Dillon v. Hogue, 8261

CourtCourt of Appeal of Missouri (US)
Citation381 S.W.2d 599
Docket NumberNo. 8261,8261
PartiesWilliam W. DILLON and Ella Mae Dillon, Plaintiffs-Respondents, v. James C. HOGUE, Defendant-Appellant.
Decision Date26 August 1964

Ward & Reeves, Caruthersville, for defendant-appellant.

Kenneth L. Dement, Sikeston, for plaintiffs-respondents.

STONE, Judge.

In this jury-tried case, defendant James C. Hogue appeals from the judgment for $10,000 obtained by plaintiffs, William W. Dillon and Ella Mae Dillon, on account of the alleged wrongful death of Michael Wayne Dillon (hereinafter called Mike), their five-year old son, by reason of injuries sustained when he was struck about 4:20 P.M. on Thursday, July 19, 1962, by a 1962 Ford Fairlane sedan then being driven by defendant in a southerly direction on Missouri State Highway 105 at a point one and one-half miles north of East Prairie, Mississippi County, Missouri.

In their petition, plaintiffs charged defendant with primary negligence in five particulars and with humanitarian negligence; but, by their sole verdict-directing instruction 1, plaintiffs submitted in the disjunctive only humanitarian negligence in (1) failing to stop, (2) failing to 'sufficiently' slacken speed, and (3) failing to swerve to the right or to the left, thereby abandoning all other pleaded grounds of negligence. Welch v. McNeely, Mo., 269 S.W.2d 871, 875(1), and cases there cited. On this appeal, defendant, who offered no evidence but stood on his motion for a directed verdict at the close of plaintiffs' evidence, insists that plaintiffs did not make a submissible case on humanitarian negligence and that the trial court erred in the giving of instructions and in the admission of evidence.

Our factual review is with appropriate recognition of the basic rule that, in determining whether a submissible case was made, we must consider the evidence in the light most favorable to plaintiffs and must accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence [DeLay v. Ward, 364 Mo. 431, 439, 262 S.W.2d 628, 633(3); Ornder v. Childers, Mo., 327 S.W.2d 913, 915(1); Appelhans v. Goldman, Mo., 349 S.W.2d 204, 208(8)], tempered only by the sensible limitation that this rule calls for consideration of all the facts shown by plaintiffs and not merely a part of them isolated from the remainder, and that the rule does not require courts to supply missing evidence, or to disregard the dictates of common reason and accept as true that which, on the whole record, obviously is not true, or to give plaintiffs the benefit of inferences other than reasonable ones. Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80; Reames v. St. Louis-San Francisco Ry. Co., Mo.App., 359 S.W.2d 230, 235(2).

At and near the point of accident, Highway 105 runs generally north-and-south and has a paved roadway, nineteen feet in width, with an interrupted white center line. On the east side of the center line, there is a nine-foot concrete lane and, on the west side, a ten-foot blacktop lane. The west shoulder of the highway is six to seven feet in width, and the west ditch, described as a 'V-type ditch, a grader-type ditch,' averages ten feet in whdth and is twelve to eighteen inches in depth. The grass and weeds along the shoulder and in the ditch are kept mowed. There are four houses on the west side of Highway 105 near the point of accident. A southbound motorist, such as defendant, passes in this sequence the Burchett home, the Blumenberg home, the Dillon home where plaintiffs and their family reside, and the Presson home.

On the afternoon of the fatal accident, Mike Dillon, then five, and Gene Frye, then six, were playing in the front yard of the Dillon home while Mike's brother, Ricky Webb Dillon, then eight, at the moment was sitting on the front steps. Gene threw his toy pistol across the highway, and Mike was struck by defendant's southbound automobile as he moved across the paved roadway, presumably to retrieve the toy. The record provides two accounts of Mike's action immediately prior to the accident, i. e., one by Ricky, nine at the time of trial, and the other by defendant's testimony read in evidence from his pretrial deposition. We turn first to defendant's testimony which, as his counsel state (and we agree), is 'more favorable to the plaintiffs' than is Ricky's testimony.

Defendant, thirty-five years of age, had been employed by the Brown Shoe Company at Charleston, Missouri, for thirteen years and had made the round trip between his home in East Prairie and Charleston five days each week during that period of employment. On the day of accident, the weather was good and the pavement was dry. With his wife and two other passengers, defendant was en route from Charleston to East Prairie in his 1962 Ford sedan, which he had purchased new some two or three months previously. The tires were 'new' and the hydraulic brakes were in good working condition.

Defendant's estimate (and the only estimate) of the speed of his automobile, as he approached the scene of accident, was forty to forty-five miles per hour. When he was 'pretty well in front of' or 'about in front of' the Blumenberg home (the first house north of the Dillon home), defendant first saw Mike 'somewhere in front of' the Dillon home, in the west ditch or 'coming out of the edge of the ditch,' and running toward the highway. In his words, defendant immediately 'got on my brakes and blowed [sic] my horn. * * * He [Mike] almost came to a stop, or appeared that he did, and I wouldn't say that he did, but what I mean, the best I remember he turned towards me.' But Mike continued onto the pavement and, when he was about 'three-fourths of the way across' the west or southbound lane (and thus within two or three feet of the center of the highway), he was struck by defendant's automobile.

Trooper Montgomery of the Missouri State Highway Patrol, who investigated this accident, found parallel 'tire marks' or 'skidmarks' approximately 114 feet in length, which had been left by defendant's automobile 'as far as I [Montgomery] could tell.' Both parallel marks began in the west or southbound lane at a point about even with the property line between the Blumenberg and Dillon homes and ran in a southerly direction, curving gradually to the west with the right-hand mark running onto the west shoulder. Plaintiffs' witness Lucas, a registered land surveyor, testified that the distance 'from about the middle of the Blumenberg home to the middle of the Dillon home' was 170 feet, 'one foot more or less,' and a large plat drawn to scale by Lucas and received in evidence shows that it is approximately 124 feet from the south end of the Blumenberg home to the north end of the Dillon home. (All emphasis herein is ours.)

Before ruling defendant's points, we refer briefly to the factual account offered by Ricky, Mike's brother. His father, plaintiff William, had stated in a pretrial deposition that, although Ricky had seen the accident, 'he can't give me any picture, only but that boy [Mike] was hit and he [Ricky] run to the boy when he fell'--'you can talk to him and he will say he seen this, and then you will say, did it happen like this, and he will say yes.' But by trial time, Ricky apparently was regarded as having ripened into 'a testimonial plum' to be 'shaken down' before the jury. Hildreth v. Key, Mo.App., 341 S.W.2d 601, 610. Upon trial, defendant's counsel objected to a substantial portion of Ricky's testimony on the grounds of 'estoppel' and 'surprise' by reason of plaintiff William's statements in his pretrial deposition; and, on this appeal, error is assigned in the overruling of that objection. There having been no objection to the competency of Ricky as a witness [V.A.M.S. Sec. 491.060; Hildreth v. Key, supra, 341 S.W.2d loc.cit. 608-612], no doubt the objection to his testimony was ruled properly. But it is unnecessary for us to assume the difficult and unrewarding burden of attempting to piece out from Ricky's childish responses a consistent, coherent, comprehensive account of Mike's conduct and movements, since plaintiff's attorney (although insisting that Ricky properly was permitted to testify) asserts that he 'presented a prima facie case of humanitarian negligence without the aid of Ricky Dillon's testimony, which was merely cumulative.' However, it may not be inappropriate to observe in passing that Ricky did not see defendant's automobile until he 'heard the wheels of the wreck [sic] squeaking' and 'turned around,' and that it would be utterly impossible to determine from his testimony either the location or the speed of defendant's automobile when Mike was at any given point. Cf. Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, 498(9).

Our initial concern is as to submissibility; and, since plaintiff's verdict-directing instruction 1 submitted disjunctively humanitarian negligence in three particulars, we must determine whether a prima facie case was made on each submitted particular. We consider first defendant's alleged negligence in failing to stop. Of course, the humanitarian doctrine imposed upon defendant no duty to act until a situation of imminent peril arose [Wilson v. Toliver, Mo., 305 S.W.2d 423, 429(8); Schmidt v. Allen, Mo., 303 S.W.2d 652, 657(6); Yeaman v. Storms, 358 Mo. 774, 778, 217 S.W.2d 495, 498(1)], and the precise place where, and time when, Mike came into a position of imminent peril were for the jury to determine. Bunch v. Mueller, 365 Mo. 494, 499, 284 S.W.2d 440, 443(6); Welch v. McNeely, supra, 269 S.W.2d loc.cit. 876(10); Stith v. St. Louis Public Service Co., 363 Mo. 442, 450, 251 S.W.2d 693, 698(7), 34 A.L.R.2d 972. But the jury reasonably could have found that Mike was in imminent peril, when defendant first sighted him (Mike) in the west ditch and running toward the highway. Triller v. Hellwege, Mo., 374 S.W.2d 104, 107(4). In fact, the mathematical...

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