Cervillo v. Manhattan Oil Co.

• Decision Date: 04 April 1932
• Docket Number: No. 17411.,17411.
• Citation: 49 S.W.2d 183
• Parties: ROSIE CERVILLO, RESPONDENT, v. MANHATTAN OIL COMPANY ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

49 S.W.2d 183

ROSIE CERVILLO, RESPONDENT, v. MANHATTAN OIL COMPANY ET AL., APPELLANTS.

No. 17411.

Kansas City Court of Appeals. Missouri.

April 4, 1932.

Appeal from Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.

REVERSED AND REMANDED.

Frank Benanti and Julius C. Shapiro for respondent.

Hogsett, Smith, Murray & Trippe for appellants.

BOYER, C.

Plaintiff sued the Manhattan Oil Company, its successor company, and Henry Snapp to recover damages for the death of her minor son who was run over by one of the wheels of the defendant company's truck then operated by its employee, Henry Snapp. The petition contains general and specific charges of negligence and alleges a right of recovery under the humanitarian rule. The answer was a general denial and a plea that the death was caused by the sole negligence of the deceased who, knowing of the presence of the truck, negligently undertook to mount the same or to go so close thereto as to cause his injury, all of which was without any negligence on the part of defendants and without their knowledge. The case was submitted to the jury and recovery authorized under the humanitarian theory only. The verdict was for plaintiff and defendants duly appealed. The errors assigned are numerous. They will be considered separately, and the pertinent portions of the pleadings and facts will be shown in a consideration of the points.

Facts not in dispute: On January 9, 1929, Joe Ditta, a child then past nine years of age, met his death. He was the son of plaintiff, the sole surviving parent, and this suit was filed on the following 16th day of January. Forest Avenue and Pacific Street were two public thoroughfares in Kansas City; Forest Avenue extended north and south and Pacific Street east and west. Pacific Street did not extend directly across Forest Avenue, but where it entered from the west there was a jog of about fifty-four feet to the north, at which place it was extended to the east. The scene of the tragedy was near the middle of the intersection of these two streets where Pacific Street enters Forest Avenue from the west. Between property lines Pacific Street was fifty feet wide and Forest Avenue sixty feet wide. The paved portion of Pacific Street was thirty feet wide and the paved portion of Forest Avenue was twenty-six feet wide. There was a manhole approximately in the center of the intersection; it was 13.2 feet east of the west curb line of Forest Avenue and fourteen feet south of the north curb line of Pacific Street. Forest Avenue approached Pacific Street from the north on an upward grade; the intersection was more nearly level.

On the day in question and about four o'clock P.M., defendant Snapp was the employee of defendant company and was driving its truck in Forest Avenue going south towards and over the intersection with Pacific Street. Joe Ditta and other children had been released from school nearby, and to the north and east of that place. The children came from the east on Pacific Street and Joe Ditta with others crossed to the west side of Forest Avenue north of the intersection of Pacific Street as it entered Forest Avenue from the west and were proceeding southwardly in the direction of their homes. Some of the children remained on the east side of Forest Avenue. There was snow on the ground and the street curbing was not plainly visible. The children were making and throwing snowballs. As the truck crossed the intersection of Pacific Street, going south, some part of it ran over the boy very near the center of the intersection of the streets, and the injury then received resulted in his death. Just prior to the accident, and at the time, the truck was moving at a rate of speed of not more than six or seven miles an hour, and while approaching the place of injury could have been stopped within a distance of a few feet. There was no signal given by the driver as he approached, entered and crossed the intersection.

The controverted issues of fact arise over the location of the boy at the time the truck was approaching and entering the intersection; his position and movements prior to and at the time the truck entered and crossed the intersection; and whether defendant's driver saw or could have seen the boy in a position of peril in time to avert injury. The evidence for plaintiff tends to show that the boy was standing in the middle of the intersection near the manhole facing east when the truck was fifteen feet from him; that there was no horn sounded or signal given by the driver; that the truck moved straight toward the boy; that the right front wheel struck him and both wheels on the right side of the truck passed over him. The evidence of defendants is to the effect that the boy was not standing in the intersection of the street at all, and was not in front of the truck at any time while it was crossing the intersection, and that after the front end of the truck had passed position of the boy fifteen feet away, he ran toward the west side of the truck with his hands lifted as it was crossing the intersection and approached very near the truck in front of the rear wheel; that his feet slipped and he fell under it; that the driver was wholly unaware of the boy's proximity to the truck; did not and could not see him approaching it, and did not know that the boy had been injured until he had driven some distance beyond.

OPINION.

The first point urged by counsel for appellants is that the trial court erred in refusing to grant a new trial on the ground of perjury or mistake committed by plaintiff's witnesses. The basis of this charge is founded on statements made by two of plaintiff's witnesses and their answers given to questions propounded to them and written down by a competent shorthand reporter some months after the accident and more than a year prior to the trial. These witnesses, at the trial, testified to a state of facts directly contrary to and in conflict with their statements previously given. The main issue of fact at the trial was whether the boy was standing in front of the truck and was run down by the right front wheel, or whether after the front end of the truck had passed the boy, he ran toward the side of the truck to grab a ride, slipped, and fell under the right rear wheel.

William Kissgen was one of plaintiff's witnesses. At the time of the accident he was fourteen years of age. In November of that year he stated to the shorthand reporter in answer to questions propounded by an investigator for defendants, in the office of the school he was then attending, that he did not see the accident at all; that he was told about it by another boy; that he was going south on the sidewalk on the east side of Forest Avenue; that they were running and the other boy was looking towards the truck, but he wasn't paying any attention to it; that he had his back to it and did not see the accident and did not know how it happened. During the trial he testified that he saw the right front wheel of the truck strike the boy, and testified to various other facts about the location of the truck and the boy. On cross-examination he testified that he crossed Forest Avenue with the injured boy and walked on the west side thereof up to and across Pacific Street; that they walked south to the northwest corner where Pacific Street enters Forest Avenue, and then went across the street south. The boy who was injured remained back on the corner. He was asked about the answers given by him to the shorthand reporter and the investigator and said: "I told them what I am telling you." Numerous questions and answers contained in the transcript of the reporter were read to the witness. He denied that he had made the answers shown in the transcript and denied practically every question and answer which had been propounded and reported. He was asked what parts of the answers were wrong and said: "All wrong." He said, however, that he undertook to answer the questions truthfully in the office of the president of the school.

Plaintiff offered another witness, Marion Bonura, who at the time of the trial was twelve years of age and at the date of the accident was ten. He testified that he heard a scream, turned around, and saw the right front wheel of the truck run over Joe Ditta. The examination of this witness had been made in the same manner as that of William Kissgen and transcribed, and at that time he stated that he did not know how the accident happened; that he was walking ahead and had his back to it; that he did not know which wheel ran over the boy; that he just heard some one scream and then looked back and Joe was lying there. He admitted that he had given some of the answers to the reporter, but denied most of them. He was asked: "Q. Why didn't you tell these folks at the Woodland School you saw the right front wheel strike Joe? A. I hadn't been thinking about it until I come down because it was quite awhile afterwards." The place referred to was where he had been questioned and had given answers prior to the trial.

Defendant put in evidence the transcript of the questions asked the witnesses and answered by them and showed that the transcript had been prepared by an experienced court reporter and that the questions had been propounded by another and the answers taken in the office of the school where the witnesses were examined, and that the transcript was true and correct in every particular.

Counsel for appellants urge that perjury or mistake was committed; that there is no escape from the conclusion, and that the ruling of the court to the contrary was without evidence to support it and is subject to review. But that was not the exact question presented to the trial court. It was not the ground alleged in the motion for new trial. Referring to the motion, we find that one of the grounds alleged for new trial was "that perjury was committed by plaintiff's witnesses," naming them, and that the verdict was occasioned by said...