Granberg v. King Candy Co.

• Decision Date: 07 May 1935
• Docket Number: No. 22816.,22816.
• Citation: 81 S.W.2d 981
• Parties: GRANBERG v. KING CANDY CO.
• Court: Missouri Court of Appeals

81 S.W.2d 981

GRANBERG v. KING CANDY CO.

No. 22816.

St. Louis Court of Appeals. Missouri.

May 7, 1935.

Appeal from St. Louis Circuit Court, Division No. 7; Max G. Baron, Judge.

"Not to be published in State Reports."

Suit by Edward Granberg, Jr., a minor, by Edward Granberg, Sr., his father and next friend, against the King Candy Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Wm. R. Schneider and Paul M. Wishon, both of St. Louis, for appellant.

Barak T. Mattingly and Alva W. Hurt, both of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This suit was instituted on March 20, 1931, in the circuit court of the city of St. Louis, being an action to recover damages on account of personal injuries alleged to have been sustained by plaintiff in a collision between an automobile and a truck, which occurred on November 29, 1930, at the intersection of Elliott and St. Louis avenues in said city.

The plaintiff, Edward Granberg, Jr., was eight years old at the time of the accident and sued by his next friend and father, Edward Granberg, Sr. The collision occurred about 4 p. m. on a Saturday afternoon while it was raining. Elliott avenue is a north and south street about thirty-five feet in width, and St. Louis avenue is an east and west street about sixty feet in width.

The plaintiff, at the time of the collision, was riding in the rear seat of an Auburn sedan, his father driving, and the defendant's truck was being driven by William F. Weber. Both the automobile and the truck immediately prior to the collision were being driven on St. Louis avenue, the truck approaching the intersection from the east and the automobile from the west.

The version of the accident as given by plaintiff's father and next friend was as follows: "When I first saw the defendant's truck I was fifteen feet west of the west line of Elliott and eight or ten feet north of the south curb of St. Louis avenue, and the truck was in the center of St. Louis avenue about fifteen feet east of the east side of Elliott avenue, and coming west. The next time I saw it was at the moment of the collision. At the time of the impact I must have been about eight or nine feet from the southeast curb corner of Elliott and St. Louis and when my car came to a stop it might have been a foot or so closer to the corner, I don't know. When I saw the truck coming westwardly it was going between fifteen and eighteen miles an hour. I did not sound any horn or signal of my approach to the intersection of Elliott and St. Louis as I never had no reason to. When I first saw the defendant's automobile I was going about twenty miles an hour. Going at that rate on a west street I could stop in about forty-five feet. At the time my car struck the defendant's car the defendant's car was facing south and a little to the west. After the impact the front end of my automobile was against the defendant's truck behind the driver's seat and my automobile was north-west of the southeast curb corner about nine feet and about eight feet north of the south curb. My little boy was sitting in the rear seat. After the collision I got out of the left-hand driver's seat and I don't know how the boy got out. I did not see him again until I reached home."

The version given by Weber, the defendant's driver, was substantially as follows: That he was driving an open 1923 Reo light delivery truck at about fifteen or eighteen miles an hour to the center of St. Louis avenue; that prior to entering the intersection he came to a complete stop and signaled for a left turn and then proceeded southwardly into Elliott to the west of its center line at about seven miles an hour until the front end of his truck was within five feet of the south curb of St. Louis avenue, when the right side of his truck was struck, at the driver's seat, by a green Auburn sedan, which he had first seen two hundred feet west of said street intersection and coming eastwardly at about thirty-five or forty miles an hour, but which he did not notice again until the moment of the collision; that at the rate of speed he was going at the time of the collision he could have stopped his truck within about five feet.

The plaintiff testified that he was hurt on the right side of his head; that he can feel a hole there; that he has headaches, trouble remembering things, is nervous, does not make as good grades at school; that the place on his head is a scar and has a dent in it.

Physicians who examined the boy testified that he had an abrasion on the side of his head; that he was very nervous, complained of headaches, dizziness, upset stomach, and nausea; that there is a permanent scar on his head, and there is all probability that he will suffer bodily pain and anguish in the future. Another physician testified that his examination showed a permanent scar about two inches long on the right side of the skull and a little ahead of and above the right ear; also a depression running parallel with the scar in the same region; that the boy complained of headaches, dizziness, nervousness, pain in the eyeballs, inability to learn as before, and impairment of memory; that the X-ray he made of the boy's head showed a depressed fracture on the right side of the skull; that the depression, about two and a half inches in length and about a quarter of an inch in depth, is permanent. A physician called by defendant testified that the only thing he could see was a scar on the right side of the head above ear; and that he found no fracture and no evidence of disability outside of the scar.

There was evidence that the boy was kept out of school ten days following the accident, and that since the accident his school work was not kept up as well as it was before, and that there was an impairment of memory.

The petition contained four allegations of negligence, viz.:

1. Defendant's driver failed to give warning of the approach or turn of its automobile.

2. Defendant's driver failed to keep a watch or lookout for other automobiles.

3. Last clear chance allegation.

4. Violation of turning ordinance with reference to left-turn signal and failure to go beyond the center of the street intersection.

The allegations in the petition as to the injuries were as follows: "Plaintiff sustained a concussion of the brain; his head, scalp, back, right leg and right hip and the muscles, tendons, ligaments, tissues, nerves, bloodvessels and membranes thereof were bruised, contused, lacerated, abraded, sprained, wrenched, swollen, inflamed and discolored and his entire nervous system was shocked; a fractured depressed and broken skull and table bone. * * * Plaintiff further states that as a direct result of his said injuries he has suffered and will in the future suffer great pain of body and anguish of mind; that he has suffered and will in the future suffer from sleeplessness; nervousness, headaches, crying spells, dizziness, impairment of his memory, and soreness in his right hip; that he has a permanent scar on his head over his right temporal region; that he has been compelled to submit to medical and surgical treatment and attention since the date of said injuries to the date of the filing of this petition."

The answer consisted of a general denial, and an averment that whatever injuries plaintiff sustained were due entirely to the failure of his father to exercise the highest degree of care in the operation of the automobile.

The case was submitted to the jury on the last chance doctrine...