Hight v. American Bakery Co.
| Decision Date | 03 December 1912 |
| Citation | 151 S.W. 776,168 Mo.App. 431 |
| Parties | ALEX HIGHT by Next Friend, Respondent v. AMERICAN BAKERY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Submitted on Briefs November 11, 1912. [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
REVERSED.
STATEMENT.--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' employees 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' employees 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 the plaintiff for life. It is further averred that the defendants and their employees 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 $ 7500, 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 testimony as to the accident, it is as well to say that the appliance referred to as a whirligig in the petition was also called an aeroplane by those who testified. One of these whirligigs was in evidence and a photograph of it is in the abstract. We shall hereafter designate it as the toy. Without reproducing the photograph, it is sufficient to say of the toy that it appears to have been composed of a pasteboard stem about eight inches long and about five-sixteenths of an inch in diameter. The stem is about the size of an ordinary lead pencil. It is hollow in the center. At either end two small wires about as large in thickness as a very small pin extend out at right angles from the stem for a distance of four inches and then each wire bends, forming practically a right angle with the balance of the wire, and extends then about two inches. On each of these wires thus shaped a pice of very thin glazed paper is pasted so that each piece of paper is triangular in shape These pieces of paper constitute what may be called "wings." By taking hold of the stem and holding it stationary and winding the two wings at the bottom and then letting go of the stem, this toy will sail through the air until the two wings, thus wound up, unwind, when the toy will drop to the ground. Small rubber bands extend from the wires, through the hollow part of the stem, and the winding process consists of simply twisting these rubber bands around each other until they are tight, the unwinding of these bands causing the wings of the toy to revolve, thus keeping the toy in the air as long as that continues, dependent also on the velocity of the wind. There was no controversy over the fact that this toy was an advertising device, having printed on the wings matter calling attention to defendant's products. When sent up from the wagon by whoever was manipulating it in the manner before described, the toy will sail in whatever direction the wind happens to carry it.
Turn now to the testimony as to the happening of the accident.
Alexander Hight, the plaintiff, offered as a witness, was questioned by the court as to his conception of the obligation of an oath. Plaintiff, being accepted as a competent witness, said he was ten years old; had been going to school for four years. He testified that he was ten years of age in August following the accident, which had occurred on Saturday, July 9, 1910 that about eight o'clock on the morning of the day of the accident he was on the corner of Dickson street and Garrison avenue, playing with three other boys; saw the wagon around the corner. The people on the wagon threw out one of these toys and the boys ran after it and it flew under the wagon. He (plaintiff) thought the wagon was stopping. He stuck his hand under the wagon to get the toy which had fallen there or which had been carried there. The wagon then began to go faster and ran over his hand, or more properly, the arm, and crushed it. He did not remember how many of these toys had been thrown out before he was hurt. One of the boys on the wagon took the toy from under the seat and wound it up and it began flying around the wagon. After it flew under the wagon he (plaintiff) went to get it. When he undertook to do that he did not think of the wagon going over his arm; that when one of these toys had been thrown up before, the boys all began running after it. Plaintiff...
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