Collins v. Leahy

• Citation: 102 S.W.2d 801
• Decision Date: 02 February 1937
• Docket Number: 22,876
• Parties: VERLYN COLLINS, an infant, by ETHELRINE GREGG COLLINS, her next friend, Respondent, v. JOHN LEAHY, Appellant
• Court: Court of Appeal of Missouri (US)

102 S.W.2d 801

VERLYN COLLINS, an infant, by ETHELRINE GREGG COLLINS, her next friend, Respondent, v. JOHN LEAHY, Appellant

No. 22,876

Court of Appeals of Missouri

February 2, 1937

Appeal from the Circuit Court of the City of St. Louis, Mo. Division No. 18. Honorable M. Hartmann, Judge.

REVERSED AND REMANDED.

Jefferson D. Hostetter, Presiding Judge. Becker and McCullen, JJ Concur.

OPINION

Jefferson D. Hostetter

This Is an action for damages growing our of personal injuries resulting from a collision with an automobile driven by Ernest L-Compton, colored chauffeur for defendant. The plaintiff, Verlyn Collins, is a colored girl, ten years of age at the time of the accident, who sued by her mother Ethelrine Gregg Collins, as next friend.

The accident occurred on October 31st, 1930, about two o'clock P.M., on Finney Avenue in the City of St. Louis, near 3704 Finney, where plaintiff resided with her mother, and the suit was begun in the circuit court of the City of St. Louis on January 16th, 1931, and the cause was tried on December 12th and 13th, 1932.

Plaintiff's amended petition contained eight specific charges of negligence on the part of defendant's chauffeur, towit:

First. In operating the automobile at a high, excessive, unreasonable and dangerous rate of speed under the circumstances.

Second. In failing to give or sound any warning of the approach or movement of the automobile.

Third. In failing to swerve, slow down, or stop the automobile so as to avoid striking plaintiff, when, in the exercise of the highest degree of care, he would have done so, and, did negligently swerve the automobile so as to collide with plaintiff.

Fourth. In negligently failing to avoid striking plaintiff under the requirements of the humanitarian doctrine.

Fifth. In failing to exercise the highest degree of care to keep a watch ahead and to the side for persons and vehicles on the street and approaching his pathway.

Sixth. In failing to keep a vigilant watch for persons or vehicles in or approaching his pathway when by doing so he could have seen plaintiff in time to have stopped, slackened speed, or given warning and have avoided striking plaintiff.

Seventh. In failing to operate and drive the automobile in a careful and prudent manner and in operating it so as to come in contact with plaintiff.

Eighth. In failing to operate the automobile at a rate of speed, so as not to endanger the life or limb of others and in operating it at such a rate of speed so as to strike plaintiff.

Defendant's answer consisted of a general denial and a plea of contributory negligence in this, that plaintiff, at the time and place mentioned in her amended petition, carelessly and negligently ran into the traveled portion of Finney Avenue from the north curb thereof without looking for vehicles or traffic in said street and ran against the right side of defendant's automobile, when, by the exercise of ordinary care plaintiff would have looked and could have seen defendant's automobile being driven westwardly on said street in the proper line of travel for westbound vehicular traffic in time for her to have stopped and permitted the automobile to have passed and thereby avoided her injuries and that plaintiff negligently failed so to do.

At the close of plaintiff's testimony the defendant offered, an instruction in the nature of a demurrer to the evidence, which was refused, and, at the close of all the testimony defendant offered a similar instruction, which was also refused.

The plaintiff then abandoned all the charges of negligence except negligence under the humanitarian rule, set out in Plaintiff's Instruction No. 1, which is as follows:

"The Court instructs the Jury that if you find and believe from the evidence that on the occasion in question, the plaintiff was a pedestrian in and upon the traveled portion of Finney Avenue, at or near Spring Avenue, and that plaintiff then and there collided with and was injured by the automobile being operated by defendant, his agent and servant, and that at and prior to the time the said automobile came in contact with plaintiff, she became and was in a position of imminent peril of being struck and injured thereby, and that defendant, his agent and servant, saw or by the exercise of the highest degree of care could have seen said plaintiff in such position of imminent peril, if you so find, in time for defendant, his agent and servant, thereafter, by the exercise of the highest degree of care, with the means and appliances then at hand and with reasonable safety to said automobile and himself, to have stopped the said automobile, slackened the speed thereof, swerved the same, or given warning of its approach, and that defendant, his agent and servant, could thereby have prevented said automobile coming in contact with plaintiff, and that defendant, his agent and servant, failed to do so, and in so failing, if you so find, was negligent, and that said automobile did come in contact with and injure plaintiff, as a direct result of such negligence, if you so find, then the Court instructs you that even though you further find from the evidence that plaintiff was herself negligent in getting into or becoming in such position of imminent peril, if you so find, nevertheless your verdict must be in favor of the plaintiff, and against the defendant."

The court, at the request of defendant, gave six instructions, viz: instructions numbered 5, 6, 7, 8, 9 and 10. Defendant's Instruction No. 7 reads as follows:

"The Court instructs the jury that you cannot consider any negligence on the part of the driver of defendant's automobile, if you find there was such negligence, which occurred antecedent or prior to the time that plaintiff came into a position of imminent peril, if you find she did come into such position."

The jury returned a verdict in favor of the plaintiff for $12,500. The court required a remittitur of $4,000 as a condition for the overruling of defendants motion for a new trial. Thereupon the plaintiff remitted the sum of $5000 from the judgment, leaving the amount of the judgment $7500 and the motion for a new trial was overruled. In due time thereafter defendant perfected his appeal to this Court.

The facts are substantially as follows:

The plaintiff was sent by her mother to a store on Spring Avenue for a can of Dutch Cleanser. Spring Avenue comes into Finney Avenue from the north, and ends there. Plaintiff, in order to go to the store, had to cross Finney Avenue as her residence was on the south side of that street, and a short distance west of where the accident occurred. The plaintiff, after procuring the Dutch Cleanser at the store, on her return stopped on the curb of the northeast or northwest corner of Spring and Finney Avenues. Plaintiff testified that before stepping down from the curb into the street she looked east towards Grand Avenue and saw no cars coming, then she looked west towards Vandeventer and saw no cars, then she started across the street, heard no horn, and then, at about the middle of the street she was hit without seeing the object that hit her. After the accident her body was found lying on the north rail of the eastbound street car track.

Measurements taken on the north side of Finney Avenue showed distances as follows: From the west line of Grand Avenue to the east line of Spring Avenue is 923 feet. From the west line of Spring Avenue to the east line of Krum is 615 feet. From the west line of Krum to the east line of Vandeventer is 491 feet. The width of Finney Avenue from curb to curb is forty-two feet. The width of Spring Avenue from curb to curb is thirty-six feet.

The defendants chauffeur, Ernest L. Compton, testified that he turned into Finney Avenue at Grand Avenue and was driving west on Finney on the west bound car track going at the rate of twenty to twenty-five miles an hour; that going at that rate of speed he would take anywhere from twenty to forty feet within which to stop, and that twenty feet would be the best he could do; that he first saw the child at the northeast corner of Spring' and Finney just about to step into the street, and that at that time she was at about twenty feet on an angle from the front of his car; that she was running south across the street and running right to the front of the car, which was a foot anyway away from her; that the front of the car did not strike her; that when he got the car straightened out and stopped, he looked back and saw the child lying on a rail of the westbound car track; that when he got his car stopped he ran back and picked her up and took her back and got two colored women who were coming up the street to get in the rear seat to hold the girl on their laps and he took her to the City Hospital.

Eye witnesses of the accident, on behalf of the plaintiff, testified that she was walking, not running, and that she was struck by the right hand front fender and that her body was found lying in the middle of the street, some placing it on the westbound car track and others placing it on the eastbound car track.

Earl Kleinecke, witness for plaintiff, testified that being a salesman for the Poole-Maytag Washing Machine Company of 1045 North Grand, he operated an automobile in his business and saw the accident; that when he first saw the car which struck the colored child it was traveling at the rate of forty or forty-fire miles per hour and at the time it struck the child was going at pretty near that rate of speed; that he was just pulling away from the curb on the north side of Finney Avenue, where his car had been parked about fifty or seventy-five feet west of Grand, when this touring car passed him; that this car which struck the child was traveling more in the middle of the street as...