Autio v. Miller

• Decision Date: 20 May 1932
• Docket Number: No. 6857.,6857.
• Citation: 92 Mont. 150
• Parties: AUTIO v. MILLER.
• Court: Montana Supreme Court

92 Mont. 150

AUTIO

v.MILLER.

No. 6857.

Supreme Court of Montana.

Feb. 15, 1932.

On Rehearing, May 20, 1932.

Appeal from District Court, Silver Bow County; Frank L. Riley, Judge.

Action by Selma Autio, as administratrix of the estate of John Autio, deceased, against Edward Miller. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Kremer, Sanders & Kremer, of Butte, for appellant.

H. J. Freebourn, of Butte, and Henry C. Levinski, of Seattle, Wash., for respondent.

CALLAWAY, C. J.

This is an appeal by the defendant from a judgment in favor of plaintiff, after defendant's motion for a new trial had been overruled. The subject-matter of the action is a claim for damages brought by plaintiff, as administratrix of the estate of her 8 year old son, killed by an automobile driven by defendant.

In an opinion promulgated February 15, 1932, a majority of the court reversed the judgment and directed a dismissal of the action. A motion for rehearing was filed, and objections were filed thereto. Being doubtful of the correctness of our decision, we asked for and were favored with oral arguments upon the motion. After due consideration we now withdraw the opinion, and substitute this one in lieu thereof.

The complaint charges that the defendant failed and neglected to keep a proper lookout, or any lookout, in the driving and operating of his automobile; that he drove his automobile at an excessive rate of speed, to wit, at about 35 or 40 miles per hour, and struck the boy when driving at that rate; that he failed to give any warning or signal whatever; that he failed and neglected to have the automobile under proper control so as to stop in time to prevent striking the boy; that he was negligent by failing to run his automobile “in a reasonable and proper manner and at a rate of speed no greater than was reasonable under the conditions existing at the point of operation, taking into account the amount and character of traffic, condition of brakes, weight of vehicle, grade and width of highway, condition of service and freedom of obstruction to view ahead and so as not to endanger the life, limb and property of persons entitled to the use of said highway, and especially so as not to endanger the life and limb of the boy.”

A general demurrer to the complaint was overruled and defendant answered denying all of the allegations respecting negligence, and alleging contributory negligence on part of the boy. The plaintiff replied, denying defendant's allegations of contributory negligence.

Defendant's counsel argue that the complaint does not state sufficient facts, and urge especially that the allegations as to defendant's negligence in failing to keep a lookout are mere conclusions of law. With this we do not agree. The averment that the defendant failed and neglected to keep any lookout in driving his automobile is a terse allegation of an ultimate fact. The complaint states a cause of action.

The accident occurred on East Park street between Oklahoma street on the west and Covert street on the east in the city of Butte. The block is 787 feet in length. Two car tracks run parallel in East Park street. About midway between Covert and Oklahoma streets the street cars stop at a platform between the tracks, but there is no crossing indicated on Park street at this point. The distance from the south curb of Park street to the south rail is 19 feet, and from the north rail to the north curb it is 20 feet. The street from curb to curb is 55 feet wide. Material points are the northwest corner of Sacred Heart school, due south from the platform where the cars stop, and the Manx Bakery, north of Park street and 50 feet or more east from a line drawn due north from the east end of the platform. The accident happened in the street north of the north track and in front of the bakery. The distance from the west line of the bakery to the west line of Oklahoma street is 396.3 feet. On the north side of the street there was an ornamental street light 58 feet west of the Manx Bakery, and a similar light 108 feet to the east of the first light mentioned; on the south side of the street there were similar lights opposite those on the north side.

The defendant, driving a Master Six Buick coupé, was returning from Meaderville where he and three friends, passengers in the car, had partaken of dinner. It was about 8:30 p. m.

The boy was returning home from a moving picture show. His mother had often told him to look out for cars before starting to cross a street. He did not appear to be any different from other boys of his size and age. “He was pretty smart,” a normal boy; had attended school for a year and a half.

The witnesses for the plaintiff who saw the accident were Mrs. Godbout and Waino Aho. Mrs. Godbout testified that just prior to the accident she observed a little boy running diagonally (northeasterly) across Park street, and at the same time she saw a car coming from the west, and there was another car behind it. When she first saw defendant's car, it was near the Montana Meat Shop, which is about 300 feet from the Manx Bakery (later she said the car was about 200 feet distant from her when she first saw it), and the Autio boy was then at the southwest corner of the Sacred Heart school (on the south side of the street). She imagined the car was coming between 30 and 40 miles an hour. The boy stepped off the curb and ran, not very fast, across the street, east of the platform, until he reached the northerly tracks “and the little boy kind of hesitated between the north and south tracks, just probably a fraction of a second or so, and then went on again.” He looked east, which was toward the approaching automobile. Then he started to run again, not very fast. “As the car came down the street and before it struck the boy, it was traveling between the rails on the north side of the street for a short distance, and then as it got down closer to the bakery it swerved over a little to the north, out of the track. It was traveling between the rails until it got a short distance from the bakery and then it swerved to the north side of the street.” The witness thought the boy started ahead about the time the car swerved. “At the time the boy was struck, he was just a little bit north of the north rail. He was then between the north rail and the north curb. When he was struck, he was directly in front of the entrance to the Manx Bakery.” She designated the spot where the boy was struck by an “X” on Defendant's Exhibit No. 2. This point is closer to the north curb than it is to the north track.

The witness Aho saw the accident from his position on the south side of Park street. He saw the boy leave the curb and, rather walking than running, it seemed to him, go across the south side of Park street, and stop when he was between the upper (the north) car tracks. The boy stopped and then started again. “When he stopped it looked like he was going to make fast steps and then the car was there too just about the same moment. *** The car was traveling pretty lively all right. I can't say exactly how fast it would be, somewhere about 40 or 45 miles per hour. On the same instant I was looking at the boy last when I seen him make the fast steps. I seen the car and it looked to me it is going to be accident right there. The car was down to the track when the boy stopped. He looked like that and he made fast steps. The car was coming and it was right at the boy in a few moments. The boy was trying to run off the street for the sidewalk, trying to get on the north sidewalk. He ran in front of the car naturally in getting across the street where the car was coming. It was like this where the boy was standing and the car was coming along the tracks on the same line. When I noticed the car there he started making fast run. It seems like the car made a turn at the same time. When the boy made the dive the car made the turn. The car turned toward the north sidewalk and the boy dived into the street. The car seemed to make the turn at the same time. The boy made a run for the sidewalk and the car turned toward the curb, the north curb.” The witness thought that, when the boy stopped, the car was not over 30 feet from him. “The car seemed to be pointed right where he make the steps and the thing happened so quick I can't give exactly, you see. The car seemed to point direct to where he was making the steps. When the boy stopped and before he was struck he didn't do anything; he just looked up and seen the lights and it looked like he got scared of that car and it looked like he was going to beat it to the sidewalk, that is the way it looked to me. The boy when he stopped was in front of the automobile as it was coming and before it made the turn. It was right on the same line; the car was coming in the middle of the street and the boy was standing there. The place where he was hit was out of the line of the car before it turned. The boy was cutting across the street.” He said if the car went straight on the track “I think the boy would get to that side. The boy made fast steps and the car turned and they came together right there. The car had turned toward the north to try to avoid the boy.”

The witness Godbout did not give any testimony whatever respecting her use of or familiarity with automobiles. As to Aho's ability to judge of the speed of a running automobile, he said he had driven an automobile a little bit but never owned one. He thought “a person upon a sidewalk is as good a judge as a person riding in an automobile as to the speed at which it is going.”

Defendant's witnesses described the occurrence as they remembered, and gave other estimates of speed.

Mrs. Matson said her husband had turned from Oklahoma street into Park ahead of defendant's car. Matson's car is old and was not exceeding 10 miles an hour. When defendant set about to pass Matson's car, the two ran side by side for some distance, then defendant's ran...