Buck v. Thatcher
| Decision Date | 11 June 1928 |
| Parties | PHILIP BUCK, BY NEXT FRIEND, MARY E. BUCK, RESPONDENT, v. CHRISS C. THATCHER, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.
AFFIRMED.
Judgment affirmed.
Mosman Rogers & Buzard for respondent.
W. W McCanles for appellant.
Trimble, P. J., absent.
This is an action in damages for personal injury. The facts disclosed are that plaintiff, a boy seven years of age, was struck by a Ford coupe driven by defendant east on Fifteenth street near its intersection with Mersington avenue in Kansas City, Mo., on Sunday, May 31, 1925, between the hours of 12:30 and one o'clock, P. M.
Plaintiff, with two of his brothers, George and Buford Buck, aged respectively fourteen and twelve years at the time, had left the north side of Fifteenth street and was crossing toward the south side thereof; they had reached the vicinity of the double street car tracks, being near the center of said street, the south track being used for eastbound traffic and the north for westbound cars. The testimony is that the boys were walking abreast, the older boy, George, being in the center, Buford on his left and plaintiff on his right, or west of him, and that George held plaintiff by the hand. The testimony is a bit conflicting as to whether the boys had paused or stopped on the south street car track, or in the space between the two tracks, or whether they had stopped at all. It appears that, as the boys were crossing the street the plaintiff held in his hand a toy commonly called a whirligig and which, since the advent of airplanes is referred to by children as a propeller. This toy is so constructed as to revolve when facing the wind, or when held horizontally in front of a moving child, much after the manner of a propeller on an airplane. The three boys had reached or passed the center of Fifteenth street when plaintiff, breaking loose from the hand of his brother George, proceeded ahead of the others, and when he had reached a point approximately half way between the south street car track and the south curb of Fifteenth street, he was struck, knocked down and run over by defendant's automobile.
It is in evidence that before the boys started to cross the street, George and Buford looked to the east, saw some automobiles coming from that direction but far enough away to permit safe crossing; that they also looked to the west but saw no cars approaching. There is no evidence of record that there was any eastbound vehicle traffic on the street except defendant's coupe and a Ford touring car following it, neither of which was seen by plaintiff and his brothers. The testimony shows that approximately 100 to 200 feet west of the point of the accident is the crest of a hill and from that point eastward the decline is probably fifteen per cent. As to the rate of speed at which defendant's car was traveling the testimony is contradictory, ranging from fifteen to thirty miles per hour. There is also conflicting testimony as to whether defendant sounded his horn or gave any warning of his approach. Plaintiff's testimony tends to show no horn was sounded, while defendant states he sounded his horn when he reached the crest of the hill, 100 to 200 feet west, but not thereafter. As to the speed of the car there is testimony that defendant's car was going rapidly enough to pass a Ford touring car prior to reaching the crest of the hill mentioned above. Three men were seated in the touring car one of whom, a Mr. Cummings was seated in the rear seat alone, testified for plaintiff and stated defendant's car passed the one in which he was riding, at the rate of thirty miles per hour, but McWhorter the driver and Edward J. Flynn, the other passenger, testified they had no recollection of defendant's car having passed them. The purport of the evidence of McWhorter and Flynn is that the touring car followed the coupe at a distance of probably 100 feet and traveled at approximately the same speed, and that the touring car was being driven at the rate of about fifteen miles per hour.
Plaintiff's brothers, George and Buford, testified they did not see the offending car until the driver applied his brakes and that was practically at the moment of the collision. Witness Cummings testified he observed skid marks on the pavement just after the accident and they extended thirty to forty feet. Defendant succeeded in stopping his car after it had passed over the body of plaintiff, a distance of approximately five feet. He alighted, picked plaintiff up and carried him into a private house on the south side of Fifteenth street. An ambulance was called and plaintiff was taken to the General Hospital where he remained for a week or ten days.
The petition is formal and after enumerating the injuries received by plaintiff alleges the same were directly caused by and were due to the negligence and carelessness of defendant, as follows:
Damages are sought in the sum of $ 10,000.
The answer is a general denial. Upon the pleadings thus made the cause went to trial to a jury, resulting in a judgment for plaintiff of $ 4500. Motions for a new trial and in arrest were overruled and defendant has appealed.
In support of the appeal, it is urged the court erred in giving plaintiff's instructions 1, 2, 3 and 4, and in refusing defendant's instruction 12. Instruction 1, against which error is charged, is as follows:
"The court instructs the jury that under the law of the State of Missouri it is the duty of every person operating a motor vehicle upon the highways of this State to drive the same in a careful and prudent manner and to exercise the highest degree of care and at such a rate of speed so as not to endanger the life or limb of any person, and you are instructed that the term 'highest degree of care' means such care as would ordinarily be exercised by a very careful and prudent person under the same or similar circumstances."
It is urged this instruction is erroneous because it is abstract and does not completely and clearly set forth the law of Missouri on this point; that it is misleading and created prejudice in the minds of the jury. The law to which this charge has reference is found in Session Laws 1921, sec. 19, p. 91, and is as follows:
"Every person operating a motor vehicle on the highways of this State shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, and at a rate of speed so as not to endanger the property of another or the life or limb of any person, provided that a rate of speed in excess of twenty-five miles an hour for a distance of one-half mile shall be considered as evidence, presumptive but not conclusive, of driving at a rate of speed which is not careful and prudent, . . .
Defendant urges the instruction omits a very essential part of the law embodied in said section as follows:
"But the burden of proof shall continue to be on the prosecution to show by competent evidence that at the time and place charged the operator was driving at a rate of speed which was not careful and prudent, considering the time of day, the amount of vehicular and pedestrian traffic, condition of the highway and the location with reference to intersecting highways, curves, residences or schools; . . ."
It is argued that under said instruction the jury might have concluded that defendant was guilty of negligence as a matter of law, in running even at a speed of eighteen or twenty miles per hour. Defendant suggests that if the instruction had told the jury that before negligence of defendant could be presumed it was necessary for him to run at the rate of twenty-five miles per hour, which is a part of the section, the jury doubtless would have considered that under the law as so stated defendant was not guilty of negligence.
The point of attack on this instruction seems to be that it does not state that the burden of proof is on the plaintiff to show by competent evidence that the driver was not driving at a rate of speed that was careful and prudent, considering the time of day, the amount of vehicular and pedestrian traffic, the condition of the highway, etc. The petition alleges:
"He negligently and carelessly failed to exercise the highest degree of care in the operation of said automobile as required by the laws of the State of Missouri, as to injuring others."
The instruction does not purport to cover the entire case, nor does it direct a verdict. It covers only the question of the...
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