McKenna v. Lynch
| Decision Date | 11 July 1921 |
| Docket Number | No. 22050.,22050. |
| Parties | McKENNA et al. v. LYNCH. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; George H. Shields, Judge.
Suit by Florence McKenna and others, by Annie Green, their guardian, against Joseph A. Lynch. From judgment for plaintiffs, defendant appeals. Judgment reversed, and cause remanded.
Bryan, Williams & Cave, of St. Louis, for appellant.
John C. Robertson and Phil. H. Sheridan, both of St. Louis, for respondents.
This is a suit by the guardian of the minor children of Michael McKenna, deceased, to recover of the defendant damages, to said minor children for the death of the said Michael in February, 1918, resulting from being struck by an automobile driven by defendant at the time westwardly along Laclede avenue in the city of St. Louis between Vandeventer and Sarah. The deceased at the time of, his death was 48 years old, and was a molder, earning approximately $1,000 per year. He left surviving him four minor children, a girl 14, and three boys, aged 13, 12, and 9 respectively.
The plaintiff's petition contains charges of " negligence sufficiently broad to cover the instructions given to the jury. The answer raised the issue of contributory negligence.
There was evidence tending to show that at the time of the accident it was dark, there being some dispute as to the nearness of a street lamp to the exact scene of the accident; that the point of the accident was in the middle of the block, and at a point other than a regular pedestrian's crossing; that defendant was driving west at a speed in excess of the rate provided by ordinance, which ordinance was pleaded and proven by the plaintiff; that the defendant was accompanied by one I. B. Bowen, and this witness and the defendant both testified that as they drove west from Vandeventer avenue and approached the scene of the accident the headlights were burning, and that they were both looking straight ahead all of the time.
The defendant testified that on account of the condition of the weather he could only see directly ahead of him and a little to each side of the machine; that he could see the street ahead of him within the radius of his headlights, and that within that radius he could see approximately 100 feet; that he came west, driving at about 12 miles an hour; that he was looking ahead all the time; that when he first saw McKenna the latter was about 10 or 12 feet directly ahead of the machine, in front of the left wheel; that he saw him suddenly, and did not know where he came from or what he was doing, though he appeared to be walking in the same direction in which he (defendant) was going; that he had been looking straight ahead before he saw McKenna, and when he saw him he threw off his power and applied his brakes and threw out his clutch and tried to turn his car; that they came to a sudden stop, his car having skidded to an angle of about 45 degrees with the curb, and headed northwest; that the front end of the machine skidded around; that the machine did not pass over him; that after the machine was stopped McKenna was lying about 15 feet from the left rear wheel; that under the conditions as they existed at the time of the accident he could stop his Ford in about 15 feet; and that on this particular occasion he traveled about 15 feet after he tried to stop his car, although on cross-examination he admitted that his car moved a distance of approximately 45 feet after he first saw McKenna.
The testimony of defendant was corroborated by that of Bowen in all essential particulars. No other witness saw the deceased prior to the accident.
Defendant sounded no horn or other warning, and there was evidence tending to show that the defendant's automobile could, under the facts and circumstances shown in the evidence, have been stopped after the defendant saw the deceased, if the defendant had been driving at the rate of speed provided in the ordinance, or at a lesser rate of speed.
On the other hand, there was evidence tending to show that the automobile of the defendant could not, under the circumstances shown in the evidence, have been stopped after the defendant saw the deceased, even though the defendant had, at the time, been going at the ordinance rate of speed, or even at a lesser rate than that fixed by the ordinance.
The verdict and judgment were for plaintiffs. Defendant appeals.
The assignments of error are all predicated on the action of the court in giving and refusing instructions. Among others, the following instruction was given at plaintiff's instance:
"You are further instructed that the burden of proving contributory negligence on the part of the deceased, Michael McKenna, is...
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