in that respect.

Finally complaint is made as to remarks said to have been made during a recess of the court by one of plaintiff’s counsel to two of defendant’s counsel, when a juryman was nearby, .to the effect that, the case was being defended by insurance companies. This was not called to the attention of the court until seven days after the trial. It was the duty of defendant’s counsel to have immediately reported to the court and not waited to see if. his client would prevail. If we concede the-remark was heard by the juryman, it cannot avail defendant in the circumstances stated.

After a full examination of the record we are satisfied that no error was committed and that the judgmeat was for the right party and it is therefore affirmed.

All concur.