Hildreth v. Key

Decision Date16 December 1960
Docket NumberNo. 7893,7893
Citation341 S.W.2d 601
PartiesVirgil HILDRETH and Annalee Hildreth, Plaintiffs-Respondents, v. Robert KEY, Defendant-Appellant.
CourtMissouri Court of Appeals

Charles D. Tudor, A. L. Shortridge, Joplin, for defendant-appellant.

Edward G. Farmer, Jr., Stewart E. Tatum, Joplin, for plaintiffs-respondents.

STONE, Presiding Judge.

This is an action for damages by Virgil and Annalee Hildreth, the adoptive father and the natural mother of Steven Alan Hildreth, for the alleged wrongful death of Steven, then six years of age, by reason of injuries sustained when he was struck about 1:00 P.M. on Sunday, November 14, 1954, by a 1949 Nash automobile then being driven by defendant, Robert E. Key, on Iron Gates Road in a suburban community near Joplin, Missouri. From the judgment of $8,000 entered upon the verdict, defendant has perfected this appeal. We pass defendant's initial appellate complaint, i. e., that the trial court erred in overruling his motion for a directed verdict at the close of plaintiffs' evidence, because, by thereafter offering evidence, any such error was waived. Snead v. Sentlinger, Mo., 327 S.W.2d 202, 203(1); Wilt v. Waterfield, Mo., 273 S.W.2d 290, 293-294(2); Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 607(12). But, the further complaint of error in overruling defendant's motion for a directed verdict at the close of all of the evidence requires a factual review, in which we should and do give appropriate recognition to the basic principle that, in determining whether a submissible case was made, we must consider the evidence in the light most favorable to plaintiffs, must accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant's evidence except insofar as it may aid plaintiffs' case. Daniels v. Smith, Mo., 323 S.W.2d 705, 706(2); Anderson v. Welty, Mo.App., 334 S.W.2d 132, 134(2); Denney v. Spot Martin, Inc., Mo.App., 328 S.W.2d 399, 401(1); Pieper v. Lewis, Mo.App., 321 S.W.2d 4, 5(2).

Defendant turned north onto Iron Gates Road from 25th Street, the second east-and-west street south of the point of accident. Iron Gates had a two-lane blacktop roadway, the width of which was not shown more precisely than that two automobiles could pass without difficulty. The shoulder on each side of the blacktop was quite narrow (again we find no measurement or estimate of width), and at and near the point of accident the ground sloped from the east edge of the blacktop into the north-and-south drainage ditch, about eighteen inches in depth, which ran parallel with and on the east side of the roadway. There was no curb, gutter or sidewalk on either side. The day was sunny and warm, and the roadway was dry. Defendant, an automobile mechanic thirty-three years of age, and his wife, the only passenger in his automobile, were going to a wedding. They were in no hurry--'we had plenty of time.' As he drove north on his right-hand or east side of Iron Gates, defendant was traveling at a rate of speed described by plaintiffs' witnesses as 'moderate' and estimated by defendant at fifteen to twenty miles per hour. At a point in front of the Cox home, which faces Iron Gates and is situate on the northeast corner of the intersection of Iron Gates and 24th Street, both defendant and his wife heard 'a noise' or 'a thud.' Defendant immediately stopped his automobile, and his wife opened the right door and 'looked out to see what it was.' Steven was lying 'at the (east) side of the road,' about fifty-four fee north of the north line of 24th Street, with his feet on the sloping east shoulder of Iron Gates and 'his head * * * down at the bottom of the (drainage) ditch.' He was 'close to,' just 'a little ways north' of, a short walkway bridging the shallow drainage ditch on the east side of Iron Gates, that is, leading from a low north-and-south retaining wall along the front of the Cox yard to the east edge of the blacktop roadway. Steven died the same day without regaining consciousness. Subsequent inspection of defendant's automobile revealed a dent in the right front fender just above and inside the right headlight. It was admitted upon trial that Steven died 'as a result of having come into contact' with defendant's automobile. Neither defendant nor his wife had seen Steven prior to the accident.

On the day of this tragic occurrence, Steven and his mother had Sunday dinner at the home of his maternal grandmother, Mrs. Katherine Harmon, who lived on the southwest corner of the intersection of Iron Gates Road and 24th Street. After dinner, Steven went outside to play with 'the Cox children'; and, in the course of childish frolic, Steven and Lynn Cox, the youngest Cox child, got into the back yard of the Cox home on the northeast corner of the intersection, where Mrs. Edith Cox, Lynn's mother, talked with Steven and observed him winding the string around a yo-yo. By reason of the fact that Lynn's parents were preparing to take Lynn with them to visit his grandparents, Steven left the back yard of the Cox home, and Mrs. Cox went inside to 'gather up a few things.' The only information we have concerning Steven's subsequent conduct and course is gleaned from the testimony of Lynn Cox, who was four years and seven months old when the accident occurred on November 14, 1954, and nine years and ten months old when the case was tried on January 13, 1960. Passing for the moment defendant's complaints pertaining to Lynn's competency (of which we treat anon), we here note the material facts which the jury might have found from his testimony as received.

When Steven left the Coxes' back yard, he 'started home' (i. e., to return to his grandmother's home 'cater-cornered' across Iron Gates Road), and Lynn went with Steven around the south side of the Cox home and 'to the middle' of the walkway bridging the shallow north-and-south drainage ditch along the east side of Iron Gates Road. At that point, Lynn heard his mother calling for him and 'ran back around' the south side of the Cox home. When Lynn left Steven, he (Steven) was 'playing with his yo-yo' and 'walking on top of the bridge (walkway).' Lynn did not see defendant's automobile or witness the accident, but as he rounded 'the (southwest front) corner of the house I heard some noise.' Lynn's mother 'heard this commotion, * * * panicked and run for the back door,' thinking that it was her boy who had been injured. By the time Lynn had reached the back porch, his mother met him with the relieved ejaculation that 'she thought I (Lynn) got hit by a car.' When she went around to the front yard, she found the stricken Steven. There was no eyewitness to the fatal accident.

Defendant earnestly insists that, even with Lynn's testimony, plaintiffs did not make a prima facie case on their theory of submission, to-wit, for alleged primary negligence in failing to maintain a vigilant lookout. Defendant's argument on this point runs along the line that, since the front of the Cox home was thirty feet east of the walkway and the distance Lynn ran after leaving Steven on the walkway and before hearing the 'noise' as he (Lynn) rounded the corner of his home 'could have been as much as forty feet,' and since we should recognize judicially (so defendant says) that Lynn 'ran at the rate of 8.8 feet per second,' the accident occurred 'at least four or five seconds' after Lynn left Steven; that, depending upon whose estimate of speed is used, defendant's automobile must have been 'from ninety to one hundred seventy-five feet' distant when Lynn left Steven on the walkway; that, during this interval of four or five seconds, Steven 'could have done any number of things'; that 'nothing in the evidence indicated when and in what manner (Steven) started or arrived on the roadway'; and that, therefore, plaintiffs' case rested upon the unwarranted 'assumption that Steven was on the pavement or moving toward the pavement in such a manner that he was seen or could have been seen by the defendant in time to (have avoided) the accident.'

Our view of the evidence and of the inferences reasonably deducible therefrom is not so narrow and restricted. Plaintiffs adduced evidence that, when defendant's north-bound automobile was 'just south' of the intersection of Iron Gates Road and 24th Street, defendant 'was looking back over his left shoulder' as his automobile was passing a south-bound automobile. Compare Spencer v. Kansas City Public Service Co., Mo.App., 250 S.W.2d 187, 191(3). Defendant and his wife had no recollection of having passed a south-bound automobile, and both insisted that, as they approached the point of accident, they 'were watching ahead' with undistracted attention. However, regardless of whether, in fact, defendant then maintained a vigilant lookout ahead, certainly the continuous and inescapable duty to do so rested upon him. Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 129(4); Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78, 82(4); Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21, 23(2). To satisfy and discharge that duty, he was required, stated generally, to look in such observant manner as to enable him to see what one in the exercise of the highest degree of care for himself and others could and should have seen under similar circumstances [Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114, 118(8); Leek v. Dillard, Mo.App., 304 S.W.2d 60, 67(15); Riley v. Young, Mo.App., 218 S.W.2d 805, 808(1)]; and, as related to the facts of the instant case, that duty encompassed the obligation to see anyone on the unobstructed shoulders of Iron Gates Road or on the walkway bridging the drainage ditch in front of the Cox home. Williams v. Ricklemann, Mo., 292 S.W.2d 276, 281(6); Scaggs v. Uetrecht, Mo., 244 S.W.2d 17, 20; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 938(4).

The testimony of Lynn Cox placed Steven 'in the middle' of the walkway where (to...

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