Ballman v. H. A. Lueking Teaming Co.
| Decision Date | 02 March 1920 |
| Docket Number | No. 20768.,20768. |
| Citation | 281 Mo. 342,219 S.W. 603 |
| Parties | BALLMAN v. H. A. LUEKING TEAMING CO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.
Action by Walton Ballman, by H. It. Ballman, his next friend, against H. A. Lucking Teaming Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Bryan, Williams & Cave, and Walter H. Nohl, all of St. Louis, for appellant.
Frank Coffman, of St. Louis, for respondent.
The plaintiff had his right arm crushed about the elbow, so as to leave it permanently stiffened, by a motortruck alleged to belong to defendant company and while driven by an employé of it. The accident occurred at the intersection of Seventeenth and Mullanphy streets, in St. Louis, about 7 o'clock and ten minutes, in the evening of October 9, 1914. On the trial of this action brought to recover damages for the injury, a heavy verdict was returned in plaintiff's favor, and from a judgment entered thereon, the appeal was taken.
At the date of the accident, plaintiff, a boy 10 years of age, was skating with a companion on the roadway of Seventeenth street, a north and south thoroughfare, paved with asphalt, in the block between Mullanphy and Chambers streets, both east and west thoroughfares; the latter being to the north. The two boys skated from Chambers along the west side of Seventeenth street to Mullanphy, and while they were turning around at the intersection of the two streets, intending to go back north along the east side of Seventeenth street, the left front mud guard of the truck struck plaintiff, whirling him about and throwing him down with his right arm under the truck so that the left rear wheel ran over it. At the time the other boys Milton Lammers, was four or five feet behind plaintiff, and the latter was from six to eight feet from the northeast corner of Seventeenth and Mullanphy streets. The automobile was proceeding to its garage, which was east of Seventeenth street, and had traveled eastward along Mullanphy for many blocks. Plaintiff testified that, when he reached the north curb-line of Mullanphy street, he looked east and west and saw no vehicle coming from either direction; heard no rumbling of wheels, nor any signal by a horn, bell, or otherwise. The Foy Lammers, who was six feet or so behind plaintiff, saw the truck coming eastward and in the middle of the block to the west; he heard no signal, but heard the rumble of the truck, which was not very loud.
The driver testified he did not slacken speed as he approached Seventeenth street and thought he blew the horn, because he generally did. Witnesses, including the boys, testified the words "Rice-Stix Dry Goods Company" were painted on the side of the truck, and were visible and read, either in whole or in part, by them. Some of them saw only the words "Rice-Stix." This testimony was intended to show the truck which ran over plaintiff belonged to defendant and was operated under a contract between H. A. Lueking and the Rice-Stir Dry Goods Company, entered into July 1, 1914, whereby said Lueking agreed to do the carting and draying for said dry goods company for one year. Lucking, who was the president of the Lueking Teaming Company, said he did not know whether or not said company was incorporated at the date of the accident; but an attorney of Rice-Stir Dry Goods Company testified the company was on that date hauling for the dry goods company, and permitting this testimony to go to the jury is complained of as an erroneous ruling. It should be said the attorney, when shown the contract, said he was mistaken, and that the hauling, when the accident occurred, was done by Lueking, individually. He said, however, he knew the Lueking Company did the hauling for his company from trying a case which arose previous to the accident where their automobiles were involved; had always tried cases "as being the H. A. Lueking Company." Two trucks were provided by Lueking with the name "Rice-Stir Dry Goods Company" on them, to be used in performing the aforesaid contract. Lee Arens was the chauffeur who operated one of them and the one charged to have inflicted the injury in question, and John Amend drove the other.
There is testimony pro and con about the visibility of the words on the truck, considering the light by which they must have been read on the evening of the accident. Two gas street lamps were burning at the crossing, one at the northeast and one at the southwest corner. The testimony is conflicting as to whether the evening was clear or misty at the hour of the accident. It was shown other trucks bearing the name "Stix-Baer & Fuller Dry Goods Company" were in use, and that one of them, which passed down Mullanphy street near the time of the accident, might have caused it, and the witnesses who testified "Rice-Stix Dry Goods Company" was on the truck in question, have mistaken the name. It was one defense and some witnesses, including the chauffeur who operated the truck alleged to have hit the boy, testified no truck belonging to defendant and operated by its driver ran over any one the day of the accident. The bearing of other facts upon our conclusions will be understood best if stated in connection with the propositions to which they are relevant.
Specific acts of negligence are charged in the petition, which may be epitomized as follows:
First, in violation of subsection 2 of section 8 of the Laws of 1911, p. 326, the driver of the automobile of defendant which ran over plaintiff failed to diminish speed, or give timely signals by horn, bell, or other device, as he was approaching plaintiff, who was then in the traveled part of Mullanphy street, along which the truck was traveling and when it was approaching an intersecting highway. The portion of the statute counted on reads thus:
"Upon approaching a pedestrian, who is upon the traveled part of any highway and not upon a sidewalk, and upon approaching an intersecting highway or a curve or a corner in a highway, where the operator's view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signaling." Laws 1911, p. 327.
Second, at the time plaintiff was injured, defendant's driver in charge of its automobile truck was operating it on a public highway in an imprudent manner, in this: He failed and neglected to slow the automobile down or give a timely signal when he was approaching an intersecting highway and also plaintiff, who was on the traveled part of said highway, and negligently drove and operated said automobile, at said time and place, at a speed of 12 miles an hour, which was likely to and did endanger the life and limbs of plaintiff; in violation of section 9, Laws Missouri 1911, p. 327. The section counted on in that paragraph of the petition reads:
"Every person operating a motor vehicle on the public highway of this state shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life and limb of any person: Provided, that a rate of speed in excess of twenty-five miles an hour for a distance of one-half of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent."
Third, at the time and place plaintiff was injured, defendant's said driver was operating the automobile along a public street at a place much used for travel and where said driver should have anticipated persons were apt to be; and said driver, in violation of subsection 9 of section 12, Laws of Missouri 1911, p. 330, negligently failed to use the highest degree of care that a very careful person would use under like circumstances to prevent injury to plaintiff, in this: He drove and operated said automobile at a high and dangerous rate of speed, to wit, 12 miles an hour, along and across the streets and neglected to give a timely warning to plaintiff by horn, bell, etc., or to give any signal of the approach of the automobile, after he saw, or in the exercise of the highest degree of care could have seen, plaintiff in a position of danger; that he failed to slow said automobile down or give any signal at all when approaching a highway when his view was obstructed. That paragraph declared on this part of the act of 1911:
Fourth, said driver, at the time and place of the injury to plaintiff, by the exercise of ordinary care, could have seen plaintiff in a position of peril, in time to have stopped said automobile, or to have slackened its speed sufficiently to avoid hitting and injuring...
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