Andrews v. Parker

• Citation: 259 S.W. 807
• Decision Date: 18 March 1924
• Docket Number: No. 17065.,17065.
• Parties: ANDREWS v. PARKER.
• Court: Court of Appeal of Missouri (US)

259 S.W. 807

ANDREWS v. PARKER.

No. 17065.

St. Louis Court of Appeals, Missouri.

March 18, 1924.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

"Not to be officially published."

Action by Nettie L. Andrews against Carl L. Parker, a minor. Judgment for plaintiff, and defendant appeals. Affirmed.

R. E. Bailey, of Sikeston, Ward & Reeves, of Caruthersville and Albert Spradling, of Cap Girardeau, for appellant.

T. D. Hines, of Jackson, Gallivan & Finch, of New Madrid, and J. M. Haw, of Charleston, for respondent.

BRUERE, C.

This suit was instituted in the circuit court of Scott county by the plaintiff to recover damages for the death of her husband, 0. W. Andrews, alleged to have been negligently killed by an automobile driven by the defendant.

The cause, on change of venue, was sent to the Cape Girardeau court of common pleas, where at a trial a jury awarded plaintiff a verdict of $2,000, and defendant has appealed.

The negligence charged in the petition, and upon which the case was submitted to the jury is: (1) Failure to slow down and give an audible signal with his signal horn on approaching O. W. Andrews. (2) Failure to slow down to such speed so that the automobile could be readily stopped, but operating the same at a high and reckless rate of speed, to wit, about 25 miles an hour, without any warning. (3) Running said automobile at a speed in excess of 10 miles per hour in violation of the ten mile speed ordinance of the city of Charleston. (4) That the place of injury was a highly traveled street crossing, and one that required unusual care on the part of the defendant while driving his automobile thereon, but that the defendant failed to drive said automobile in a careful and prudent manner and at a rate of speed so as not to endanger the life of 0. W. Andrews, but instead ran said automobile at an unusual rate of speed and negligently failed to keep any lookout whatever for persons crossing same, but was, when crossing said street crossing, looking back and talking to persons in the back seat of said automobile. (5) A violation of the humanitarian or last chance doctrine.

The answer is a general denial and plea that the deceased negligently and carelessly, and without proper care and caution for his own safety, walked directly in front of defendant's moving automobile, and at such close distance thereto that it was impossible for defendant to stop the same without striking him.

Briefly summarized, the facts disclosed by the record are: The accident occurred on the evening of December 8, 1918, at about 9 o'clock, on Commercial street, near the intersection of Virginia avenue, in the city of Charleston, Mo. Virginia avenue runs north and south, and Commercial street runs east and west. The latter street is 32 feet wide between the curbs. There is a sidewalk on the north side of Commercial street, also on the east side of Virginia avenue. Between the sidewalk on Commercial street and the curb there is a parkway about 10 feet wide. This is also true with respect to the sidewalk on Virginia avenue, except that the parkway south of Commercial street is about 16 feet wide. This difference in the width of the parkways causes a break in the west line of the sidewalk on Virginia avenue, where it crosses Commercial street; which leaves the sidewalks north of Commercial street about 5 feet further west than the sidewalk south of Commercial street. The sidewalks on Commercial street and Virginia avenue both run across the parkways to the curb. On the northwest corner of Commercial street and Virginia avenue is located Mr. Lusk's residence.

The deceased at the time of his death was 66 years old. He lived on the east side of Virginia avenue, just one block south of Commercial street. On the evening of the accident he attended services at the Presbyterian church which was located on Commercial street, south of Virginia avenue. He wag on his way home from church when he was struck and killed. After leaving the church no account is had of his movements until he was seen walking, in a southeasterly direction, just east of Virginia avenue and on or near the crosswalk on Commercial street. He was struck a few feet east of the crosswalk and from 8 to 15 feet north of the south curb of Commercial street.

Regarding the manner in which the accident occurred, the facts, as established by the evidence on the part of the plaintiff, are, in substance, these:

Mr. M. J. Flynn testified that he was standing in front of Mr. Lusk's residence, on the north side of Commercial street and about 127 feet from the point where the deceased was struck, when defendant's automobile passed him going east on Commercial street, and running 25 miles an hour; that just as the car was going out of Virginia avenue he heard a dull thud, and almost immediately saw an object go up over the left front wheel of the automobile, and then heard the brakes of the car applied; that he did not notice the car slow down until after the object was hit,, and did not hear any horn sounded or warning of any kind given. He further testified that the car traveled about 35 or 40 feet east after it struck the deceased, and then backed up to where the deceased was lying, just east of the crosswalk running across Commercial street.

Plaintiff introduced in evidence a statement made by the defendant before the coroner's inquest, which was subscribed and sworn to by him at the time it was taken. In said statement the following appears:

"I was going down the street going east; directly behind another car in the street. I was looking backwards. I was speaking to some one in the back seat, and heard an alarm and looked forward. I saw the gentleman in front of the car very close to the car I was in, and I stopped the car as quick as I could. The car went about 12 or 13 feet before I could stop it. The dead man was going southeast, angling across the street. I saw the man plainly, because I had lights on my car and the street lamps were burning. I could have seen the man had I not been looking back. The car in front of me and my car were on the same side of the street. The car was some 20 steps ahead. I had lights, and my brakes were in good working order. Paul Halter, Anna Judin, Cecil Petty were in the car with me. Paul Halter assisted me in hurrying the man off of the street. We moved him to the south side of the street. I notified a man on the street. Miss Petty "notified Mr. Deal, and Mr. Deal and wife came out on the street, and I told them what I had done. I think fenders of the car struck him about the waist. The car moved him 5 or 6 feet."

Mr. S. F. Shell testified that he found the deceased's spectacles, also some blood, about 2 feet west of the crossing on Commercial street and 10 or 15 feet from the south curbing, and that blood stains were in said street further east; and that the appearance of same indicated that something with blood on it had been dragged along the street.

The plaintiff introduced in evidence an ordinance of the city of Charleston, Mo., which provided that no person should operate a motor vehicle on any street of said city at a greater rate of speed than 10 miles per hour.

The evidence on the part of the defendant is, in substance, as follows:

Frank Ashby, prosecuting attorney of Mississippi county, who conducted the examination of witnesses at said inquest, J. C. McDowell, assistant prosecuting attorney, and Henry Cochran, a member of the coroner's inquest, all testified that the defendant did not state at said inquest that he could have seen the deceased had he net been looking back.

Mr. Ashby, however, testified that he understood plaintiff to say that "I turned around to speak to somebody in the back seat, and one of the young ladies called, `There is a man,' and I turned around and threw on the brakes;" that plaintiff told him, before the inquest, that he was turned around talking to some girl in the back seat when some one hollered and said there was a man in the street, and that he turned around and saw him. Mr. Ashby further testified that the statement hereinbefore set out, was read over to defendant by the coroner before it was signed, for the purpose of having any corrections made in it if it was not correct.

The testimony of Mr. Cochran and McDowell on this point also show that they understood defendant to say he was looking back, or was turning to look back when some one said, "There is a man," and that he then looked forward and put on the brakes.

These witnesses further testified that on the night of the accident and after the occurrence they viewed the ground where the deceased was struck, and there discovered two distinct marks on Commercial street, indicating that the wheels of some car had been locked, and that the car had skidded; that these marks began about 8 or 10 feet east of the east line of Virginia avenue, and extended east about 23 feet; that they discovered some blood, which was about 3 or 4 feet east of the east line (if continued across Commercial street) of the sidewalk on the east side of Virginia avenue, and about 6 feet north of the south curb of Commercial street.

Regarding the manner in which the accident occurred, defendant testified, in substance, that just before the accident he was driving an Oldsmobile five-passenger car east on the south side of Commercial street at a speed between 10 and 15 miles per hour; that Miss Petty was sitting in the front seat of the car with him, and Mr. Halter and Miss Judin were in the back seat; that he was taking Mr. Halter to his home in Charleston; that after he crossed...