Degan v. Jewell

• Citation: 239 S.W. 66,293 Mo. 80
• Decision Date: 14 March 1922
• Docket Number: No. 22019.,22019.
• Parties: DEGAN et ux. v. JEWELL.
• Court: United States State Supreme Court of Missouri

239 S.W. 66

293 Mo. 80

DEGAN et ux. v. JEWELL.

No. 22019.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Owen W. Degan and wife against William A. Jewell. Verdict for defendant, and, from an order granting a new trial, defendant appeals. Affirmed and remanded.

Randolph & Randolph, of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondents.

JAMES T. BLAIR, J.

This is an appeal from an order granting a new trial after verdict for defendant in an action brought by respondents for damages for the death of their three year old son, who was killed by appellant's truck.

Tenth street, in St. Joseph, runs north and south. Corby runs east and west. At their intersection each is 30 feet between the curbs and about 50 feet between the property lines. The truck was used for delivery purposes and was being driven by an employé of appellant. It had stopped some distance north of the street intersection on the east side of Tenth street, and then started south and crossed to the west side of Tenth, and continued on that side southward at the rate of 10 to 15 miles per hour. The child, just before it was struck, was standing on the sidewalk at the northeast corner of the street intersection. The testimony of the one eyewitness, other than the driver of the truck, tends to show that she had seen the child at the place stated.; that she walked eastward a short distance and heard the rattling of boxes in the street; that she turned and looked just in time to see the child fall and the wheels of the truck pass over him; that when he fell the child was going southwestwardly and had reached a point on Tenth about 3 feet west of the street car track, in the middle of Tenth, and about 3 feet south of the south property line of Corby street. The evidence tends to show that the sidewalks were 10 feet wide. The distance the child traveled across the intersection to the point where he fell and was struck, according to the witness referred to, was about 47 feet, as a calculation from the distances given will show. It was necessary for him to pass over the part of the street between the northeast corner of the intersection and the point where the truck ran over him. There was no other vehicle on the street and nothing to prevent the driver from seeing the child in the street. While he contradicts the other witness as to the point of collision, he does say he saw the boy in the middle of the street car track and running southwestwardly when the truck was near the northwest corner of the street intersection. This point is over 40 feet north of the place at which, the first witness says the truck struck the child. The truck must have been north of Corby street when the child left the curb at the northeast corner of the intersection. At the championship speed of 9 3/5 seconds for 100 yards more than 1½ seconds would be required to cover 47 feet. At the best rate of the average man about 2 1/3 seconds would be required. This three year old child could hardly have made it in less than twice this time. Four seconds before the boy was hit, the truck was about 16 feet north of the north curb line of Corby street if it was running 10 miles per hour, and about 45 feet north of the same line if it was running 15 miles per hour. The driver testified it was running 10 to 15 miles per hour. During this time and space the boy was in the street going toward the place where he was about to be run over. The truck was stopped in 8 feet when the brakes were applied. There is countervailing evidence, but it is to he rejected in considering the contention that the case should not have been submitted to the jury.

The ground assigned by the trial court for granting a new trial was that an instruction given for appellant was erroneous. Appellant contends (1) the instruction was not erroneous, or (2) at least not prejudicial, and that (3) no case was made by the evidence.

I. The evidence made a case for submission under the humanitarian doctrine. Cornovski v. Transit Co., 207 Mo. loc. cit. 274, 275, 106 S. W. 51, and cases cited; Turnbow v. Dunham, 272 Mo. loc. cit. 63 et seq., 197 S. W. 103; Spivack v. Bakery Co. (Mo. Sup.) 214 S. W. 166; Frankel v. Hudson, 271 Mo. loc. cit. 503, 504, 196 S. W. 1121. In the cases cited by appellant (Shanks v. Traction Co., 101 Mo. App. 702, 74 S. W. 386; Ries v. Transit Co., 179 Mo. 1, 77 S. W. 734) to support a contrary view, the injured persons were adults. Shanks was deaf and was walking along the track ahead of the car, and the question was whether the motorman discovered his obliviousness of peril as soon as he should have done. Warnings were sounded. No heed was given them. The motorman did not know Shanks could not hear them. In the other case, deceased had stepped from a place of safety to a place in front of a car of the approach of which he knew and was "immediately struck and killed." These decisions are not applicable to this case.

II. Instruction 14 given for appellant reads thus:

"The jury are instructed that, if you should find for the plaintiffs in this case, in estimating their damages you cannot take into consideration any sufferings by reason of the loss of the child, but only can consider the amount which the deceased would have probably earned and accumulated by his own efforts, and which would have gone to the benefit of his parents, taking into consideration all of his surroundings and the probabilities of his earning or not earning, and the probability of his turning it over to his parents and working for their benefit, or not doing so, until he should have arrived at the age of 21 years."

This instruction confines the damages the jury may allow for the death of respondents' son to money the child might have earned during his minority and voluntarily turned over to his parents. The measure of parents' damages for the loss of a minor child is the value of the child's services during his minority, and burial and other expenses incurred by his death or sickness, less the expense of his support and...