Ginter v. O'Donoghue
| Citation | 179 S.W. 732 |
| Decision Date | 01 November 1915 |
| Docket Number | No. 11501.,11501. |
| Parties | GINTER v. O'DONOGHUE. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Buchanan County; Wm. H. Haynes, Judge.
"Not to be officially published."
Action by Delilah M. Ginter, by David M. Ginter, her next friend, against Francis C. O'Donoghue. From an order granting a new trial after a verdict for defendant, defendant appeals. Affirmed.
Culver & Phillips, of St. Joseph, for appellant. Duvall & Boyd, of St. Joseph, for respondent.
Plaintiff sued for damages, alleging, in substance, that defendant, while operating his automobile upon a public street, much used for travel, in the city of St. Joseph, negligently struck and injured her. The charges of negligence, upon which the case was submitted, were that the defendant ran his car "in a careless, negligent, and reckless manner," and negligently ran his car against plaintiff without giving any alarm or signal of his approach. The jury found for defendant, and the court sustained plaintiff's motion for a new trial; whereupon defendant appealed.
No grounds were specified in the order granting a new trial, but it is practically conceded that the court erred in instructing the jury, in defendant's behalf, that the law required only the exercise of reasonable care on defendant's part; whereas, the statute (section 8523, R. S. Mo. 1909) imposes upon him "the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury."
Defendant's position, however, is that the evidence shows that in no event ought a verdict for plaintiff to be allowed to stand; and that therefore a new trial should not have been granted regardless of errors in the trial. Graney v. St. Louis, etc., R. Co., 157 Mo. 666, loc. cit. 680, 57 S. W. 276, 50 L. R. A. 153.
We do not understand defendant as contending that there is no substantial evidence tending to show that defendant was negligent, or that plaintiff was struck and injured. If such is defendant's claim, we answer it now by saying that clearly there was. The specific ground upon which defendant insists that plaintiff could not recover in any event is that plaintiff was guilty of contributory negligence.
Plaintiff was a girl not quite 16 at the time of the alleged injury. It occurred about 9 o'clock at night on Felix street between Seventh and Eighth streets, one of the much traveled thoroughfares in the city. This street has "white way" lamps and was "well lighted," or "very light." Plaintiff, leading her little five-year old sister by the hand, came out of a store on the south side of Felix street and went to the curbstone desiring to go diagonally across the street in a northeast direction to a fruit stand on the north side of the street. According to plaintiff's evidence, when she reached the curbstone she looked both east and west and, not seeing any automobile or vehicle coming, stepped out into the street between two "dead" automobiles which were standing close to the curb at that point. As she emerged from between the two automobiles and was about 6 feet from the curb out in the street, she says she again looked up and down the street, and, seeing no automobile coming, she started with her little sister to walk slowly in a northeastern direction across the street to the fruit stand. After she had gone about 15 or 20 steps and was in the center of Felix street, defendant in his automobile and going east approached her from the rear and struck her, knocking her down. She says no alarm was given by the automobile and that she did not see it until the instant it struck her. She says she was struck in the left arm, side, and back; that she remembered nothing after being struck until she found herself in a nearby drug store; that her left hip and side, left arm and shoulder were bruised; that her right knee was also bruised; that she was confined to her room and bed about five weeks; was dizzy and sick at her stomach when she would raise her head or try to get up; that, in attempting to walk or to put her left foot to the floor, her left hip and side would pain her; that she continued to suffer thus for about five weeks and, at times, has "dizzy spells" yet; that for a period of about four weeks she was unable to walk without difficulty and cannot now straighten her foot without great pain in her hip; that before she was injured her sleep was unbroken, but after that, for about five weeks, whenever she dozed off she would dream of automobiles and teams running into her, and cannot sleep very well yet. The injury occurred December 13, 1913. She was examined by Dr. Sampson on January 7th following, and he testified that he found her left leg a half inch longer than the other, due, in his opinion, to some inflammation that had taken place in the hip joint causing an effusion of fluid therein which pushed the head of the thigh bone partially out of the socket. The testimony of physicians was that, while her injuries were not permanent, her recovery would be slow.
As the case was not submitted specifically upon the theory of the humanitarian or "last chance" doctrine, negligence on plaintiff's part contributing to the injury will defeat her recovery. But the question which we have to settle is, not whether there is evidence from which a jury could properly find contributory negligence, but whether such fault on her part appears so indisputably that we can declare it as matter of law. And in passing on the question we must not only give plaintiff the benefit of all the evidence favorable to her theory of the case, but also the benefit of every inference which the facts in evidence will reasonably bear.
It is also proper to remember that:
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