Haake v. Davis

• Decision Date: 17 June 1912
• Citation: 148 S.W. 450,166 Mo. App. 249
• Parties: HAAKE v. DAVIS.
• Court: Missouri Court of Appeals

148 S.W. 450

166 Mo. App. 249

HAAKE v. DAVIS.

Kansas City Court of Appeals. Missouri.

June 17, 1912.

1. NEGLIGENCE (§ 119)—VARIANCE BETWEEN ALLEGATIONS AND PROOF.

A plaintiff pleading a specific act or acts of negligence must recover, if at all, on proof of the existence of one or more of the acts pleaded.

2. NEGLIGENCE (§§ 121, 134)—EVIDENCE— PRESUMPTION AND BURDEN.

The burden is on plaintiff not only to show defendant's negligence, but to show that such negligence was the direct and proximate cause of the injury, and the connection between the negligence and the injury must not be left in the realm of doubt or conjecture, but either the negligence or its causal relation to the injury may be shown by circumstantial evidence.

3. MUNICIPAL CORPORATIONS (§ 706)—ACTIONS FOR NEGLIGENT USE OF STREET—SUFFICIENCY OF EVIDENCE.

Where, although no witness testified that he saw plaintiff struck by defendant's automobile, there was testimony that she was standing close to an opening in a crowd made for the automobile and was seen to fall, and it was conceded that the rear wheel ran over her, the evidence supported the inference that the car pushed against her and knocked her down, and hence justified a submission of defendant's negligence in driving the car against, upon, and over plaintiff, as alleged in the petition, although defendant testified that plaintiff ran against the automobile.

4. MUNICIPAL CORPORATIONS (§ 706)—ACTION FOR NEGLIGENT USE OF STREET—SUFFICIENCY OF EVIDENCE.

Evidence on the question of whether defendant ran his automobile through a crowd on a city street at a dangerous rate of speed held to justify the submission of his negligence to the jury.

5. MUNICIPAL CORPORATIONS (§ 705) — STREETS—NEGLIGENT USE—RATE OF SPEED.

To run an automobile on a city street through a crowd of playful, noisy children at a speed of five or six miles an hour is an act of gross negligence.

6. MUNICIPAL CORPORATIONS (§ 705) — STREETS—NEGLIGENT USE—CARE REQUIRED.

A person driving an automobile on a city street through a crowd of children must exercise care commensurate with the exigencies of the situation; the greatest care being only ordinary care in such a case.

7. MUNICIPAL CORPORATIONS (§ 706) — STREETS—ACTIONS FOR NEGLIGENT USE—INSTRUCTIONS.

An instruction that a person running an automobile through the streets of a populous city must use ordinary care to so regulate his speed as not to injure any one, and that failure to use such care is negligence, is not erroneous as making the driver an insurer of the safety of persons on the street.

8. MUNICIPAL CORPORATIONS (§ 706) — STREETS—ACTIONS FOR NEGLIGENT USE—INSTRUCTIONS.

Where the petition alleged that defendant's car was negligently driven against, upon, and over plaintiff, an instruction that, if defendant failed to use ordinary care to so regulate the speed of his automobile as not to injure any one and negligently ran the automobile into, upon, and over plaintiff, the jury should find for plaintiff, was not erroneous as enlarging the scope of the negligence pleaded.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Frances Clara Haake, a minor, by Charles G. Haake, next friend, against William H. Davis. From a judgment for plaintiff, defendant appeals. Affirmed.

Battle McCardle, of Kansas City, for appellant. Reinhardt & Schisby, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff, a girl six years old, was struck and run over by an automobile owned and operated by defendant, and, by her next friend, instituted this suit to recover damages for the injuries she sustained. The answer in legal substance is a general denial. The cause is here on the appeal of defendant from a judgment of $750 recovered by plaintiff in the circuit court.

The injury occurred about 6 o'clock in the afternoon of April 26, 1910, on Grauman avenue, in Kansas City, at a place just east of Holmes street. Shortly before the injury a street car running on Holmes street collided with and disabled an automobile, and the wrecked vehicle had been removed from the track, and placed in Grauman avenue, a short distance east of Holmes street. The place is in a thickly populated residence district, and in a short time a large crowd, variously estimated at from 40 to 100 persons had collected around the automobile. The crowd was made up of adults and children of various ages; the children predominating. There was much noise and confusion and some of the children were playing. The street was filled with the crowd, when defendant, driving a two-seated gasoline runabout, approached from the west on Grauman avenue. Witnesses for plaintiff testified that the car came into the intersection of Holmes street at a speed of 12 or 15 miles per hour, that it slowed down at the crossing of the street car tracks, and continued on eastward through the crowd at a speed much faster than a fast walk. The crowd opened a way for the automobile, and there is evidence tending to show that plaintiff was standing at the edge of the crowd in a place to which she had moved a moment before. Some part of the south side of the automobile struck her, probably the mud guard or fender over the front wheel, and threw her down. The rear wheel on that side of the car ran over her, and broke one of her legs near the hip. It is alleged in the petition that the car "was recklessly, care lessly, and negligently driven against, upon, and over this plaintiff"; and the specific acts of negligence charged are, first, in running the car at a high and dangerous speed, and, second, in failing to exercise reasonable care to avoid the injury after defendant discovered or should have discovered the dangerous position of plaintiff.

Defendant testified that, when he turned into Grauman avenue, he was running on the high gear, but as he approached the street car tracks he reduced speed almost to a full stop, changed to the low gear, blew the horn several times, saw the crowd, which ...