Lee v. Jones

• Citation: 79 S.W. 927,181 Mo. 291
• Parties: ARTHUR LEE, by Curator, v. JONES, Appellant
• Decision Date: 29 March 1904
• Court: United States State Supreme Court of Missouri

79 S.W. 927

181 Mo. 291

ARTHUR LEE, by Curator, v. JONES, Appellant

Supreme Court of Missouri, First Division

March 29, 1904

Transferred from St. Louis Court of Appeals.

Reversed.

Charles M. Napton for appellant; Judson & Green of counsel.

(1) The court erred in submitting this cause to the jury: (a) Because there was no substantial evidence of negligence on the part of defendant. Payne v. Railroad, 136 Mo. 562; Schmitz v. Railroad, 46 Mo.App. 387; Pueschell v. Iron Works, 79 Mo.App. 464; Lien v Railroad, 79 Mo.App. 479; Spohn v. Railroad, 87 Mo. 84; State v. Nelson, 118 Mo. 124; Empey v Railroad, 45 Mo.App. 422; Lionberger v. Pohlman, 16 Mo.App. 392; Walton v. Railroad, 49 Mo.App. 620; Powell v. Railroad, 76 Mo. 84; Commissioners v. Clark, 94 U.S. 284; Avery v. Fitzgerald, 94 Mo. 207; State ex rel. v. Lindsay, 73 Mo.App. 473; Callahan v. Warne, 40 Mo. 135. (b) Because, under the evidence of this case, negligence could not be inferred from the mere fact of the collision and injury of plaintiff. Green v. St. Louis Cooperage Co., 50 Mo.App. 202; Murphy v. Railroad, 115 Mo. 111; Carvin v. St. Louis, 151 Mo. 334; Furnish v. Railroad, 102 Mo. 438; Railroad v. Crawford, 24 Ohio St. 361; Yarnell v. Railroad, 113 Mo. 570. (2) But, even if we assume for the argument that there was sufficient evidence of defendant's negligence to authorize a submission to the jury, yet plaintiff admitted that he was guilty of such contributory negligence as will bar his recovery, and the court should have peremptorily instructed the jury to find for the defendant on that ground. Hogan v. Railroad, 150 Mo. 36; Matthews v. Railroad, 142 Mo. 645; Meyer v. Railroad, 6 Mo.App. 27. (a) A boy nine years of age, of ordinary capacity for one of that age, who has been continually warned and cautioned by his mother as to the dangers of playing in the public streets, is as to such matter sui juris; and if he races down the center of a public street which is in constant use, looking backward and making no attempt to watch for other pedestrians, and is injured as a result of such carelessness, he can not recover. Barney v. Railroad, 126 Mo. 392; Spillane v. Railroad, 135 Mo. 414; Graney v. Railroad, 157 Mo. 666; Payne v. Railroad, 136 Mo. 534; Schmidt v. Railroad, 160 Mo. 58; Murray v. Railroad, 93 N.C. 92; Tucker v. Railroad, 124 N.Y. 308. (b) When he is able to fully comprehend the dangers he incurs as the result of his reckless conduct, the contributory negligence of a child of nine years is determined by the same rules and principles as is that of an adult. Payne v. Railroad, 136 Mo. 584; Messenger v. Dennie, 137 Mass. 197; Twist v. Railroad, 39 Minn. 164; McPhillips v. Railroad, 12 Daly 365; Wendell v. Railroad, 91 N.Y. 420; Ecliff v. Railroad, 64 Mich. 196; Masser v. Railroad, 68 Iowa 602; Padgitt v. Moll, 159 Mo. 143.

A. R. Taylor for respondent.

VALLIANT, J. Brace, P. J., and Robinson, J., concur; Marshall, J., concurs in the result.

OPINION

VALLIANT, J.

The petition states that the plaintiff, a boy nine years old, was lawfully on Cardinal avenue, a public street in St. Louis, on July 20, 1895, and the defendant "negligently rode and drove a bicycle, on which he was mounted, violently and with great speed and force against the plaintiff's face and jaw," and thereby inflicted certain injuries, for which he asks damages.

The answer is a general denial, followed by a detailed statement going to show that the accident was not caused by any act of the defendant but by the negligent act of the plaintiff running against the defendant's bicycle knocking it down and throwing the defendant into the street.

Reply, general denial.

At the trial the plaintiff's testimony tended to prove as follows:

Cardinal avenue is a public street in the western part of the city; it begins at Olive street and runs south, crossing Pine, which is the street next south of Olive. Half way between Olive and Pine, and parallel with those streets, an alley crosses Cardinal avenue. The plaintiff and two other boys were running a race in Cardinal avenue, the plaintiff being on foot, the two others on bicycles. They lined up for the race on the east side of Cardinal avenue, near the intersection of Olive street, to run south towards Pine street, the plaintiff being near the center of Cardinal avenue, the boys on the bicycles being between him and the curb of the east sidewalk. They ran from the starting point, the plaintiff leading in the race and looking back from time to time over his left shoulder towards his competitors, and when they reached a point just south of the alley the plaintiff came into collision with the defendant who was riding a bicycle going in the opposite direction; the plaintiff's jaw came into violent contact with the handle of the defendant's bicycle, with the result that the plaintiff's jawbone was broken and the defendant was thrown into the street with his bicycle upon him.

The mother of the plaintiff testified that she was standing in the back porch of the house at the northeast corner of Pine street and Cardinal avenue looking north and saw the boys lined up to run the race; that she raised her hand to call her son and just as she did so "some object flew by me right by the porch; I saw some object pass me rapidly, I could not tell what it was, and just then it struck Arthur and he fell to the street." She said that when the object struck the boy they "fell in a heap, the man on top of the child." On cross-examination she said that when she first saw the boys and was about to call her son they were at the head of the street in a line to start the race and Arthur had his head turned towards the other boys ready to start, but when the collision occurred they were running.

The plaintiff's own testimony was: "How were you running, straight down the street? Yes, sir. How were you with reference to being in the middle of the street? I was right in the middle. Right in the middle? Yes, sir. What were you doing when you were struck? I was looking around. Looking around at what? At Frankie Fry. Which side of Frankie? Which side of Frankie were you on? I was on the right side. Which side of Arthur Prewitt were you on? I was on the right side. They were both between you and the east curb of Cardinal avenue? Yes, sir. What was the first thing you knew about being hurt? Something struck me right -- Were you looking to the right or -- No, I was to the left. Were you looking back or were they even with you? I was looking back. You say the first thing you realized something hit you? Yes, sir."

The plaintiff's evidence also showed that the child was taken to the office of Dr. Prewitt which was very near and while the doctor was examining the injury the defendant came in and told the doctor that he had run into the boy, but disclaimed responsibility for the act, and said that he would pay the doctor's bill.

At the conclusion of the plaintiff's evidence the defendant requested an instruction in the nature of a demurrer to the evidence, which the court refused and defendant excepted.

Defendant's testimony was to the effect as follows:

There was an establishment at the southwest corner of Olive street and Cardinal avenue where bicycles were kept for sale and lessons in bicycle riding were given. Defendant for some two weeks or more had been taking lessons at that establishment in the art of riding a bicycle, and on this occasion was practicing riding in the street. His course was south on the west side of Cardinal avenue to Pine street, thence crossing to the east side of the avenue, returning passing north on that side to Olive street, thence west to the point of beginning. He had made two or three of these circuits, going at a moderate speed, when, after turning north, he noticed the boys in the street and to avoid them he veered his course to the west, rang and continued ringing the bell on his bicycle, and when he had thus reached the middle of the street, still veering to the west and ringing his bell, the plaintiff, running and looking backwards, ran against defendant's bicycle and threw him to the ground with the bicycle on top of him; the plaintiff himself was not knocked down, but was struck in the face, and when the defendant arose, seeing that the child was hurt and his face bleeding, he took him to a doctor's office which was very near, and while there, learning the mother of the child was not a person of means, he requested the doctor to do whatever was necessary and send his bill to him.

The cause was submitted to the jury on an instruction asked by the plaintiff to the effect that if while the plaintiff was in the street defendant rode a bicycle against him, breaking his jaw and injuring his teeth, and if the jury further find from the evidence that defendant did not exercise ordinary care in so running said bicycle against the plaintiff, then the plaintiff was entitled to recover, if the jury should find that at the time he "was exercising ordinary care according to his age, intelligence and discretion, and such care as a boy of his age, intelligence and discretion ordinarily uses under the same or similar circumstances."

The instructions for the defendant directed a verdict in his favor unless the jury were satisfied by a preponderance of the evidence that the plaintiff's injuries were the result of the defendant's negligence alone; that...