Ballman Ex Rel. Ballman v. H. A. Lueking Teaming Co.

219 S.W. 603, 281 Mo. 342, 1920 Mo. LEXIS 21

• Court: Supreme Court of Missouri
• Decided: March 2, 1920
• Status: Published

Opinion

GOODE, J.

The plaintiff had his right arm crushed about the elbow, so as to leave it permanently stiffened, by a motor truck alleged to belong to defendant company and while driven by an employee of it. The accideni occurred at the intersection of Seventeenth and Mullanphy streets, in St. Louis, about seven o’clock and ten minutes, in the evening of October 9‘, 1914. On the trial of this action brought to recover damages for the injury, a heavy verdict was returned in plaintiff’s favor and from a judgment entered thereon, the appeal was taken.

At the date of the accident plaintiff, a boy of ten years of age, was skating with a companion on the roadway of Seventeenth Street, a north-and-south thoroughfare, paved with asphalt, in the block between Mullanphy and Chambers streets, both east-and-west thoroughfares, the latter being to the north. The two boys skated from Chambers along the west side of Seventeenth Street to Mullanphy, and while they were turning around at the intersection of the two streets, intending to go back north along the east side of Seventeenth Street, the left front mud guard of the truck struck plaintiff, whirling him about and throwing him down with his right arm under the truck, so that the left rear wheel ran over it. At the time the other boy, Milton Lammers, was four or five feet behind plaintiff, and the latter was from six to eight feet from the northeast corner of Seventeenth and Mullanphy streets. The automobile was proceeding to its garage, which was east of Seventeenth Street, and had traveled eastward along Mhllanphy for many blocks. Plaintiff testified that when he reached the north curb-line of Mullanphy Street he looked east and west and saw no .vehicle coming from either direction, heard no rumbling of wheels, nor any signal by a horn, bell or otherwise. The boy Lammers, who was six feet or so behind plaintiff, saw the truck coming eastward and in the middle of the block to the west; he heard no signal, but heard the rumble of the truck, which was not very loud.

The driver testified he did not slacken speed as he approached Seventeenth Street and thought he blew the horn, because he generally did. Witnesses, including the boys, testified the words “Rice-Stix Dry Goods Com pany” were painted on the side of the truck, and were visible and read, either in whole or in part, by them. Some of them saw only the words “Rice-Stix.” This testimony was intended to show' the truck which ran over plaintiff belonged to defendant and was operated under a contract between H. A. Lueking and the Rice-Stix Dry Goods Company, entered into July 1, 1934, whereby said •Lueking agreed to do the carting and draying for said Dry Goods Company for one year. Lueking, who was the president of the Lueking Teaming* Company, said he did not know whether or not said company was incorporated at the date of the accident, but an attorney of Rice-Stix Dry Goods Company testified the company was on that date hauling for the Dry Goods Company, and permitting-this testimony to go to the jury; is complained of as an erroneous ruling. It should be said the attorney, when shown the contract, said he was mistaken, and that the hauling*, when the accident occurred, was done by Lueking, individually. He said, however, he knew the Lueking Company did the hauling; for his company from trying a case which arose previous to the accident, where their automobiles were involved; had always tried cases “as being the H. A. Lueking Company.” Two trucks were provided by Lueking with the name “Rice-Stix Dry Goods Company” on them, to be used in performing the aforesaid contract. Lee Arens was the chauffeur who operated one of them and the one charged to have inflicted the .injury in question, and John Amend drove the other. There is testimony pro and con about the visibility of the words on the truck, considering the light by which they must have been read on the evening of the accident. Two gas street lamps were burning at the crossing, one at the northeast and one at the southwest corner. The, testimony is conflicting as to whether the evening was clear or misty at the hour of the accident. It was shown other trucks bearing’ the name “Stix-Baer & Fuller Dty Goods Company” were in use, and that one of them which passed down Mullanphy Street near' the time of the accident, might have caused it, and the witnesses who testified “Rice-Stix Dry Goods Company” was on the truck in question, might have mistaken the name. It was one defense, and some witnesses, including the chauffeur who operated the truck alleged to have hit the hoy, testified that no truck belonging to defendant and operated by its driver, ran over any one the day of the accident. The bearing of other facts upon our conclusions will be understood best if stated in connection" with the propositions to which they are relevant.

Specific acts of negligence are charged in the petition, which may be epitomized as follows: First, in violation of Sub-sectmn 2 of Section 8 of the Laws of 1911, p. 326, the driver of the automobile of defendant which ran over plaintiff, failed to diminish speed, or give timely signals by horn, bell or other device, as he was approaching plaintiff, who was then in the. traveled part of Mullanphy Street, along which the truck was traveling and when it was approaching an intersecting highway. The portion of the statute counted on reads thus:

“Upon approaching a pedestrian, who is upon the traveled part of any highway and hot upon a sideAvalk, and upon approaching an intersecting highway; or a curve or a corner in a highway, where the operator’s vieAV is obstructed, eA^ery person operating a motofi vehicle shall slow down and give a timely signal with his bell, horn or other device for signalling.’.’ [Laws 19.11, p. ,327.]

Second, at the time plaintiff was injured, defendant’s driver in charge of its automobile truck, was operating- it on a public highway in an imprudent manner in this: he failed and neglected to slow the automobile down or give-a timely signal when he was approaching an intersecting highway and also plaintiff, who was on the traveled part of said highway; and negligently drove and operated said automobile at said time and place, at a speed of tAvelve miles an hour, which was likely to and did endanger the life and limbs of plaintiff, in violation of Section 9, Laws of Missouri 1911, page 327. The section counted on in that paragraph of the petition reads.-

“Every person operating a motor vehicle on the public highway of this State shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life and limb of any person: Provided, that a rate of speed in excess of twenty-five miles an hour for a distance of one-half of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent. ’ ’

Third, at the time and place plaintiff was injured, defendant’s said driver was operating the automobile along- a public street at a place much used for travel and where said driver should have anticipated persons were apt to be; and said driver, in violation of Sub-section 9, of Section 12, Laws of Missouri 1911, page 330, negligently failed to use the highest degree of care that a very careful person would use under like circumstances to prevent injury to plaintiff in this: he drove and operated said automobile at a high and dangerous rate of speed, to-wit, twelve miles an hour, along- and across the streets, and neglected to give a timely warning to plaintiff by horn, bell, etc., or to give any signal of the approach of the automobile, after he saw, or in the exercise of the highest degree of care could have seen, plaintiff in a position of danger; that he failed to slow said automobile down or give any signal at all when approaching a highway when his view was obstructed. That paragraph declared on this part of the Act of 1911:

, “Any .persons owning, operating or controlling an automobile running- on, upon, along or across public roads, streets, avenues, alleys, highways or places much used for travel, shall use the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury or death to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways or places much used for travel. Any owner, operator or perison in control of an automobile, failing to use such degree of care, shall'be liable to damages, to a person or property injured by failure of the owner, operator or persons in control of an automobile, to use such degree of care, and in case of the death of the injured party, then damages for such injury or death may be recovered, as now provided or may hereafter be provided by law, unless the injury or death is caused by the negligence of the injured or deceased person, contributing thereto.”

Fourth, said driver, at the time and place of the injury to plaintiff, by the exercise of ordinary care, could have seen plaintiff in a position of peril, in time to have stopped said automobile, or to have slackened its speed sufficiently to avoid hitting and injuring plaintiff; but that said driver negligently failed to use ordinary care or make any effort to stop the automobile or slacken speed. That paragraph states a case of common-law negligence.

Defendant answered by a general denial.

Among the rulings assigned for error, one'relates to an instruction granted at plaintiff’s request and covering all the facts on which plaintiff relied for a verdict. The complaint of this instruction is that, besides setting out the specific acts of negligence charged in the petition and instructing the jury to return a verdict for plaintiff, if they found either of those acts was proved by the weight of evidence, it directed a verdict for Mm if the jury found “defendant’s driver' propelled and operated said automobile in a manner which, under all 'the circumstances mentioned in the evidence, was not careful and prudent.”

Defendant also contends a demurrer to the evidence should have been sustained, because no negligence was proved against defendant or its chauffeur, and contributory negligence on the part of plaintiff was conclusively shown.

Another error alleged is the admission of testimony of several witnesses for plaintiff to prove it was possible to read a sign painted on an automobile which was driven past the- scene of the accident, by way of experiment. This testimony was objected to because the conditions existing at the time of the experiment, February, 1917, a few days before the trial, were not the same as regards the light and the color of the lettering, etc., as were the conditions at the time of the accident.

Still another assignment questions the instruction for plaintiff for particulars apt to confuse and mislead the jury, by assuming facts were established by the evidence when their existence was controverted. We deem these unfounded and will not enumerate them.

Stopping Automobile. I. The case was for the jury on testimony adduced to prove the driver of the truck neither slackened speed as he drew near the crossing, nor signalled his approach ; to prove, too, he could have reduced his speed or stopped before he reached plaintiff and after he knew, or, by watching carefully, could have known plaintiff was in peril from the truck if it proceeded unchecked. An expert chauffeur testified - a truck weighing 6500 pounds and running over a dry pavement at the rate of ten or twelve miles an hour, could be stopped within twenty feet. The speed mentioned was that of the truck charged to have hurt plaintiff at the moment of collision, and though its weight was unproved, from the description of it the inference is fair that it weighed less and could have been stopped as soon as the one the witness mentioned. A chauffeur of defendant who, on the evening of the -accident operated a truck precisely like the one in question, testified he was driving between eight and ten miles an hour and stopped within seven feet; that both trucks were empty. This witness said, too, he could see from Seventeenth to Fourteenth Street, or three blocks, and the driver of the truck in question said the night was clear when he turned in at the garag-e near the time of the accident.

NegSence"y No defense on the score of plaintiff’s negligence was pleaded, and whether he contributed to his injury is of no moment unless the evidence, including his own, shows he did beyond inference to the contrary. [Hudson v. Railroad, 101 Mo. 13.] Even if that inference is unavoidable, the evidence left the jury free to find the chauffeur had a fair chance to avoid running over plaintiff, if the lat ter’s danger, while he was circling round in Mullanphy Street, was apparent to the chauffeur or would have been had he kept a proper lookout. [McGee v. Railroad, 214 Mo. 530; Potter v. Railroad, 136 Mo. App. 145.]

Humanitarian Rule. II. What remains of the inquiry regarding the effect of plaintiff’s movements and neglect to watch out for his safety as participating causes of his injury, is whether he should have been allowed a verdict on any finding other than neglect of the- chauffeur to take measures to avoid vanning against him after his peril became visible. Relevant to this point is plaintiff’s testimony that he looked west when at the north line of Mjallanphy Street and saw no vehicle approaching, also the circumstancé of the truck catching him at the east end of the arc around which he skated in turning northward, and only six or eight feet from the northeast corner of the two streets — a fact tending to prove he was not run over from dashing into Mullanphy Street immediately in front of the truck; and this circumstance is the more significant because- his companion, five or six feet behind him, saw the automobile as he entered Mullanphy Street, half a block away; a distance which afforded the chauffeur time to signal, to veer his machine to the south so as to miss plaintiff, or to stop. The testimony has a tendency, too, to prove the truck was travelling on the left, instead of the right side of Mullanphy Street, when plaintiff was run over. It is true that if plaintiff’s companion saw the truck, plaintiff could have seen it also if he had looked intently; but considering his immaturity, the omission to signal to attract his attention, the habit of city children to play in the streets and the thoughtlessness of boys as compared with men, it was proper to submit the issue of negligence of the chauffeur in ways alleged in the petition other than not doing what he could to avoid the collision, after he knew, or should have known, it was impending. [Moeller v. United Rys., 242 Mo. 721, 727; Fry v. Transit Co., 111 Mo. App. 324.]

Testimony8 III. No error was committed in admitting the testimony of the attorney for the Rice-Stix Dry Goods Company, that the Lueking Company, and not Lueking individually, was doing the hauling of the Dry Goods Company when the accident occurred. The witness: vacillated! in his statements, hut they were for the jury and the objection that they were equivalent to letting the witness interpret the written contract is untenable. He offered no explanation of its meaning, but after it was exhibited to him, merely retracted, in a way, the statement made previously that the Lueking Company did the hauling. Enough testimony was adduced in support of this fact to go to the jury; and so appellant conceded, in effect, by remarking in. its brief that “outside of the-testimony of this witness, there was very little evidence for respondent on this point.”

Tests?™ental IY. Witnesses testified for both parties regarding the visibility of signs painted or hung on the sides of automobiles used in experiments conducted subsequent to the accident; and defendant contends the, ex-perimehts for the plaintiff were made under conditions so dissimilar to those under which the witnesses who testified to reading “Rice-Stix Dry Goods Company” on the truck which ran over plaintiff, as tó render inadmissible testimony of the result of the tests. For this species of evidence to be admissible, the conditions under which the incident in dispute happened, must have been the same in essential particulars as those under which the tests were made. [Riggs v. Railroad, 216 Mo. 304, 327; 1 Wigmore, Evidence, sec. 442; Greenleaf Evidence (16 Ed.), sec. 14b.] Otherwise, the occurrence or non-occurrence of an analogous result during the experiment, may mislead the jury into surmises that have no substantial basis in the facts, instead of aiding them to conclude the controverted incident was or was not possible, or probable. [See Lloyd Chemical Co. v. Rag Co., 145 Mo. App. 675, where the subject is examined and ex cerpts from pertinent authorities quoted.] The issue in the present ease is, could the boys have read the words “Rice-Stix Dry Goods Company,” on the truck as it passed down Seventeenth and Mullanphy Streets, when they were at or near the crossing of those streets, and could another witness, standing one hundred and seventy feet north on the west side of Mullanphy Street, have read them, as he testified he did. The experiment for plaintiff was made February 19th, two years or more after the date of the accident, but when the days were about the same length as they were on said date, at the same hour in the evening and by the same faint daylight and the same degree of illumination from the street lamps. Other conditions were different. A canvas painted green was fastened to the curtains of a passenger automible, six feet above the surface of the street and the words “Rice-Stix Dry Goods Company” were painted on the canvas in white letters. The trucks of defendant with that sign on them were more like express wagons, the lettering was in gilt on the green sides of the bed, three and one-half feet above the surface of the street, and the sides were sunk an inch or so in a panel, and above the panel a sort of flange or wing projected with an upward tilt. At least one of the witnesses of the experiment observed the sign on the side of the passenger automobile while it was motionless and before it was driven past these witnesses. This no doubt enabled him to make out the words of the sign more easily when it was driven past him during the experiment. The conditions under which the witnesses for plaintiff must have read the lettering on the truck the evening of the injury, were not sufficiently reproduced in the experiment for the result to be admitted in evidence.

instruction Y. The main instruction given at plaintiff’s request not only directed the jury to find a verdict for him if the specific acts of negligence declared on had been committed by defendant, but also if the driver pro- '■ pelled. and operated the truck in a manner which, under all the circumstances mentioned in evidence, was not careful and prudent. Such instructions have been condemned repeatedly, for the reason that a defendant who is accused of a negligent tort has the right to be informed what particular negligent acts the plaintiff relies on, so the defendant may prepare to disprove them, if they were not committed. When the petition is general in its charges of negligence, the defendant usually may move for specific averments; and if particular acts are charged, a recovery can be had only on proving the occurrence of one or more of those acts. The rule is expressed with perfect clarity in McManamee v. Railroad, 135 Mo. 440, 447.

Four cases are cited in plaintiff’s brief to support the instruction, but neither of them does in the least. [Cool v. Peterson, 189 Mo. App. 717; Denny v. Randall, 202 S. W. 602; Selinger v. Cromer, 208 S. W. 871; Riggs v. Railroad, 212 S. W. 878.] In the first of those cases an instruction, submitting the facts for which a verdict might be returned for the plaintiff, mentioned, as the opinion said, “the precise-specification of negligence relied upon in the petition.” Another instruction stated, in an abstract way, the duty of the person operating an automobile on a highway to use the highest degree of care; and the court refused to reverse the judgment because of that instruction, as it could not have been misleading when read in connection with the one which required,the jury to find the very acts of negligence alleged as the condition of a verdict for the plaintiff. In the second ease the act complained of was driving an automobile close to and around the team and buggy of the plaintiff at a dangerous speed and carelessly running over the plaintiff’s dog, which was near the team. The court instructed that it was the defendant’s duty to use the highest degree of care that a prudent person would use under similiar circumstances while operating his automobile on. a highway, and if the jury found the defendant, in passing the plaintiff, ran at an excessive speed near his buggy, without using that degree of care and by reason thereof killed the dog, the verdict should be for the plaintiff. The instruction required the jury to find the defendant guilty of the acts of negligence charged to warrant a verdict for the plaintiff. In the third case the plaintiff, who had been struck by an automobile after he had alighted from a street car, alleged the defendant saw, or by exercising ordinary care could have seen, the plaintiff alighting from the car and crossing the street in time to stop his car without striking the plaintiff. The trial court advised the jury that if the defendant, by using the highest degree of care a very careful person would use under like or similiar circumstances, could have discovered the plaintiff’s position in time to have avoided striking him, and she operated her-said machine at said time and place at a high and dangerous speed, and failed to give a signahwith her bell, etc., in time to enable the plaintiff to avoid being struck, etc. The instruction required the jury to find the defendant had been guilty of other acts of negligence than the one alleged, and of that one too, thereby imposing an unnecessary burden on the plaintiff. In the fourth of the cited cases, three careless acts were alleged, and the court, by its principal instruction, put the plaintiff’s right to recover on a finding that the defendant was guilty of all three.

In the case at bar the erroneous clause of the instruction is separated from the rest by the word “or” as ah independent ground for a verdict for plaintiff. It is apparent the cases cited for the soundness of the charge are inapt, and attentive study of them by counsel who wrote the brief would have saved this court the labor of the foregoing analysis.

The judgment is reversed and the cause remanded.

All concur.