Durham v. Morrison Tent and Awning Co.
| Decision Date | 12 July 1927 |
| Citation | 297 S.W. 137,220 Mo.App. 1161 |
| Parties | OPAL DURHAM, BY JAMES DURHAM, HER NEXT FRIEND, RESPONDENT, v. MORRISON TENT AND AWNING COMPANY, A CORPORATION, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Robt. W. Hall, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Banister Leonard, Sibley & McRoberts for appellant.
(1) Plaintiff failed to make out a case for the jury and defendant's instructions in the nature of demurrers to the evidence should have been given, because: (a) The plaintiff was under a legal duty to look before crossing St Charles street, particularly since this was a busy thoroughfare in the heart of the business district. Lowry v. Smith, 199 Mo.App. 163; Knapp v. Barrett, 216 N.Y. 226; Jones v. Wiese, 88 Wash. 356; Brickell v. Trecker, 176 Wis. 557; Thompson v White, 204 P. 561, 56 Cal.App. 173; Palmer v. Spencer, 96 Conn. 631; Chiappane v. Greenbaum, 178 N.Y.S. 854, 189 A.D. 579; Davis v. Breuner, 167 Cal. 683; Mayer v. Anderson, 173 P. 174, 36 Cal.App. 740. (b) The plaintiff, in crossing St. Charles street heedlessly and without looking, was guilty of contributory negligence as a matter of law. Lowry v. Smith, 199 Mo.App. 163; Mayer v. Anderson, 173 P. 174, 36 Cal.App. 740; Jones v. Wiese, 88 Wash. 356; Knapp v. Barrett, 216 N.Y. 226; and other cases cited supra, 1 (a), (c) Plaintiff's contributory negligence was the proximate cause of the accident and the last clear chance doctrine has no application to the facts. Wilson v. Washington Flour Mill Co., 245 S.W. 205 (Mo. App.); Murray v. St. Louis Wire & Iron Co., 238 S.W. 836 (Mo. App.); Bibb v. Grady, 231 S.W. 1020 (Mo. App.); Chappell v. United Railways Co., 174 Mo.App. 126; Dey v. United Railways Co., 140 Mo.App. 461; Paul v. United Railways Co., 152 Mo.App. 577; Fleming v. Railroad, 263 Mo. 180; Jones v. Wiese, 88 Wash. 356; Mayer v. Anderson, 173 P. 174, 36 Cal.App. 740. (2) (a) Where a specification of negligence in the petition is not proved, an instruction withdrawing such specification from the jury should be given. Pinteardd v. Hosch, 233 S.W. 81 (Mo. App.). (b) There was a total failure to prove the allegation in plaintiff's petition invoking the last clear chance doctrine, and the offered instruction properly withdrawing this from the attention of the jury should have been given. Cases cited supra, 1 (c). (3) The plaintiff was an unemancipated minor at the time of the accident, and her father was primarily liable for her support and maintenance, therefore, the testimony as to the reasonable value of the medical attention rendered her was improperly admitted. Worthington v. Worthington, 212 Mo.App. 216; State ex rel. v. Hall, 257 S.W. 1047 (Mo. App.); Kershner v. Kershner, 202 Mo. 238; Werner v. Schucart, 202 Mo.App. 176; Irwin v. McDougal, 274 S.W. 923 (Mo. App.); Perren v. Wilson, 10 Mo. 451. (4) There was no testimony supporting the specification of negligence in plaintiff's petition that the defendant failed to slow down the automobile in question, and the instruction offered withdrawing this specification from the jury should have been given. Cases cited supra, 2 (a). (5) (a) Courts do not take judicial notice of the ordinances of incorporated cities and towns, and such ordinances must be pleaded and proved as other facts in the case. Compton v. Maden, 120 Mo.App. 404; American Packing Co. v. Neece, 277 S.W. 606 (Mo. App.); Peterson v. Railways, 270 Mo. 67; City v. Ameln, 235 Mo. 669. (b) Since section 1301, Revised Code of Ordinances of the city of St. Louis 1914, was not introduced in evidence the specification of negligence based thereon wholly failed of proof, and should have been withdrawn from the jury by the proper instruction offered. Kroell v. Lutz, 236 S.W. 424 (Mo. App.); Borah v. Zoellner Motor Car Co., 257 S.W. 145 (Mo. App.)
C. J. Krueger, A. Lowell Morris and Frank Coffman for respondent.
(1) Defendant's instruction in the nature of a demurrer to the evidence was properly overruled: (a) The evidence does not conclusively show that plaintiff did not look. (b) Even if she had failed to look she would not have been guilty of contributory negligence as a matter of law, because it was defendant's statutory duty to sound a warning of the approach of the automobile. (c) There was no evidence that plaintiff did not look; she was not asked whether she looked or not; under such circumstances it was for the jury to say whether she made reasonable uses of her senses or not. Lowry v. Smith, 199 Mo.App. 163, 171. (2) Defendant joined with plaintiff in submitting plaintiff's contributory negligence to the jury by offering instruction No. 5, which the court gave for the defendant, submitting that issue to the jury. (3) The court committed no error in refusing defendant's withdrawal instructions D, E and G because: (a) The evidence was sufficient on the assignments of negligence, sought to be withdrawn by said instructions, to justify their refusal. Pinteardd v. Hosch, 233 S.W. 81 (Mo. App.). (b) When relevant testimony is adduced to sustain an issue, though such testimony may not measure up to the allegation of negligence, it is error, by withdrawal instructions, to tell the jury no such testimony exists, or that there is no evidence to sustain such allegation. Bussey v. Don, 259 S.W. 791 (Mo. App.). (4) Though plaintiff was an unemancipated minor, she may sue a wrongdoer for outlays for necessities, on the theory that her estate would be liable therefor, and that she may sue to recoup the corpus of her estate to that extent. Stotler v. Railroad, 200 Mo. 107-140-141.
This is an action for damages alleged to have been sustained by Opal Durham when she was struck by one of defendant's trucks at the intersection of Broadway and St. Charles streets in the city of St. Louis. There were a number of assignments of negligence in the petition, namely, failure to keep a vigilant watch; failure to give any signal of warning; negligently operating the truck at a high, excessive and dangerous rate of speed; failure to slow down the speed; negligently operating said truck at a rate of speed in excess of ten miles per hour; violation of a certain ordinance of the city of St. Louis, and the humanitarian rule.
Plaintiff requested and was given only one instruction, and that was on the measure of damages. Defendant asked instructions in the nature of demurrers to the evidence at the close of the plaintiff's case, and again at the close of the whole case. The court refused to give these, and separate withdrawal instructions were requested by defendant, withdrawing from the consideration of the jury each and every assignment of negligence in the petition. The court refused to withdraw any of the assignments of negligence from the jury. Plaintiff recovered judgment, and the defendant appeals.
The evidence discloses that Broadway runs north and south, and St. Charles runs east and west. Plaintiff was on the west side of Broadway and started to cross St. Charles street going north. When she had crossed St. Charles street about two-thirds of the way, she was struck by one of defendant's trucks, being driven westward on St. Charles street.
She testified that she did not see the truck until it struck her and that no warning signal of any kind was given. The evidence also discloses that when the truck was from eighteen to twenty feet away from plaintiff, it was traveling at a rate of speed of about eighteen or twenty miles per hour. Plaintiff did not say that she looked at any time before she was struck, to see if there was any vehicle approaching. In fact, the record is silent as to whether she looked or did not look. She does testify, however, that she did...
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