Chaar v. McLoon
| Citation | 263 S.W. 174,304 Mo. 238 |
| Decision Date | 10 June 1924 |
| Docket Number | 23652 |
| Parties | FRANK CHAAR and ANNA CHAAR, His Wife, Appellants, v. PETER McLOON |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Charles Circuit Court; Hon. Edgar B Woolfolk, Judge.
Reversed and remanded.
John T. Manning, William Waye, Jr., and Earl M Pirkey for appellants.
(1) Where the only question is that of negligence vel non, it is reversible error to give an instruction on the subject of accident. Lamar v. Morton Salt Co., 242 S.W. 690; Turnbow v. Dunham, 272 Mo. 65; Beard v. Railroad, 272 Mo. 156, 2; Bethurkas v Railway Co., 249 S.W. 439. (2) An instruction which exonerates a defendant if deceased went in the path of the vehicle at such a distance that defendant did not have time to stop before the collision is incorrect, because it ignores the question of excessive speed. Abramowitz v. United Railways Co., 214 S.W. 120; Mason v. United Railways Co., 246 S.W. 325. (3) It is reversible error to give an incorrect instruction at the request of the successful litigant, or of the court's own motion, which conflicts with a correct instruction given at the instance of the losing party. Mansur-Tibbits Imp. Co. v. Ritchie, 143 Mo. 612; State ex rel. Central Coal and Coke Co. v. Ellison, 270 Mo. 645; Easton-Taylor Trust Co. v. Loker, 205 S.W. 87; Flintjer v. Kansas City, 204 S.W. 951; Martmowsky v. City of Hannibal, 35 Mo.App. 70; Desnoyers Shoe Co. v. Lisman & Ramsey, 85 App. 345; Sheperd v. Transit Co., 189 Mo. 373; Wallack v. Transit Co., 123 Mo.App. 167; Porter v. Mo. Pac. Ry. Co., 199 Mo. 83. (4) An instruction cannot be broader than the pleadings or proof. State ex rel. v. Ellison, 270 Mo. 653; Degonia v. Railroad, 224 Mo. 589.
Joseph C. McAtee and P. S. Terry for respondent.
(1) It requires more than the showing of a mere possibility that the accident might have been avoided in order to bring the case within the "humanitarian" or "last chance" doctrine. If the utmost that can be said of plaintiff's evidence is that it tends to show that defendant was guilty of negligence, while it shows the deceased's own negligence conspicuous in not looking for the approaching car, the plaintiff is not entitled to have submitted to the jury the question of last chance. A mere error of judgment committed under stress of exciting and imminent danger in an honest and spontaneous effort to avoid injury is not alone proof of negligence. Markowitz v. Railroad, 186 Mo. 350, 359. Finn v. United Railways, 237 S.W. 886; Jackson v. Railway, 157 Mo. 621, 645; Grear v. Harvey, 195 Mo.App. 13; Griffin v. Transfer Co., 193 S.W. 811; Rollison v. Railway, 252 Mo. 525, 543; White v. Railway, 159 Mo.App. 513; Chappell v. United Ry., 174 Mo.App. 126, 135. (2) "Where a person is crossing a street and is injured by a vehicle on the street, it is proper to give an instruction on accident." Henry v. Railway Co., 113 Mo. 525, 537; Feary v. Railway Co., 162 Mo. 75, 99; Webb v. Baldwin, 165 Mo.App. 240, 251; Boland v. Missouri Railroad Co., 36 Mo. 484; Sawyer v. Railroad, 36 Mo. 241, 260; Maxey v. Railway Co., 95 Mo.App. 303, 309. (3) "The burden is on the one suing for a negligent injury to prove his case by a preponderance or greater weight of the evidence." Giles v. Railway, 169 Mo.App. 24; Burns v. Railway Co., 176 Mo.App. 330; Rogers Packing Co., 180 Mo.App. 227; Mullery v. Telephone Co., 180 Mo.App. 128; Whitesides v. Railway, 186 Mo.App. 609; Pippin v. Const. Co., 187 Mo.App. 360; Scott v. Smelting Co., 187 Mo.App. 344. (4) "Every person operating a motor vehicle shall sound said bell, gong, horn, whistle or other device whenever necessary as a warning of danger, but not at other times or for any other purposes." Sec. 7576, R. S. 1919.
Frank Chaar, Jr.
Aged nine years and ten months, was struck and killed by an automobile driven by respondent. His parents brought this action for damages. The jury returned a verdict against them, and they appealed. A number of errors are assigned. Respondent contends there was no error and, in any event, the judgment should be affirmed on the ground that no case was made for the jury.
The petition contains (1) allegations which state a case under the humanitarian doctrine, and allegations that respondent (2) operated his automobile at a negligent and dangerously high rate of speed; (3) negligently failed to sound the horn or give other warning of approach; (4) and negligently failed to stop or turn aside or check his speed; and alleges these negligent acts were the cause of the child's death. The fourth allegation is coupled with a repetition of allegations under the doctrine under which the first charge of negligence is drawn. The answer first denies the allegations of the petition and then avers (1) that the boy's death resulted from his own negligence, "directly contributing thereto," in jumping suddenly in front of the automobile respondent was driving.
The evidence was quite conflicting. Applying the approved rule (Buesching v. Laclede Gaslight Co., 73 Mo. 219) and stating the evidence in accordance with it, there was substantial evidence to prove appellants' case. The automobile involved was a large, seven-passenger, 1917 model, Jeffrey's car, and was owned and was being driven by respondent. His wife and sister-in-law were in the back seat. The back curtains were on. Lemay Ferry road runs about north and south, and respondent was driving northward upon that thoroughfare. On its west side, and in the highway, there are car tracks. Next to these and east of them is an asphalt driveway fifteen or twenty feet wide. The evidence varies. Just east of this driveway the street is unimproved for a width of eleven or twelve feet, and adjoining this there is a pathway used by pedestrians and called a "sidewalk." Hoffmeister Avenue crosses Lemay Ferry road. To the north, the next east-and-west street is Louisa Avenue, which runs east from Lemay Ferry road, but does not cross it. The distance between the north line of Hoffmeister Avenue and the south line of Louisa Avenue is 250 feet. Between these avenues, and on the east side of Lemay Ferry road, are several improved lots. The roadway in this block is frequently and habitually used by pedestrians and has been so used for a long time. There is a "medium" down-grade from Hoffmeister to Louisa Avenue. The child was struck at a point on the asphalt driveway 162 feet north of the north line of Hoffmeister Avenue. At that place the distance from the west side of that driveway to the west side of the Lemay Ferry road is thirty-eight feet and four inches. The distance from the east side of the asphalt driveway to the path or "sidewalk" is eleven feet and eleven inches, and the distance from the west side of the sidewalk to the building line on the east is six feet and nine inches. A furniture truck was moving south along the west side of the asphalt driveway. Respondent was driving north along the east side of the same driveway. There is eye-witness testimony that as respondent crossed Hoffmeister Avenue, going north, the three boys were standing in the middle of the asphalt driveway 162 feet north of the north line of Hoffmeister avenue; that they were looking toward the east; respondent admits he saw them at a distance of 150 feet, though he says they were on the east side of the asphalt driveway, "you might say up against this asphalt, very close to it." He says two of the boys were looking east and the "other little fellow was standing kinda facing them." There is other testimony that the three boys were standing about seven and one-half feet west from the east edge of the asphalt driveway when appellant crossed Hoffmeister Avenue, and that he was driving north on the same driveway about three feet from its east edge; that the boys continued to look toward the east and at no time looked in the direction of respondent's approaching car, and that respondent continued to drive toward the boys without sounding any warning or checking his speed of twenty miles per hour, and without turning out on either side until he reached a point within two or three feet of the boys. The evidence tended to show that from the point, in the east half of the asphalt driveway, 162 feet north of Hoffmeister Avenue, at which the boys were standing when respondent crossed that street, they started to walk slowly to the east and that they were struck by the right-hand fender and thrown off of the east side of the driveway nearly or quite to the edge of the sidewalk. There was also evidence for respondent that the boys moved from a place of safety into the path of the approaching automobile too late for the driver to avoid striking them. There was also evidence that their actions before they so moved showed that they were about to run into the street in front of respondent's car. The question as to the sufficiency of the evidence to support a verdict does not require a detailed statement of the evidence tending to prove facts which would exculpate respondent. Some further details are stated in another connection.
Appellants urge that certain given instructions were erroneous. Respondent contends the instructions were correct and that, in any event, no case was made for the jury.
I. Respondent's contention that no case was made for the jury is founded upon evidence he offered. If these boys, as the direct testimony tends to prove, were standing in the asphalt roadway, seven and one-half fect west from its east edge, when respondent crossed Hoffmeister Avenue 162 feet away, and he was driving along the same roadway three feet from its east edge, they were then in the path along which he was moving toward them, and unless they moved or he changed his course or stopped he was bound to strike them. The...
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