Ballman v. H. A. Lueking Teaming Company
| Decision Date | 02 March 1920 |
| Citation | 219 S.W. 603,281 Mo. 342 |
| Parties | WALTON BALLMAN, by H. R. BALLMAN, His Next Friend, v. H. A. LUEKING TEAMING COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John W. Calhoun Judge.
Reversed and remanded.
Bryan Williams & Cave and Walter H. Nohl, for appellant.
(1) The trial court should have sustained appellant's demurrers to the evidence. (a) The evidence showed no negligence on the part of appellant. Stotler v. Railroad, 200 Mo. 146; Berry on Automobiles (2 Ed.), p. 158; Battles v Railway, 178 Mo.App. 624. (b) The plaintiff was guilty of contributory negligence as a matter of law. Stotler v. Railroad, 200 Mo. 146; White v. Railroad, 250 Mo. 482. (2) A witness should not be permitted to state his conclusions as to the relationship created by an unambiguous contract, or as to the contents of a written instrument. Benton v. Craig, 2 Mo. 198; Filley v. Talbott, 18 Mo. 416; State v. Salmon, 216 Mo. 523; Land Co. v. Spellings, 236 Mo. 39; Kuhn v. Schwartz, 33 Mo.App. 610; State v. Barnett, 110 Mo.App. 594; State v. Hall, 158 Mo.App. 125; Wise v. Insurance Co., 23 Mo. 80; Ellis v. Brand, 176 Mo.App. 383; State v. Huff, 161 Mo. 488. (3) The trial court erred in admitting respondent's experiment on visibility. Graney v. Railway, 140 Mo. 103; Chamberlain v. Mo., E. L. & P. Co., 158 Mo. 1; Riggs v. Railroad, 216 Mo. 327; State v. Bass, 251 Mo. 120; Helzemer v. Railroad, 261 Mo. 411; Osborne v. Eyster, 195 Mo.App. 523; Lloyd Chemical Co. v. Rag Co., 145 Mo.App. 689. (4) The trial court erred in submitting to the jury a general charge of negligence and an issue not pleaded. Waldhier v. Railroad, 71 Mo. 516; Schneider v. Railroad, 75 Mo. 296; McNamee v. Railroad, 135 Mo. 447; McCarthy v. Rood Hotel Co., 144 Mo. 402; Allen v. Transit Co., 183 Mo. 32; Davidson v. Transit Co., 211 Mo. 361; Beave v. Transit Co., 212 Mo. 351; State ex rel. v. Ellison, 270 Mo. 653; Sommers v. Transit Co., 108 Mo.App. 324; Miller v. United Railways Co., 155 Mo.App. 528; McDonnell v. Columbia Taxicab Co., 168 Mo.App. 351; Clark v. General Motor Car Co., 177 Mo.App. 628; Young v. Dunlap, 195 Mo.App. 123.
Frank Coffman for respondent.
(1) As defendant did not stand on its demurrer at the close of plaintiff's evidence, that question must be answered in view of all the evidence; that which was offered by defendant as well as plaintiff. Klockenbrink v. Railway, 172 Mo. 683; McPherson v. Railroad, 97 Mo. 253; Riggs v. Railway, 216 Mo. 310; Eswin v. Railroad, 96 Mo. 294; Jennings v. Railroad, 112 Mo. 268; Riley v. O'Kelly, 250 Mo. 660; Lareau v. Lareau, 208 S.W. 243. (a) The evidence showed defendant to be guilty of negligence per se. Laws 1911, pp. 326, 327, subsec. 2, sec. 8; Battles v. Railway, 178 Mo.App. 623; Koenning v. Railway, 173 Mo. 725; Underwood v. Railway, 190 Mo.App. 407. (b) The cases -- Stotler v. Railway, 200 Mo. 107, and White v. Railroad 250 Mo. 476, -- cited and relied on by appellant, do not support its theory. The actions of minors are not measured in law by the standard applied to persons of mature years. Zalotuchin v. Railway, 127 Mo.App. 577; Brown v. Railway, 127 Mo.App. 499. (c) A minor is not necessarily guilty of contributory negligence although under the same circumstances an adult would be as a matter of law. Moeller v. Railways Co., 133 Mo.App. 75; Anderson v. Railroad, 161 Mo. 411. (d) When contributory negligence is not pleaded, and plaintiff's own testimony does not convict him of such, that defense is out of the case. Taylor v. Railway, 256 Mo. 216; Collett v. Kulhman, 243 Mo. 591. (2) Appellant's assignment of error, that the witness, John E. Murphy, was allowed to state conclusions about the relations, covered by written contract, is untenable, as appellant pointed out no particular part of the testimony or conclusions, that it wanted stricken out. And the only part of the witness's testimony that could have been a conclusion was by the witness himself withdrawn and corrected. Hafner Mfg. Co. v. St. Louis, 262 Mo. 634; State ex rel. v. Diemer, 255 Mo. 346; Grimm v. Gamache, 25 Mo. 42. (3) The test was made under substantially the same circumstances as existed at the time of the accident and it was not error to admit it. Hunt v. City, 211 S.W. 676; Griggs v. Dunham, 204 S.W. 574. (a) But appellant cannot complain of the alleged error, if any, because the generality of its objection to the testimony was fatal to such objection. Clark v. Conway, 23 Mo. 442; Hafner v. St. Louis, 262 Mo. 634; State ex rel. v. Diemer, 255 Mo. 346; Grimm v. Gamache, 25 Mo. 42. (b) The motion to strike out came after the unfavorable answer, and was too late. Mann v. Balfour, 187 Mo. 304; Casey v. Gill, 154 Mo. 184; State v. Marcks, 140 Me. 668. (4) Respondent's instruction was within both the purview of the petition and the evidence and has been approved. Cool v. Petersen, 189 Mo.App. 725; Denny v. Randall, 202 S.W. 602; Brooks v. Harris, 207 S.W. 296; Selinger v. Cromer, 208 S.W. 871. (a) And it was not broader than the pleadings. Selinger v. Cromer, 208 S.W. 873; Lange v. Railroad, 208 Mo. 476. (b) And when one act of negligence, sufficient to authorize recovery, being alleged in the petition, and properly submitted to instruction, any error of the instruction in submitting another act of negligence was not prejudicial to defendant. Riggs v. Railroad, 212 S.W. 879; Moyer v. Railroad, 198 S.W. 842.
The plaintiff had his right arm crushed about the elbow, so as to leave it permanently stiffened, by a motor truck alleged to belong to defendant company and while driven by an employee of it. The accident occurred at the intersection of Seventeenth and Mullanphy streets, in St. Louis, about seven 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 of ten 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 boy, 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 boy 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-Stix 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. Lueking, 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-Stix 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-Stix 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...
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