GOODWlN v. Eucas

• Decision Date: 19 December 1921
• Docket Number: No. 22175.,22175.
• Citation: 236 S.W. 50,290 Mo. 673
• Parties: GOODWlN v. EUCAS at al.
• Court: Missouri Supreme Court

236 S.W. 50

290 Mo. 673

GOODWlN v. EUCAS at al.

No. 22175.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

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

Action by Bruce Goodwin, by next friend, Fred B. Goodwin, against Thomas C. Eugas and another. From judgment for defendants, plaintiff appeals. Reversed and remanded.

H. E. Alexander and Spredling & Burrough, all of Cape Girardeau, for appellant.

Caruthers & Barks, of Cape Girardeau, and Hines & Hines, of Jackson, for respondents.

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 12 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 Lorimier. 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 75 feet of Lorimier street she suddenly turned and ran diagonally across Independence street, the plaintiff following her at a distance of 9 or 10 feet. He was struck by the automobile at some point between the curb and 5 or 6 feet north of it. The machine came from the west. It was being driven by defendant's 14 year old son, Floyd Eugas, who was hauling some milk cans for his father to a railroad station.

According to plaintiff's evidence the automobile came down the hill at the rate of from 25 or 30 miles an hour. Just before it reached the point of the collision the driver turned his head and waved to some one with his left hand. The next instant the car swerved suddenly to the south, and, after striking plaintiff, skidded 50 or 60 feet. Prior to the collision the car did not slow down, and no signal whatever was given of its approach. Some of his witnesses testified that plaintiff had gone out into the street but a step or two when he stopped and started back to the sidewalk, and that he was caught by the automobile suddenly turning in toward the curb. He himself testified that he was running after the little girl and some 9 or 10 feet from her "when she dodged out into the street right quick"; that he in following her had taken but one or two steps from the curb when he saw the car coming and got back into the gutter; that it looked to him like the car was going to hit the little girl, but it struck him instead.

According to defendant's evidence, the little girl and the plaintiff, following her, suddenly ran from the sidewalk out into the street right In front of the on-coming car. She barely escaped, but he, while still running after her, was struck. The driver testified that plaintiff "jumped right in front of the car." He also testified as follows:

"Q. Tell the jury whether or not he [plaintiff] was running until he was struck? A. He ran out in the street and saw me coming, and he started back, and he stopped, and I hit him.

"Q. You say he stopped? A. Yes; he started to go back, and he didn't have time to go back.

"Q. Did she [the little girl] run in front of your car or not? A. Yes, sir.

"Q. Did you make any effort or not to turn the car to miss her? A. Yes, sir.

"Q. Which way did you turn it? A. I turned it to the right and no more than I turned it until he jumped in front of the car."

There were some trees in the parkway between the sidewalk and the traveled part of the street. The evidence tends to show that on account of these trees there was not an unobstructed view of the traveled part of the street west from where plaintiff left the sidewalk and went into the street until the curb was passed. For the same reason, no doubt, the driver of a car coming down the hill from the west on Independence street would not have had a clear view of a pedestrian starting to cross the street east of him near Lorimier street until the latter passed the parkway and out into the street.

An ordinance of the city of Cape Girardeau provided that no motor vehicle should be driven over any of the city's highways at a greater rate of speed than 12 miles an hour. It further provided that every person operating such a vehicle, upon approaching pedestrians upon the traveled part of any highway, and not upon the sidewalk, and upon approaching an intersecting highway, should slow down and give a timely signal with bell, horn or other device. While there were some general averments in the petition as to the failure of the driver of the machine to exercise the degree of care required of him under the circumstances therein set forth, the violation of the several provisions of the ordinances was essentially the negligence counted upon.

Contributory negligence was the defense pleaded.

The court gave for defendant, among others, the following instructions:

"(2) The court instructs the jury that, before plaintiff can recover in this case, the jury must find and believe from the evidence that Floyd Eugas, the driver of the automobile, saw Bruce Goodwin in the street or could have seen him, and after seeing him he had a reasonably sufficient time to warn him of the approach of his automobile, or to stop, or both, in order to avoid striking him, and unless the jury so find your verdict will be for the defendant."

"(4) The court instructs the jury that it is the duty of one crossing a city street to make reasonable use of all his senses in order that he may observe impending danger, and a failure to do so is negligence, and by such reasonable use means such as an ordinary prudent and careful person would use and would exercise under like circumstances, and if the plaintiff, in attempting to make the said crossing, either saw the automobile before it struck him, or by the exercise of ordinary care on his part might have seen it, in time to...