Goodwin v. Eugas

• Decision Date: 19 December 1921
• Parties: BRUCE GOODWIN, by Next Friend, FRED B. GOODWIN, Appellant, v. THOMAS C. EUGAS and DORA EUGAS
• Court: Missouri Supreme Court

236 S.W. 50

290 Mo. 673

BRUCE GOODWIN, by Next Friend, FRED B. GOODWIN, Appellant, v. THOMAS C. EUGAS and DORA EUGAS

Supreme Court of Missouri, First Division

December 19, 1921

Appeal from Cape Girardeau Court of Common Pleas. -- Hon. John A Snider, Judge.

Reversed and remanded.

H. E Alexander and Spradling & Burrough for appellant.

The petition charges a violation of the twelve-mile ordinance, a violation of the six-mile ordinance, a violation of the ordinance requiring operators of motor vehicles to slow down on approaching the intersection of streets and also common-law negligence. There was substantial testimony in support of each of the above charges of negligence. (1) Instruction No. 2, given for respondent, directed the jury to find a verdict for defendant if Floyd Eugas did not see appellant or, after seeing him, he did not have a reasonably sufficient time to warn him of the approach of his automobile, or stop, or both, before striking him, and ignored the other charges of negligence. This was error. Abramowitz v. Railroad, 214 S.W. 120; Ruth v Railroad, 70 Mo.App. 200; Bank v. Metcalf, 29 Mo.App. 395; Hoffman v. Perry, 23 Mo.App. 30; Stephen v. Railroad, 199 S.W. 274; Pullam v. Vaughan, 218 S.W. 890; Shortridge v. Raiffeisen, 222 S.W. 1033. (2) Instruction 4, given for respondent, is erroneous for the following reasons: (a) It places appellant, a boy eight years of age, on an equality with an adult in exercising reasonable care for his own safety. Brown v. Railroad, 127 Mo.App. 510; Schmidt v. Railroad, 163 Mo. 654; Lange v. Railroad, 208 Mo. 479; Lynch v. Railroad, 112 Mo. 438; Jacobs v. Sporting Goods Co., L. R. A. 1917F, 9. (b) This instruction leaves out of view the duty of the operator of the automobile in the emergency. If appellant saw the automobile before it struck him, or by the exercise of ordinary care might have seen it in time to have avoided the injury, the operator of the automobile, according to this instruction, was under no obligation to try to avert the catastrophe, and was not blameworthy either whether by failing to look he did not see the danger, or seeing it he made no effort to avert it. Hovarka v. Railroad, 191 Mo. 457; Zander v. Railroad, 206 Mo. 464; Murray v. Railroad, 108 Mo.App. 507. (c) The evidence discloses that appellant sustained his injuries at about noon; that school had recessed for lunch; and that there were many children on the street and sidewalk. The testimony of all the witnesses who saw the operator driving the car was that Floyd Eugas was driving the car at an excessive rate of speed. The instruction ignores the last-clear chance doctrine. (3) Instruction 5, given for respondent, does not properly declare the law. (a) It places upon the appellant, a boy eight years of age, the same degree of care and caution that the law requires of an adult. (b) It authorized the jury to find a verdict for the defendant, although the automobile was operated at a greater rate of speed than twelve miles an hour, if appellant's injuries were sustained by his own negligence and carelessness in attempting to cross the street after he saw the automobile approaching. Powers v. Railroad, 202 Mo. 283. (c) The great weight of evidence in this cause is that respondent was exceeding the speed limit, and the presumption of law is that appellant was exercising due care, and assuming, as he had a right to, that the car was not being run at a rate of speed in excess of that prescribed by ordinance, and that he did not know, or in the exercise of that degree of care and caution that could be expected of a boy of his age and experience, could not have known, that it was so running, he was not guilty of negligence in proceeding to cross the street, using such care and caution. Powers v. Railroad, 202 Mo. 280. (4) Instruction 6, requested by respondent, directs the jury to find a verdict for defendant if the negligence of plaintiff caused, or directly contributed to the injuries of appellant. This instruction ignores the fact that appellant is a boy of eight years and that his tender years would excuse concurring negligence. Holmes v. Railroad, 207 Mo. 164; Quirk v. Railroad, 210 S.W. 103; Malott v. Harvey, 204 S.W. 940. This instruction is also erroneous in requiring the jury to find that the negligence of defendant was the sole cause of appellant's injuries. Wallack v. Railroad, 123 Mo.App. 160; Oates v. Railroad, 168 Mo. 548. (5) The giving of instruction 7, requested by respondent, was prejudicial error. (a) It assumes that appellant started across the street, and saw respondent's automobile coming towards the place where the injury occurred, chasing a playmate in front of the approaching automobile, which was a disputed fact. Rice v. McFarland, 41 Mo.App. 494; Matthews v. Railroad, 26 Mo.App. 82. (b) It also gives undue prominence and comments upon facts proven by respondent, but denied by appellant. (c) It authorized a verdict for defendant on the sole ground mentioned in the instruction, and disregarded and ignored the violation of the ordinances pleaded and proven. (d) It does not require the operator of the automobile to exercise ordinary care and caution, but authorized a verdict for the defendant if appellant started across the street and saw respondent's automobile coming toward the place where the injury occurred, chasing a playmate, in front of the approaching automobile, although the operator of said automobile could have been driving his car at the rate of fifty miles an hour and might not have been looking in front of him, but looking to the side waved at some companions, as the evidence showed that he was. Powers v. Railroad, 202 Mo. 280.

Caruthers & Barks and Hines & Hines for respondent.

(1) One of the fundamental rules of the law of negligence is that the person complaining of an injury occasioned by the negligence of another must himself be free from negligence. 28 Cyc. 37, 38; Huddy on Automobiles (5 Ed.) sec. 351; Lewis v. Met. St. Ry. Co., 181 Mo.App. 421; Winter v. Van Blarcom, 258 Mo. 418; Keele v. Railroad, 258 Mo. 62; Priebe v. Crandall, 187 S.W. 605; Campbell v. Transit Co., 121 Mo.App. 412. (2) Plaintiff did not plead the humanitarian doctrine, hence cannot complain of defendant's instruction 2 on that ground. Keele v. Railroad, 258 Mo. 62. No recovery can be had under the humanitarian rule if plaintiff had the last clear chance to step aside and negligently failed to do so when aware of danger. Aronson v. Ricker, 185 Mo.App. 535. (3) A child eight years of age who left a place of safety and started to run across the street in front of an automobile and was struck was held to be guilty of negligence precluding recovery. Huddy on Automobiles (5 Ed.), sec. 479; Moran v. Smith, 114 Me. 55; Hargrave v. Hart, 9 Dom. Law Rep. 521. (4) Reversible error is error materially affecting the merits of the action, in the belief of the appellate court. Secs. 1276, 1513, R. S. 1919; Trainer v. Mining Co., 243 Mo. 371; State v. Douglas, 258 Mo. 291-297. (5) An erroneous instruction is not necessarily a ground for reversal. Hamon v. Transit Co., 102 Mo.App. 216-233; South West Ry. v. Railway, 110 Mo.App. 300. Although the instructions given may not be wholly free from criticism, yet, if the verdict is manifestly for the right party, judgment will not be reversed. Peterson v. Transit Co., 199 Mo. 321; Morus v. Railway, 184 Mo.App. 106; Sellinger v. Cromer, 208 S.W. 871; Brisco v. Railway, 208 S.W. 885. Nor will an erroneous instruction, where the verdict is for the right party, cause a reversal. State ex rel. v. Stone, 111 Mo.App. 364; Nagle v. Railway, 169 Mo.App. 284; Perry v. Van Matre, 176 Mo.App. 100. (6) Instructions must be taken as a whole. Patterson v. Evans, 254 Mo. 304. (7) The chauffeur is the best witness as to speed. Huddy on Automobiles (5 Ed.), sec. 920; Bowes v. Hopkins, 84 F. 769; Livingstone v. Dole, 167 N.W. 641.

RAGLAND, C. Small, C., concurs; Brown, C., absent.

OPINION

RAGLAND, C. --

Plaintiff was struck and run over by an automobile owned by defendant, Thomas C. Eugas (hereinafter called the defendant), while it was being driven by his minor son along one of the public thoroughfares of the city of Cape Girardeau. This suit is to recover damages in the sum of $ 25,000 for the resulting personal injury.

Fountain Street in the city of Cape Girardeau runs north and south; the next street east of it and paralleling it is Lorimier Street; they are intersected by Independence Street, a paved street running east and west. The place where the collision occurred was on the south side of Independence Street, near the curb, and from 75 to 90 feet west of the west line of Lorimier Street. From Fountain Street east to Lorimier along Independence there is a pronounced descent in the grade. The witnesses in speaking of the rise from Lorimier Street west called it a hill.

One of the public schools of the city was located on the south side of Independence Street immediately east of its intersection with Fountain Street. About twelve o'clock noon on December 7, 1915, a number of children, variously estimated at from 25 to 75, who had been dismissed from this school for the dinner period, were going east on Independence Street between Fountain and Lorimer. Some of them were passing along the sidewalk and parkway on the south side of the street, among them, plaintiff, who was then eight years of age. He and a little girl, presumably of about the same age, were playing "tag." She was running east on the sidewalk, and he was running after her trying to touch her. When she was within about seventy-five feet of Lorimier Street she suddenly turned and ran diagonally across Independence Street, the plaintiff following her at a distance of nine or ten feet. He was struck by the automobile...