Chaar v. McLoon

Decision Date10 June 1924
Docket NumberNo. 23652.,23652.
PartiesCHAAR et al. v. McLOON
CourtMissouri Supreme Court

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Action by Frank Chaar and another against Peter McLoon. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

John T. Manning, of St. Louis, William Waye, Jr., of St. Charles, and Earl M. Pirkey, of St. Louis, for appellants.

Joseph C. McAtee, of Clayton, and P. S. Terry, of Festus, for respondent.

JAMES T. BLAIR, P. J.

Frank Cheer, Jr., aged 9 years and 10 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, 39 Am. Rep. 503), 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 15 or 20 feet wide. The evidence varies. Just east of this driveway the street is unimproved for a width of 11 or 12 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 froth 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 Lamay Ferry road is 38 feet and 4 inches. The distance from the east side of the asphalt driveway to the path or "sidewalk" is 11 feet and 11 inches, and the distance from the west side of the sidewalk to the building line on the east is 6 feet and 9 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 eyewitness 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 kind of facing them." There is other testimony that the three boys were standing about 7½ 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 3 feet from its east edge; that the boys contained 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 20 miles per hour, and without turning out on either side until he reached a point within 2 or 3 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 to 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, 71/2 feet west from its east edge, when respondent crossed Hoffmeister avenue, 162 feet away, and he was driving along the same roadway 3 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 jury would have been justified in accepting his testimony that he saw them 150 feet away, and in rejecting his testimony as to their position at that time. Respondent's testimony tends to show the boys did not see him as he approached them, and there is testimony of several other witnesses that they never did look in his direction, but, as he says of the two who were struck, they looked to the east. There is no testimony they saw the car until it was upon them. The testimony is ample to sustain a finding that there was nothing to obstruct respondent's vision, and he does not claim there was. If the testimony of some of the witnesses is to be believed, and that was for the jury to decide, when the two boys who were struck started walking toward the east, they did not move into the path of the car in such sense as to bring into operation the rule which respondent invokes. They were already in the path of the car, and had been at least since respondent crossed Hoffmeister avenue, according to this testimony, and were oblivious of respondent's approach, and merely moved from one point in respondent's path to another point in the same path. If the jury found all these facts, and there was evidence tending to prove them, then a case was made for their consideration. The question whether they would find these facts, or believe the testimony which tended to exculpate respondent, was one for them to decide, under correct instructions as to the applicable law. Whether the instructions were correct is the question in this case.

II. The court instructed the jury that:

"If you shall believe and find from the evidence that plaintiffs' son was killed solely by reason and on account of an accident, then plaintiffs cannot recover, and your verdict must be for defendant. By the term `accident' is meant such unavoidable casualty as occurs without anybody being negligent in doing or permitting to be done, or in omitting to do, the particular thing or things that cause such casualty."

Other instructions submitted to the jury...

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