Eisenman v. Griffith

• Decision Date: 18 May 1914
• Docket Number: No. 11144.,11144.
• Citation: 167 S.W. 1142,181 Mo. App. 183
• Parties: EISENMAN v. GRIFFITH.
• Court: Missouri Court of Appeals

167 S.W. 1142

181 Mo. A. 183

EISENMAN v. GRIFFITH.

No. 11144.

Kansas City Court of Appeals. Missouri.

May 18, 1914.

Rehearing Denied June 13, 1914.

1. APPEAL AND ERROR (§ 1078) — BRIEFS— CONTENTS — POINTS AND AUTHORITIES.

Instructions not complained of in appellant's points of error will not be reviewed, particularly where appellant did not include them in his abstract, and they were supplied by respondent.

2. MUNICIPAL CORPORATIONS (§ 705) — INJURIES TO PERSONS ON STREETS — DUTY OF DRIVER OF AUTOMOBILE.

It is the duty of the driver of a motor car to keep a lookout in the direction his car is going and turning, so as to avoid others on the street.

3. MUNICIPAL CORPORATIONS (§ 705) — STREETS — INJURIES TO PERSONS ON STREET.

Where the driver of an automobile sees a pedestrian in peril, he must take all reasonable measures to avoid running him down.

4. APPEAL AND ERROR (§ 1106) — NEW TRIAL (§ 26) — PLEADING AND PROOF — VARIANCE — FAILURE TO OBJECT.

Where the petition stated plaintiff's name as "Gerard," and the evidence showed it to be "Gerald," the variance, when not complained of before motion for new trial, is not fatal, and, even after appeal by defendant, the judgment will not be reversed therefor, but the case will be remanded for amendment in accordance with Rev. St. 1909, § 1848, providing that the court may at any time, in the furtherance of justice, allow the amendment of pleadings to correct mistakes in the names of the parties.

5. INFANTS (§ 80) — ACTIONS — APPLICATION FOR NEXT FRIEND.

Where an infant's grandfather had had entire custody of him from birth, the fact that the grandfather's application for appointment as next friend, in an action for personal injuries received by the infant, stated he was the infant's father is immaterial.

6. APPEAL AND ERROR (§ 1048) — REVIEW — HARMLESS ERROR.

In a personal injury action by one run down by defendant's automobile, the propounding of a question whether defendant had offered to compromise, while erroneous, will not warrant reversal, where defendant had no defense, and the question was not answered.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

Action by Gerald Eisenman against D. J. Griffith. From a judgment for plaintiff, defendant appeals. Affirmed and remanded to permit amendment of petition.

Glenn R. Donaldson, of Kansas City, for appellant. Frank Friedberg and Jesse E. James, both of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff is a minor, and this action is brought through his next friend for personal injury received by being run over by defendant's automobile. The judgment was for the plaintiff.

The action is based on the humanitarian doctrine, thereby conceding plaintiff's negligence, notwithstanding he was a small newsboy 12 years old. The place where the injury occurred was in the street at Eighteenth and Troost avenue, Kansas City. The latter street runs north and south, and the former east and west, and each have street car tracks. Plaintiff was standing on the southwest corner of the streets, and defendant's automobile, driven by a negro chauffeur in his employ, was coming along Troost avenue approaching Eighteenth street from the south at a speed of from 15 to 20 miles an hour, intending to turn west into Eighteenth street. Plaintiff saw a west-bound street car approaching on Eighteenth from the east. He was selling papers, and wished to get aboard that car, and started in a walk diagonally across to the northeast corner. When he reached the crossing of the street railway tracks, slightly north of the Eighteenth street track, he was struck by the automobile with such force as to carry him along 10 or 12 feet, permanently injuring him. The...