Bussey v. Don

• Decision Date: 04 March 1924
• Docket Number: No. 23868.,23868.
• Citation: 259 S.W. 791
• Parties: BUSSEY v. DON.
• Court: Missouri Supreme Court

259 S.W. 791

BUSSEY v. DON.

No. 23868.

Supreme Court of Missouri, Division No. 2.

March 4, 1924.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Action by Richard Bussey, a minor, against Barney Don. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Charles A. Lich, of St. Louis, for appellant.

Kelley, Starke & Hassett and W. E. Moser, all of St. Louis, for respondent.

WALKER, J.

This is a suit for damages for personal injuries resulting from the plaintiff having been struck by an automobile driven by the defendant. Upon a trial to a jury there was a verdict for the defendant, from which this appeal has been perfected.

At the time of the trial the plaintiff was a boy 12 years of age. About a year before, or in May, 1921, he and a companion were on their way home from school. When they reached a point near the crossing of North Market street with Taylor avenue, they began to play ball on the adjacent sidewalk and parkway by passing a ball to and fro from one to the other. The plaintiff failed to catch the last ball passed to him, which rolled along the parkway and stopped in the gutter just beyond the inner curb. The plaintiff ran after the ball, and when it stopped in the gutter he stooped to pick it up with one foot in the gutter and the other on the edge of the curb. While in this posture he was struck in the back by the defendant's automobile, and received the injuries for which he seeks pecuniary relief.

When the plaintiff was struck the automobile was running close to the curb, and to the left was a moving street car a little ahead of the automobile. The speed at which the latter was running is stated by plaintiff's witnesses to have been at from 15 to 25 miles per hour. Taylor avenue at the point where the accident occurred is about 25 feet wide. The distance between the street car track and the curb where the plaintiff was struck was about 8 feet. The automobile was a Ford, which witnesses stated could not be run at a lower rate of speed than 7 or 8 miles per hour.

The testimony of the defendant is that he was running at a speed of not lower than 5 miles per hour and not so fast as 15 miles per hour; that there was a street car ahead of him that he had followed for several blocks; that he saw plaintiff on the sidewalk 10 or 20 feet away; that after the accident he stopped the automobile within 2 feet; that when the plaintiff ran out into the street he was 2 or 3 feet north of him; that he does not remember whether he tried to turn the automobile to the east to prevent striking the plaintiff; that there was nothing to prevent him from turning to the east, only that plaintiff came so sudden he did not have time to do anything but just stop. The only other witness for the defendant was the street car conductor, who stated that when the plaintiff stooped over with one foot on the curb the automobile was about 4 or 5 feet north of him; that when he got off of his car and came back to the scene of the accident the automobile was standing about 18 inches from the curb, and was headed in the direction in which it had been traveling.

The issues made were on the humanitar Ian doctrine or defendant's failure to stop of turn his machine in time to avoid striking the plaintiff after discovering the latter's peril, and the violation of a city ordinance limiting the operation of automobiles within 400 'feet of a school building to a speed not greater than 5 miles per hour.

The answer was a general denial and a plea of contributory negligence, to which a reply controverting the same was interposed.

I. Plaintiff assigns error in the giving of instructions E, F, and G at the request of the defendant. These instructions declare that there was no evidence of neglect on the part of the defendant in not keeping a vigilant watch or any watch for persons on the street, that defendant was not negligent in failing to keep his automobile under such control as to avoid striking the plaintiff, and that defendant was not negligent in failing to give warning of his approach. The effect of these instructions was to withdraw from the consideration of the jury the evidence of any of the matters therein referred to.

The material averments of these instructions are embodied in the charges of negligence in the petition.

The accident occurred at about 3:15 p. m., as the plaintiff was on his way home from school. The view of the street was unobstructed; defendant's car was moving at less than 15 miles per hour, and he could have stopped it within 2 feet, and, although he saw plaintiff within 10 or 12 feet of him, he did not stop his car in time to avoid striking him. Neither did he turn it to the east, although there was nothing to prevent his so doing except the...