Hicks v. Simonsen
| Decision Date | 31 December 1924 |
| Docket Number | No. 24266.,24266. |
| Citation | 270 S.W. 318 |
| Parties | HICKS et ux. v. SIMONSEN. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.
Action by Clifford J. Hicks and wife against N. K. Simonsen, doing business as Simonsen's Pie Bakery. Judgment for plaintiffs,_and defendant appeals. Affirmed.
Culver, Phillip & Voorhees, of St. Joseph, for appellant.
Randolph & Randolph, of St. Joseph, for respondents.
On August 17, 1921, Clifford J. Hicks and Lillard Hicks, his wife, filed in the circuit court of Buchanan county, Mo., an action for $10,000 damages against N. K. Simonsen, doing business as Simonsen's Pie Bakery, on account of the alleged injury and death of plaintiffs' infant child, Betty Hicks.
In November 16, 1921, a first amended petition was filed on which the cause was tried. It alleges, in substance, that the plaintiffs are the natural father and mother of Betty Hicks, deceased, who was at the time of her death, hereafter mentioned, a single and unmarried infant five years of age; that defendant was engaged in the bakery business in St. Joseph, .Mo., and as a part of same owned and operated an automobile delivery wagon in connection therewith; that St. Joseph is a municipal corporation of Missouri, and a city of the first class; that Seventeenth street in said city runs north and south, and Francis street runs east and west therein; that both streets are public thoroughfares in said city and intersect each other; that on April 15, 1921, Betty Hicks, the infant child of plaintiffs, was lawfully on the west side of Seventeenth street, at its intersection with Francis street, and defendant, through its servant, Harold Everett Tarwater, while driving a delivery automobile in a westerly direction upon Francis street, and turning from there in a northerly direction upon Seventeenth street, upon the business of defendant, carelessly, negligently, and recklessly drove and operated said automobile at a high and excessive rate of speed; that Francis and Seventeenth streets are paved with smooth, hard-faced paving, which at said time were wet and slippery from rain; that said Tarwater, while thus operating said automobile west along Francis street, carelessly and negligently failed to take into account the probability of said automobile skidding on said streets; that Francis street, as it approaches the intersection of Seventeenth street from the east, is a downhill grade; that said Tarwater continued to carelessly and negligently drive said automobile at said high and excessive rate of speed down said hill, carelessly and recklessly turned said automobile from its westerly course on Francis street, to a northerly direction on Seventeenth street, and, in so turning, carelessly, negligently, and recklessly caused said car to move to, upon, and along the west or left-hand side of Seventeenth street at the point where Seventeenth street intersects the north side of Francis street, at the place where pedestrians usually pass across Seventeenth street, on the north side of Francis street, and carelessly and negligently caused said automobile to skid toward the west at said point of intersection, so that said automobile struck, ran against, upon, and over said Betty Hicks, who was then and there lawfully upon that portion of said intersection as aforesaid, west of the center of Seventeenth street and near the west curb of the latter, and that said Tarwater so carelessly and negligently ran said automobile against,. upon, and over said Betty Hicks as aforesaid, when he saw, or in the exercise of ordinary care and prudence should have seen, said Betty Hicks, so as to have avoided striking her and causing her death, which occurred on June 8, 1921. It is charged that Tarwater was a careless, reckless, and negligent automobile driver, and that defendant was careless and negligent in employing him, and in retaining him in his employ, when he knew, or in the exercise of ordinary care ought to have known, that he was a careless, negligent, and reckless driver. The petition then sets out the damages alleged to have been sustained, and the expenses paid out on account of the striking, injuring, and killing of said Betty Hicks.
The answer is a general denial.
Plaintiffs' Evidence.
Mrs. A. Salmon testified that she lived at 218 North Seventeenth street; that her home was not quite a half block from the corner of Seventeenth and Francis streets, and north from Francis street; that she did not know Betty Hicks before the accident, but learned who she was afterwards. She was asked if she saw the accident, and answered that she was standing at her bedroom window and could see plainly; that Betty Hicks was starting to cross Seventeenth street, when the car came around the corner, and witness then turned her head, as she was afraid something might occur, and she could not get to the child in time; that she did not see what happened afterwards; that she first saw Betty Hicks at the northwest corner; that she had taken about two steps off of the sidewalk; that she had gone a trifle farther when the car came around the corner swiftly; that she was afraid something would happen and turned her head; that the child acted like she was puzzled, threw her arms in the air; that she then knew the child was rattled as to which way to go; that she stood still and threw her arms in the air; that she (the child) was then about 3 feet from the sidewalk; that she (witness) did not know what further occurred until she went out after the accident to inquire how badly the child was hurt; that the car was running fast and headed north; that it looked like a delivery, covered car of some sort; that her son and daughter were in the room with her; that her daughter was 13 years of age; that when she went out after the accident, it was a damp day, and she saw tracks, as though a car had skidded toward the sidewalk where the child was standing.
On cross-examination, witness testified, in substance, that Francis street runs east and west through St. Joseph, Mo., and Seventeenth street runs north and south through said city; that she lived at 218 on the west side of North Seventeenth street, about one-half block north of Francis street; that there is a brick residence on the northwest corner of Seventeenth and Francis streets; that north of this residence is a vacant lot, and next to it was the home of witness; that her house fronts on Seventeenth street; that her bedroom Was in the south part of her building; that it was a side room, but did not front on Seventeenth; that a living room was south of the bedroom where she was located; that she noticed the child standing there before she noticed the automobile; that there was a grocery store on the corner, and next door was a meat market; that there was a basket store on the northeast corner of Seventeenth and Francis streets; that she learned the child lived on the corner of Seventeenth and Felix streets; that she lived on the west side of Seventeenth street; that Betty Hicks was headed' east toward the basket store and the automobile was coming from the east, around the corner by the basket store, when witness first saw it; that it had come along Francis street from the east, and had just turned the corner going north at the basket store; that Betty Hicks, while in Seventeenth street, took a few steps more, and witness saw the car getting closer to her, and then turned her head, and this was the last she saw of her; that when the child threw her arms in the air, the automobile was pretty close to her, and that was when witness turned her head; that she was not watching the car, but watching the child mostly; that she took no particular notice of the car, and did not know where it stopped; that she did not see the car strike the child; that Francis street is very steep downhill from Eighteenth to .Seventeenth street, and the latter is practically level along there; that it had rained the morning of the accident; that the pavement that morning was very slick; that it is a smooth pavement on Francis street; that she did not think Francis street was oiled before the accident; that she saw the automobile when it approached the child, and watched it until it went about 12 to 15 feet when she turned her head.
Esther Salmon testified in behalf of plaintiffs substantially as follows: That she lived with her mother at 218 North Seventeenth; that she saw the accident; that she saw Betty Hicks crossing the street, and then the mother of witness screamed; that she was combing her hair by the window, when her mother pointed out to her Betty Hicks as a sweet child, and that she (witness) then saw her crossing Seventeenth street; that the child was just a little ways from the curbing, when the car came around, and it had been raining; that the car skidded and the mother of witness screamed; that she (witness) turned around, and when she went to school saw where the car had skidded; that the child was about 3 feet from the sidewalk; that she thought the car was about 2 feet from the child, or something like that; that after the accident she saw where the car had skidded, about 5 feet; that the car was going kind of fast, because the driver could not control his car, and could not stop in time.
On cross-examination, witness testified that when her mother screamed she looked out of the window, but did not see the car hit the child; that she saw the little girl crossing the street; that she was not across, and the car was coming around the corner; that her mother thought the car would hit her, screamed, and ran; that she looked out of the window before her mother screamed; that when her mother pointed out the little girl, the latter was crossing the street, the car came around and her mother screamed, and witness then turned toward her mother; that she never noticed the car when it turned the corner at the basket...
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