Fitzgerald v. Norman

• Decision Date: 06 April 1923
• Docket Number: No. 23072.,23072.
• Citation: 252 S.W. 43
• Parties: FITZGERALD v. NORMAN
• Court: Missouri Supreme Court

252 S.W. 43

FITZGERALD v. NORMAN

No. 23072.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Motion for Rehearing Overruled June 8, 1923.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Waldomore Fitzgerald, a minor, by his next friend, Charles F. Keller, against J. L. Norman. Verdict for defendant, new trial granted, and defendant appeals. Affirmed.

Chas. F. Keller and Strop & Mayer, all of St. Joseph, for appellant.

Randolph & Randolph, of St. Joseph, for respondent.

JAMES T. BLAIR, J.

Respondent, aged at the time four years and seven months, was struck by appellant's automobile and seriously injured. There was a verdict for defendant. The trial court granted a new trial on the ground that it had erroneously instructed the jury. This appeal followed.

Respondent lived with his mother and stepfather at 1720 North Second street in the city of St. Joseph. This number is between Linn street to the south and Chestnut street to the north, is on the west side of Second street, and the house is 50 or more feet south of Chestnut street. There is evidence tending to prove that the grade of Second street ascends gently from Linn to Chestnut. Second street is 70 feet wide between the property lines, and the paved roadway is 30 feet from curb to curb. Opposite the south side of respondent's home stands a hitching post which is 66½ feet south of the south line of Chestnut street. The injury occurred about 5 p. m. on October 7, 1919, in broad daylight. The street was dry. There is evidence tending to show that a light spring wagon was standing on the west side of the street and that the single horse attached to it was hitched to the post already referred to, its head to the north and the wagon to the south; that the wagon was about 2 feet from the curb and 5 feet wide. There is other evidence that the vehicle was an ordinary two-horse wagon; that the horses faced the south and were hitched to the post mentioned. Appellant was driving north on Second street in a Ford touring car at a rate variously estimated at from 10 to 15 miles per hour. He was running from 3 to 8 feet from the curb on the east side of Second street. The child ran into the street from the west side. He was running when he stepped into the street. He ran, according to some a the evidence, almost or quite, directly east across the street. According to appellant he ran suddenly from behind the wagon and thence across the street. He was struck and knocked down by the automobile. At some time appellant swerved his car somewhat to the left. There is evidence that this did not occur until the moment of impact. The boy was picked up 3 or 4 feet from the east curb of the street at a point 30 or 32½ feet south of Chestnut street. Appellant says he attempted to stop the car and did everything he could to save the child. There is evidence that appellant was 30 feet south of the point where the child entered the street when he did enter it. There is evidence which makes the distance less. Appellant testified he was running 10 miles per hour and saw the child when he ran into the street, and that the child and automobile were running at about the same rate of speed. After striking the boy appellant's car ran a considerable distance farther before it was stopped. The street is a residence street at and near the place of injury. Appellant lives some 3 or 4 blocks away and was familiar with the street.

The petition counts on excessive speed, violation of a speed ordinance, and the humanitarian doctrine. With respect to this last it is charged appellant was negligent in failing (1) to stop, or (2) to lessen the speed, or (3) to change the course of the automobile after he saw or could have seen respondent in a position of peril of which he was unaware. Failure to sound a warning is also alleged as negligence.

The instruction which the court gave at appellant's instance, and the giving of which was ruled to require a new trial, reads as follows:

"The court instructs the jury that if you believe and find from the evidence that while defendant was driving along Second street, * * * in the exercise of ordinary care, that is, such care as an ordinarily prudent person would ordinarily use under like or similar circumstances, that the plaintiff * * * came from behind a wagon and ran suddenly and unexpectedly in front of defendant's motor car, and placed himself in such a position that the defendant, by the exercise of ordinary care as above defined, could not after he saw the plaintiff stop his...