Hight v. American Bakery Co.

• Decision Date: 03 December 1912
• Citation: 151 S.W. 776,168 Mo. App. 431
• Parties: HIGHT v. AMERICAN BAKERY CO.
• Court: Missouri Court of Appeals

151 S.W. 776

168 Mo. App. 431

HIGHT v. AMERICAN BAKERY CO.

St. Louis Court of Appeals. Missouri.

December 3, 1912.

1. APPEAL AND ERROR (§ 171) — THEORY OF CAUSE — CONCLUSIVENESS.

Where complainant constructed his petition on the turntable doctrine of negligence, and so tried and submitted the case to the jury, he was bound by such theory on appeal.

2. NEGLIGENCE (§ 23) — INJURIES TO CHILDREN — "TURNTABLE DOCTRINE."

In order that an action for injuries to a child may be maintained under the "turntable doctrine," it is necessary that the machinery or appliance, the operation of which was the direct cause of the injury, shall be a dangerous appliance in itself when set in motion, or that it shall be of a kind liable to become dangerous from the position or condition in which it was left if set in motion, and defendant must have been negligent in leaving the appliance or thing causing the injury unguarded, unsecured, or unattended in an open place frequented by children, so as to allow of the appliance being put in motion by the children who had access thereto.

3. NEGLIGENCE (§ 1) — "ACTIONABLE NEGLIGENCE" — DUTY TO USE CARE.

"Negligence" and "actionable negligence," even under the turntable doctrine, are distinguishable terms, since carelessness does not always involve liability, which attaches only when there has been a violation of duty by the party charged toward the party injured.

For other definitions, see Words and Phrases, vol. 1, pp. 148, 149; vol. 8, p. 7563; vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.]

4. PLEADING (§ 418) — COMPLAINT — CONSTRUCTION AFTER VERDICT.

Where defendant pleaded over after the overruling of a demurrer, the fact that the petition did not state a cause of action would not be ground for setting aside a verdict, or arresting judgment, if it was supported by the evidence.

5. NEGLIGENCE (§ 23) — INJURIES TO CHILDREN — WAGON — DANGEROUS APPLIANCE — EVIDENCE — TURNTABLE RULE.

Defendant caused one of its wagons to be driven through a city street at a walk, from which wagon its servants discharged certain advertising whirligig toys, or aeroplanes. Plaintiff, a boy of 10, and other children, followed the wagon in an attempt to procure the toys when they fell to the earth after their power was spent. One of the toys falling under the wagon, plaintiff reached between the wheels for it; but, before he could escape, the hind wheel passed over his arm, causing the injury complained of. Held that, there being no proof that the wagon was driven negligently, or that defendant's servants had knowledge of plaintiff's dangerous position, and plaintiff never having been in front of the team, they owed no duty to him to keep a lookout to see that he did not get under the hind wheels, and, there being no evidence of actionable negligence on defendant's part, plaintiff was not entitled to recover under the turntable doctrine.

6. NEGLIGENCE (§ 85) — INJURIES TO CHILDREN — CONTRIBUTORY NEGLIGENCE.

Where a boy of 10 placed his arm between the wheels of a moving wagon to seize a toy that had fallen under the wagon, knowing that if the wagon did not stop, and he did not get his arm out in time, he would be hurt by the wheel passing over it, and he was so injured, he was guilty of contributory negligence.

7. NEGLIGENCE (§ 82) — INJURIES TO CHILDREN — PROXIMATE CAUSE.

Where a child placed his arm between the wheels of a slowly moving wagon, from which a toy had been thrown by defendant's servants in the wagon, in order that he might seize the toy, but before he could do so the wheel caught his arm and he was injured, the placing of his arm between the wheels, and not the attractiveness of the toy, was the proximate cause of the injury.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Alex Hight, by his father and next friend, Max Hight, against the American Bakery Company. Judgment for plaintiff, and defendant appeals. Reversed.

Action by an infant for damages alleged to have been sustained by him by reason of a wagon of the defendant, appellant here, running over and injuring his arm, the infant suing by his father as next friend. The action was brought against the American Bakery Company and the Heydt Bakery, alleged to be a branch of the company. After a recital of the minority of plaintiff and the appointment of his father as his next friend, the amended petition upon which the cause was tried avers that plaintiff, then being a minor under the age of ten years, on Saturday, the ninth of July, 1910, was playing with other boys, mostly older than himself, on Dickson street in the city of St. Louis near his home, and while so playing the defendants caused a large wagon, similar to a transfer wagon, to be driven through Dickson street in the locality where plaintiff was playing, from which wagon defendants caused to be thrown into the air, large numbers of toys consisting of whirligigs, on which defendant advertised certain of the commodities it had for sale; that said whirligigs were whirled into the air and would come down in different directions as they were carried by currents of the air; that it was the purpose of defendants in causing the large wagon to pass through Dickson street and causing the whirligigs to be thrown into the air to attract the attention of children thereto, and that the whirligigs were exceedingly attractive to children and in this way defendants sought to advertise and did advertise their commodities; that on the occasion mentioned while numerous children were attracted to the place where defendants' employés were driving the wagon and whirling the whirligigs into the air, many boys were attracted thereto and struggled with each other to obtain the whirligigs as they fell through the air to the street and around and under the heavy wagon; that plaintiff being a child under ten years of age and not having the discretion of a larger boy or adult, saw one of these whirligigs fall under the wagon and rushed to obtain it, placing his hand and arm under the wagon to get the whirligig, and defendants' employés who were driving the wagon then and there carelessly and negligently caused the hind wheel of the wagon to pass over plaintiff's right arm, crushing the bone and flesh above the elbow so as to maim and cripple plaintiff for life. It is further averred that the defendants and their employés in driving the wagon and throwing the whirligigs into the air knew or by the exercise of ordinary care could have known that these toys would attract plaintiff and other children of immature understanding into a place of danger of being injured by the wagon and cause them to rush to obtain such of the whirligigs as would fall under the wagon and that in doing so they were likely to maim or kill such children by running over them; "that the act of so driving over the streets with such heavy wagon, throwing such whirligigs into the air, as aforesaid, and thereby enticing children to struggle to obtain the whirligigs, and to place their hands and arms under the wagon to obtain the same, and driving heedlessly, without noticing a child who had put his hand and arm under the wagon to obtain such whirligig, and passing over and crushing and breaking his arm, was an act of negligence on the part of defendants." Averring that in consequence of the injuries plaintiff had suffered great physical pain and mental anguish and will continue to suffer the same for many years and that he is injured, crippled and maimed for life and his earning capacity, after he attains the age of twenty-one years, will be greatly diminished in consequence of his injury, plaintiff prays judgment for $7,500, with interest and costs.

The American Bakery Company, in its answer, after denying each and every allegation in the amended petition, sets up a plea of contributory negligence on the part of plaintiff, the contributory negligence alleged being that plaintiff had carelessly and negligently crawled under the wagon and between the front and rear wheels thereof while the wagon was in motion and proceeding along the street, and in so doing carelessly and negligently allowed his right arm to get under the rear wheel of the wagon.

A reply denying this was filed.

The trial coming on before the court and a jury, plaintiff dismissed as to the defendant Heydt Bakery and thereafter the trial proceeded against the American Bakery. Company alone and resulted in a verdict and judgment in favor of plaintiff and against that defendant in the sum of $600, from which after interposing a motion for new trial as well as a motion in arrest of judgment and saving exception to the overruling of these motions, the American Bakery Company duly perfected its appeal to this court.

The learned counsel for appellant, in their printed argument upon which the cause is submitted, state that errors are assigned in only two respects in this case, aimed at the foundation of respondent's right to recover, and that question, counsel frankly state, is the only one they present for the consideration of the court; and whether error exists in the matter of giving or refusing instructions, save as to the instruction in the nature of a demurrer to the evidence, is a question which counsel say they will not discuss "for the reason that if respondent is entitled to recover under the theory pleaded and the evidence offered, we have no fault to find with the verdict and we see nothing to be gained by another trial." This very frank statement of counsel leaves as the only matters for our consideration the evidence and the action of the trial court in overruling the demurrer thereto. It is the contention of counsel for appellant that there is an entire failure of proof in the case entitling plaintiff to a recovery, and that the evidence in the case proves that under the law, plaintiff cannot recover.

The determination of these points involves a careful consideration of the testimony in the case.

Preliminary to taking up the...