Frank v. Free

• Decision Date: 06 April 1915
• Docket Number: No. 13946.,13946.
• Citation: 190 Mo. App. 73,175 S.W. 217
• Parties: FRANK et al. v. FREE.
• Court: Missouri Court of Appeals

175 S.W. 217

190 Mo. A. 73

FRANK et al. v. FREE.

No. 13946.

St. Louis Court of Appeals, Missouri.

April 6, 1915.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Julius E. Frank and others against Charles Free, doing business as the Free Laundry. From judgment for plaintiffs, defendant `appeals. Reversed.

Jeffries & Corum, of St. Louis, for appellant. Wyrick & Eaken, of St. Louis, for respondents.

REYNOLDS, P. J.

Between four and five o'clock in the afternoon of July 28th, 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 wheel about four feet away from the right hand curb of the street. The horse was a gentle animal and was travelling 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 font 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, 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 c'tild's parents. This was his testimony in chief. He further testified that at the time of the accident the left rear 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 45 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 Bard avenue, right opposite plaintiffs'...