Frank v. Free

• Court: Missouri Court of Appeals
• Writing for the Court: REYNOLDS, P. J.
• Citation: Frank v. Free, 175 S.W. 217, 190 Mo. App. 73 (Mo. App. 1915)
• Decision Date: 06 April 1915
• Parties: JULIUS E. FRANK et al., Respondents, v. CHARLES J. FREE, Appellant

175 S.W. 217

190 Mo.App. 73

JULIUS E. FRANK et al., Respondents, v. CHARLES J. FREE, Appellant

Court of Appeals of Missouri, St. Louis

April 6, 1915

March 3, 1915, Argued and Submitted

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.

Judgment reversed.

Jeffries & Corum for appellant.

(1) The mere fact that a child was run over by defendant's wagon while on the public thoroughfare does not in itself support an inference that the injury was caused by any negligence on the part of defendant. Lee v. Jones, 181 Mo. 298; Parsons v. Yeager Milling Co., 7 Mo.App. 594; McNamara v. Beck, 52 N.E. (Ind. App.) 707; Stock v. Wood, 136 Mass. 353. (2) The duty of a driver is to look toward the front and he does not have to anticipate that pedestrians will run into the side of his vehicle and injure themselves. Hight v. Bakery Co., 168 Mo.App. 459; Osterheld v. Peoples, 208 Pa. 310; Hebard v Mabie, 98 Ill.App. 543. (3) A driver is under no obligation to anticipate that a child on the sidewalk will attempt to cross the street and collide with his vehicle. Mascheuk v. Railroad, 71 Mo. 278. (4) If A puts B on the stand as his only witness to prove a fact, and does not prove it, then he is precluded from impeaching B or from otherwise inviting the jury to disregard B's testimony. Roden v. Transit Co., 207 Mo. 408. (5) If the injury may have resulted from one of two causes, for one of which and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result, and if the evidence leaves it to conjecture the plaintiff must fail in his action. McGrath v. Shoe Co., 187 Mo. 288; Gorramson v. Mfg. Co., 186 Mo. 307; Warner v Railroad, 178 Mo. 134; Caudle v. Kirkbride, 117 Mo.App. 417; Browning v. Railroad, 106 Mo.App. 729; Cathron v. Pkg. Co., 98 Mo.App. 348.

Wyrick & Eaken for respondents.

(1) A demurrer to the evidence admits every fact proved, or which may be inferred from the testimony to be true, and should never be sustained unless the evidence, when thus considered, fails to prove some essential fact of plaintiff's case. McNichol v. Pacific Ex. Co., 12 Mo.App. 401; Noeninger v. Vogt, 88 Mo. 589; Harris v. Railroad, 89 Mo. 233; Donohue v. Railroad, 91 Mo. 357; Holman v. Pints Creek Min. Co., 102 Mo.App. 423; Creighton v. Modern Woodmen, 90 Mo.App. 378. (2) On a demurrer to the evidence the court must indulge every inference of fact in favor of the party offering the evidence which a jury might indulge with any degree of propriety. Pauck v. St. Louis Dressed Beef Co., 159 Mo. 467; Bender v. Railroad, 137 Mo. 240; City v. Railroad, 114 Mo. 13; Field v. Railroad, 46 Mo.App. 449; Davis v. Clark, 40 Mo.App. 515; Parker-Washington v. Dennison, 249 Mo. 449; Barr & Martin v. Johnson, 170 Mo.App. 394; Ladd v. Williams, 104 Mo.App. 390; Owen v. O'Reilly, 20 Mo. 603; Kattelman v. Fire Assn., 79 Mo.App. 447; Leeright v. Ahrens, 60 Mo.App. 118; Craine v. Street Ry., 246 Mo. 393.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

Between four and five o'clock in the afternoon of July 28, 1911, a fairly clear day, a delivery wagon owned by defendant was being driven along Burd avenue, in the city of St. Louis. The wagon was an ordinary laundry wagon, with covered sides and top, drawn by one horse. The driver had delivered a laundry package across the street from plaintiffs' residence. He then drove south about fifteen feet, turned slowly around and came back north on Burd avenue, intending to turn on Wells avenue, which intersects Burd avenue. Burd avenue is about thirty feet wide. Just before the accident the wagon had completed its turn and was going north along Burd avenue parallel with and its right wheels about four feet away from the right hand curb of the street. The horse was a gentle animal and was traveling at a slow walk. On the seat with the driver was a boy named Gaines, about eleven years old. Another boy, Lieberstein, about fourteen years old, was on the west sidewalk, that is, on the opposite side of the street from that upon which plaintiffs' house was situated and near where the wagon had stopped when delivering the packages. This boy was throwing nails at Gaines. While there were other people in the vicinity, these two boys and the driver were the only persons who witnessed the accident. The plaintiffs' child, a little girl two years and eleven months old, had been taken from her home, which was on the east side of Burd avenue, to a store on the west side of that street, and as we understand nearly opposite the home of the child, by a young girl friend of the family and brought back to her home. There the young girl left her, the child being on the front porch of her home, the porch close to the pavement. This was the last the young girl saw of the child until a very short time afterwards, just after crossing the street and when, walking toward her own home and along Burd avenue, the young girl heard the driver of the wagon "holler 'whoa' to his horse," and she turned around and began running back and saw the driver pick up the child from the street. As the wagon was driven slowly north on Burd avenue and about opposite the plaintiffs' home, the boy Gaines, who was seated with the driver, testified that he felt a jar, like the back wheel had run over something. As soon as the jar was felt, the driver stopped the horse, which had taken about four steps, as the boy testified. Asked if he had not seen the little girl in the street before the wagon struck her, the boy said that he had not. He further testified that he was looking at the driver and that the latter was looking to the front; had his head turned that way. On cross-examination this boy testified that the horse was going at a medium walk; that they had turned around on Burd avenue, expecting to go on Wells avenue, and the first knowledge he had of any accident or that anything had occurred, or that anything had been run over, was when he felt the bump; had not seen the child; had not seen her run over by the wagon.

The driver, Godwin, testified that he had driven south on Burd avenue and delivered a bundle of laundry. Driving a little further along Burd avenue, he turned around, drove fifteen feet south and then turned around, going north on Burd avenue. While he was turning around some boy was throwing nails at the boy in the wagon with him, and the boy started to get off to go after him, when the driver told him to sit down and not pay any attention to the one who was throwing nails. Driving along Burd avenue north, when about opposite the residence of plaintiffs, he felt the wagon run over something. At the time he was looking straight ahead; had not seen any child on the street nor on the sidewalk, nor on the steps of any of the houses; was driving in a walk. After he felt the hind wheel drive over something and had gone about fifteen feet, he stopped, jumped out of the wagon, ran back to where he found the child lying, picked it up and carried it into the first door that he came to, which happened to be the door of the house of the child's parents. This was his testimony in chief. He further testified that at the time of the accident the left real wheel of his wagon was about the center of the street and about ten feet from the east curbing. He was looking ahead; he repeated, and driving slowly; was doing that when he felt the jar on the rear wheel and that was the first he noticed or knew that he had run over anything; had seen no one in the street. When he felt the jar and looked back his first thought was that somebody had opened the end-gate of his wagon and that what he saw was a bundle which had dropped out. Then on looking further he saw that it was a child and jumped out of his wagon as quickly as he could. The wagon had curtains on its sides which obstructed the view of the sides of the street, as in an ordinary delivery wagon. "You could see the street before you but you couldn't see around back. . . . You could see about at an angle of forty-five degrees toward the front." The wagon was a little lighter than an ordinary delivery wagon, had one horse--a gentle one--going in a walk. If there was a child or any one else on the steps of any of the houses along the street, or in the street, he did not see them. The day was clear and it was about five o'clock in the afternoon.

Young Lieberstein, about fourteen and a half years old, testified that he knew Dorothy, the plaintiffs' daughter. Witness was going along Burd avenue on the day of the accident about 4:30 or 4:40 in the afternoon and was on the west side of the street, going north; saw the laundry wagon belonging to defendant and saw that there was a boy he knew in the wagon with the driver. When he first saw the wagon it had stopped and was delivering some laundry; had stopped on the west side of the street and was going south. The driver turned the wagon around toward the north and then he saw the back wheel of the wagon run over the little girl. The witness, at the time, was throwing nails at the boy in the wagon. Witness was behind the wagon and did not see the driver at the time of the accident. The horse was moving at an ordinary walk. When the accident happened to the little girl, this witness was about ten feet away. This was the testimony in chief of this witness. On cross-examination he testified that the driver of the wagon had delivered the package on the west side of Burd avenue, right opposite plaintiffs' residence. He stopped throwing nails at the boy in the wagon after the wagon turned; then he saw another boy that he knew and turned around to throw at him, and then, and as he turned back toward the wagon again, he saw the back wheel run over the little...