Anderson v. Prugh
| Decision Date | 08 February 1954 |
| Docket Number | No. 1,No. 43609,43609,1 |
| Citation | 364 Mo. 557,264 S.W.2d 358 |
| Parties | ANDERSON v. PRUGH |
| Court | Missouri Supreme Court |
Warren H. May, Louisiana, Evans & Dixon, John F. Evans, Wm. W. Evans, St. Louis, for appellant.
James D. Clemens, Bowling Green, John H. Haley, Jr., St. Louis, for respondent.
This cause comes to the writer on reassignment. The action is for damages for personal injuries sustained by plaintiff, a twelve year old child, when a sled upon which she was riding collided with defendant's automobile. The cause was submitted solely upon defendant's humanitarian negligence in failing to have 'slackened the speed of and stopped his automobile' and to have thereby avoided the collision and injury. Verdict and judgment were for plaintiff for $15,000 and defendant has appealed.
With some modification, we have adopted the statement of facts and certain other portions of an opinion previously submitted for adoption in this case. On December 9, 1950, about 10:30 a. m., the plaintiff and her sister Nettie B. Anderson then eleven years of age, and Paula Ruth Phillips then fourteen years of age, were coasting east down Main Street in the village of Ashburn in Pike County, Missouri. All three girls were on the sled 'belly-buster style.' The plaintiff was lying on the sled first, with Paula Ruth Phillips atop her and plaintiff's sister, Nettie B. Anderson, lying atop Paula. At the intersection of Main Street and the County Road the plaintiff's moving sled collided with the right front wheel and fender of a moving southbound Ford automobile driven by defendant. Plaintiff and the other girls were injured. In an action for damages for personal injuries sustained in this collision, Paula Ruth Phillips recovered a judgment against the instant defendant. See, Phillips v. Prugh, Mo.App., 255 S.W.2d 84.
Main Street, down which the girls were coasting east, was a gravel road the traveled portion of which was about 20 feet wide. It was a 'very sharp hill' sloping down to the east to the County Road. An inference as to the specific grade of the hill could be drawn from the many photographs in evidence. The County Road, upon which defendant was driving south, was a gravel road the traveled portion of which was about 20 feet in width and was 'practically level.' Main Street and the County Road intersect at a right angle at the foot of the Main Street hill down which plaintiff was coasting. The intersection itself sloped a little to the east, but only enough to carry off the water when it rained.
The day was clear and cold with good visibility. Snow had fallen on previous days and both street and road were covered with hard packed snow and ice. At the northwest corner of Main Street and the County Road there was vacant ground, sloping uphill from both roadways. That vacant ground was on plaintiff's left as the sled approached the County Road and was on defendant's right as his car approached Main Street. There were brush and weeds on that hill but not down to the corner where a building had once been erected. Back some fifty feet west of the corner, there was a cut or embankment on the north side of Main Street. From the testimony and the photographic exhibits the jury could have found that from a point on the County Road 40 feet north of the intersection there was visibility up the Main Street hill to the west for 75 to 100 feet; and that from a point on the County Road 20 feet north of the intersection there was visibility up the Main Street hill to the west for 150 to 175 feet.
On the morning in question a number of children were coasting east down the Main Street hill, which was very slick. They were coasting down the south side of the street. Plaintiff was using her 'pretty fast sled.' She testified that at the top of the hill she told one of the boys that 'I was going to beat him down the hill.' The three girls (all on plaintiff's sled) started at the top of the hill, some 300 feet from the intersection. Nettie Anderson gave the sled a push and then jumped on. They coasted down hill about 100 feet to a leveled out place where they were stopped by ashes sprinkled on the snow. Nettie Anderson jumped off, again pushed the sled and then assumed her original position on the sled. The sled then started down the steeper part of the hill. It 'started down the hill pretty fast,' and almost collided with a utility pole which was at the south side of the Main Street hill and about 135 feet west of the intersection. None of the three girls on plaintiff's sled could remember what thereafter happened and none of them remembered seeing the defendant's automobile. The sled with the three girls on it went on down the hill. Entering the intersection the sled and the three girls collided with defendant's automobile with such force that defendant's right front fender was torn loose from the running board of the automobile, the right front tire was punctured and the rim damaged. The impact was in the southwest quadrant of the intersection at or near the center of the south half of Main Street.
The defendant testified that he was driving his Ford Tudor sedan south on the County Road and approaching the Main Street intersection; that the road was covered 'with ice and snow, packed snow * * * the traveled portion of the road was icy'; that in the block immediately north of Main Street his speed was 10 miles per hour; that when approaching the intersection there were no sleds, or persons, or vehicles in, on or crossing the intersection, and he heard no noises of any kind; that as he entered the intersection his wife (seated to his right) screamed and something hit the side of the car; that he had only a 'glance' or 'glimpse' of whatever hit his car but could not distinguish what it was; that it was 15 or 20 feet from his car when he had the 'glimpse' of it; that his car was then moving about 10 miles per hour; that he immediately and as quickly as he could applied the brakes but his car had not perceptibly slowed, or 'scarcely at all,' at the time of the impact; and that, when he jumped out of his Ford automobile, the three girls were lying in the intersection. Upon his deposition, read in evidence, defendant testified that at 10 miles per hour, 'I suppose it would have taken 10 or 12 feet to have stopped.' Upon the trial, defendant testified that allowing for reaction time, 'I believe it would have taken ten feet to stop after I got my foot on the brake.' Defendant's wife testified that defendant's automobile came to a stop 'within about six or eight feet from the time' she first saw the children on the sled. There was further evidence that, the automobile came to a stop after it had fully crossed the intersection.
Defendant-appellant assigns error on the trial court's action (1) in admitting certain evidence, (2) in refusing to direct a verdict for defendant, and (3) in giving Instruction 1. Appellant further contends that the verdict for plaintiff for $15,000 is excessive.
With reference to the admission of alleged improper evidence, the trial court permitted witness Courtney L. Phillips (who came to the scene of the accident after the collision had occurred) to testify (over defendant's objections), that in his opinion the maximum speed which a sled would attain coming down the Main Street hill in question under the existing circumstances would not have been faster then 20 miles an hour. Mr. Phillips testified that: he did not see plaintiff's sled on the hill or at any time until after the accident had occurred; that he had observed other sleds come down that hill with three people on them on other occasions; and that he never, by any device, measured the speed of a sled in No evidence was offered as to the actual speed of the sled. It 'could go pretty fast down hill.'
In plaintiff's brief her counsel assert the materiality of the above testimony in these words: In plaintiff's brief her counsel argue the admissibility of the above testimony in these words: Certainly the witness (Phillips) who had long observed coasting on the hill, and who had seen it (the hill) on the day of the collision, was more capable of estimating the maximum speed than was the jury. The qualification of the witness to give his opinion was largely within the discretion of the trial court, and its ruling is entitled to due deference.'
We have concluded that the Phillips testimony that the maximum speed a sled would attain on the hill in question was 20 miles an hour was improperly admitted. Mr. Phillips had never seen this particular sled in operation or moving down that hill, and had observed no sled on that hill on that day. It is conceded that the hill was covered with packed snow and ice. The speed a sled might attain on the hill of necessity would vary with the slickness of the snow and ice thereon, which well might have varied from day to day or even from hour to hour, the smoothness of the sled runners, the weight on the sled, the starting force, the grade percentage on the hill, the length of the hill and other factors. It does not appear that Phillips had any particular information as to any of those matters; nor was there particular testimony introduced respecting them. Under the instant circumstances the Phillips 'guess' or 'estimate' as to a possible maximum speed was merely conjecture which invaded the jury's province and had no probative value...
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