Aronson v. Ricker

• Decision Date: 11 January 1915
• Docket Number: No. 11430.,11430.
• Citation: 185 Mo. App. 528,172 S.W. 641
• Parties: ARONSON v. RICKER et ux.
• Court: Missouri Court of Appeals

172 S.W. 641

185 Mo. A. 528

ARONSON v. RICKER et ux.

No. 11430.

Kansas City Court of Appeals. Missouri.

January 11, 1915.

1. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREET — DRIVING AUTOMOBILE — DEGREE OF CARE.

Under Rev. St. 1909, § 8523, providing that the driver of an automobile upon a way much used for travel shall use the highest degree of care that a very careful person would use under like or similar circumstances, it was defendant's duty, while driving an automobile in a crowded street, to keep a lookout straight ahead and laterally for persons failing to observe every approaching car, even though she allowed her companions on the front seat, facing her, to obstruct her view.

2. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREET — ACTION FOR INJURY — QUESTION FOR JURY — NEGLIGENCE.

In an action for damages for personal injury by being run over by an automobile, held that the questions of defendant's negligence in failing to keep a lookout, in going at a rapid speed, or in not being diligent in attempting to stop, were for the jury.

3. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREET — AUTOMOBILE — CARE.

One driving an automobile in a crowded street must exercise a diligence proportionate to a danger therefrom, and must know that there are women and children in the street, and if, by a diligence proportionate to the nature of the service in which a pedestrian is employed, he can avoid injurying one not on a crossing, he is bound to use reasonable diligence to avoid injury.

4. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREET — AUTOMOBILE — HUMANITARIAN DOCTRINE.

Under Rev. St. 1909, § 8523, prescribing the care to be used by drivers of automobiles and their liability for injuries, and providing "unless the injury or death is caused by the direct negligence of the injured person contributing directly thereto, the humanitarian doctrine applies to personal injuries from automobiles.

5. HUSBAND AND WIFE (§ 102) — TORTS — JOINT LIABILITY — STATUTES.

The common-law rule that a husband is civilly liable for the torts of his wife, though committed out of his presence and without his authority, and that, though several wrongdoers are jointly charged with conspiring in the commission of a wrong, yet as the charge of conspiracy is mere aggravation, and damage is the gist of the action, the injured person may recover against the one shown to have done the wrong, though failing to prove the conspiracy, but that if insisting upon a judgment against several or for a wrong which can only be committed by a conspiracy of two or more must prove the conspiracy, was not changed by Rev. St. 1909, § 8304, authorizing a married woman to transact business on her own account, and to sue and be sued without joining her husband.

6. MUNICIPAL CORPORATIONS (§ 706) — USE BY AUTOMOBILE — QUESTION FOR JURY — NEGLIGENCE.

In an action for injury from being struck by defendant's automobile in a crowded street, it was not error to refuse to instruct that, as a matter of law, it was not negligent for defendant to have four persons in the car.

7. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREETS — NEGLIGENCE — STATUTES.

Under Rev. St. 1909, § 8523, requiring the driver of a machine to use the highest degree of care that a very careful person would use under like circumstances, defendant was required to use the same degree of care to look for people on the street not at a crossing as for people on the crossing.

8. TRIAL (§ 253) — INSTRUCTION — LAST CLEAR CHANCE — IGNORING ISSUES.

In an action for being run over by an automobile, defendant's requested instruction that if plaintiff had the last clear chance to avoid the accident, and negligently failed to do so, she could not recover, was properly refused, because omitting the necessary hypothesis that plaintiff was aware that she would be immediately run over unless she stepped aside.

9. APPEAL AND ERROR (§ 1001) — REVIEW — FINDING OF JURY.

Where there was substantial and trustworthy evidence on the issue whether appendicitis could result from plaintiff's injury and whether it did result, the jury's finding for plaintiff will not be disturbed.

10. DAMAGES (§ 130) — EXCESSIVE DAMAGES — INJURY TO LEG.

A verdict for $3,500 to plaintiff, who was struck by an automobile, itself weighing 3,500 pounds, running on hard rubber tires at a speed sufficient to knock her down and to run over her legs with both the front and rear wheels, was not excessive.

11. APPEAL AND ERROR (§ 230) — TIMELY OBJECTION IN TRIAL COURT — REMARKS OF COUNSEL.

In an action for personal injury from being struck by an automobile, alleged recess remark of plaintiff's counsel to defendant's counsel, when a juror was near by, that the case was defended by insurance companies, not called to the attention of the court until seven days after the trial, could not avail defendant.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Jean Aronson against George E. Ricker and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Hadley, Cooper & Neel, of Kansas City, for appellants. I. J. Ringolsky, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover damages for personal injury inflicted upon her by being run over by an electric automobile. She recovered judgment for $3,500 in the trial court.

Defendants are husband and wife, and, at the time of the injury to plaintiff, the car was being operated by the wife; the husband not being present. One of the principal objections to the judgment is that the evidence failed to make a case for plaintiff sufficient to submit to the jury, and that therefore the court erred in not sustaining a demurrer to the evidence. Plaintiff's action is presented under the humanitarian rule, and unless it be true, as defendants insist, that an action cannot be maintained against the driver of an automobile under that rule, the objection, clearly, is not well taken.

For the evidence in behalf of defendants themselves leaves no doubt that a case was made for a jury. That evidence tended to show that the car was four-seated; that all the seats were occupied, Mrs. Ricker driving, with a female companion sitting beside her and facing forward, while two other female companions were on the other seat facing to the rear; that the car had a large glass front, but the view straight ahead was obstructed to the driver when persons occupied the front seats, though persons or obstructions in the street could be seen when not directly in front of the car. The car had a maximum speed of 25 miles an hour, though, at the time of the injury to plaintiff, it was coasting (that is, going, without application of the power, at a speed about equal to a person walking); at any rate, not exceeding three or four miles an hour. It had the best of brakes and, at the speed it was going, could have been stopped almost instantly, Mrs. Ricker stated, in the space of one foot. The place was on Eleventh street between Main and Walnut streets, a business center said to be more thronged with pedestrians and vehicles than any other part of Kansas City. Plaintiff and a companion were walking west on the south side of Eleventh street, at about noon. They reached the alley and, wishing to avoid the walk along where a new building was being erected, turned from the sidewalk to cross over to the north side of Eleventh street, which, at that place, was about 40 feet in width between curbs. There was considerable wind, and plaintiff walked with her head down, holding onto her hat. When they reached about the center of the street, plaintiff was struck by defendant's car, knocked down, and her legs run over by both the front and back wheels of the car. Mrs. Ricker stopped the car in about six feet beyond. She says that the first she saw of plaintiff was when she was right upon her, but it is clear, the circumstances considered, that a jury would have a right to say she could have seen her as she approached the place. The law aids us in this statement. The statute (section 8523, R. S. 1909) is that the driver of such a machine, upon a road or street "much used for travel, shall use the highest degree of care that a very careful person would use, under like or similar...