Hill v. Missouri Packing Co.

• Decision Date: 04 February 1930
• Docket Number: No. 20893.,20893.
• Citation: 24 S.W.2d 196
• Parties: HILL et al. v. MISSOURI PACKING CO., Inc.
• Court: Missouri Court of Appeals

24 S.W.2d 196

HILL et al. v. MISSOURI PACKING CO., Inc.

No. 20893.

St. Louis Court of Appeals. Missouri.

February 4, 1930.

Appeal from St. Louis Circuit Court; Henry A. Hamilton, Judge.

"Not to be officially published."

Action by Alvina Hill and another against the Missouri Packing Company, Inc. Judgment for plaintiffs, and defendant appeals. Reversed, and remanded.

W. E. Moser and Hensley, Allen & Marsalek, all of St. Louis, for appellant.

Everett J. Hullverson and Banister, Leonard, Sibley & McRoberts, all of St. Louis, for respondents.

SUTTON, C.

Plaintiffs bring this suit to recover damages for the wrongful death of their minor son. The suit was originally brought against the Missouri Packing Company, Robert S. Schmidt, and Curtis Pitman. Plaintiffs voluntarily dismissed as to Pitman before the trial, and as to Schmidt at the close of plaintiffs' case, and the cause proceeded against defendant company. The trial, with a jury, resulted in a verdict and judgment for plaintiffs against said defendant company for $10,000, which was subsequently reduced by remittitur to $7,500. From this judgment the defendant company appeals.

The death of plaintiffs' son resulted from being struck by a motortruck driven by defendant's chauffeur, Curtis Pitman, on December 27, 1927, in the city of St. Louis. The accident occurred on Jefferson avenue, just north of the intersection of said avenue and Randolph street. Jefferson avenue runs north and south, and Randolph street runs east and west. Bernard street intersects Jefferson avenue on the west, a block north of Randolph street. Randolph street where it runs east of Jefferson avenue is a short distance north of that part of the street running west from Jefferson avenue, thus forming a jog. There is also a turn or swerve in Jefferson avenue at this point. Traveling north along Jefferson avenue, this turn carries the street to the right as it passes Randolph street, at an angle of about 45 degrees. The middle of Jefferson avenue is occupied by two street car tracks.

According to the evidence for plaintiffs, the deceased, in company with his older brother Jim and another boy, were going to a drug store on the northeast corner of Jefferson avenue and Randolph street at the time of the accident. In coming from their home, which was a number of blocks to the west, they approached Jefferson avenue along Bernard street. They were all on the south side of Bernard street until they came near to Jefferson avenue, when the deceased ran over to the north side of Bernard street to get a piece of string. Deceased's brother and the other boy continued eastwardly on the south side of Bernard street, and upon reaching Jefferson avenue ran straight across the street from the southwest corner. The deceased, after getting the piece of string, continued along the north side of Bernard street, and was attempting to run across Jefferson avenue diagonally from the northwest corner of Jefferson avenue and Bernard street toward the drug store at the northeast corner of Jefferson avenue and Randolph street when he was struck by the automobile, which was proceeding northward along Jefferson avenue. The witnesses all agreed that the boy was running rapidly when he was struck; that the automobile, previous to the accident, was straddling the west rail of the north-bound car track, and that the boy was struck by the left front fender or the left side of the front bumper.

Ananias Daniel, who was called as a witness for plaintiffs, testified that he was standing on the northwest corner of Jefferson avenue and Bernard street, and saw the three boys crossing the street; that the two boys were 20 or 25 feet ahead of the third; that when deceased was not quite half way across the street the witness noticed the defendant's truck, which was then about half a block away, and coming northward at the rate of 35 miles an hour; that the machine sounded no horn, and did not check its speed or change its course; that the boy kept on running across the street and was struck by the left-hand side of the bumper in front of the car; that witness estimated the automobile ran 25 feet after it struck the boy; that the boys were angling across the street to the south; that he noticed the little boy in the middle of the south-bound car track when he saw the truck a half block away; that the boy was in the other track that the truck was running on when the truck hit him; that the boy was running fast.

Rachel Walker, a witness for the plaintiffs, testified that she was standing at the southwest corner of Jefferson avenue and Bernard street, talking to a man there; that she saw the two boys run across the street, followed by the third boy at a distance of about 6 feet; that the two older boys made it across, and the last one was trying to come up with them; that he just made it between the north-bound and south-bound car tracks, and by that time the truck, which was coming fast, struck him and knocked him down; that when the boy had gotten to the south-bound tracks the truck was about five or six car lengths away from him; that he was between the north-bound and south-bound tracks when he was hurt; that the truck ran six or eight car lengths after it struck the boy.

James Hill, the brother of deceased, called by plaintiffs, testified that he and Aze Pearson crossed Jefferson avenue from the south side of Bernard street and ran straight out to go on across the street; that he heard the car coming and looked for his brother, and saw that he was running sort of north; that his brother had left from the northwest corner; that the noise he heard was the motor of the approaching truck; that when he saw his brother, his brother was in the south-bound track, and the truck was about 50 feet away; that at the time this truck was about 50 feet south of his brother, his brother was about in between the two rails of the southbound track; that his brother kept going; that he ran straight—he was pretty close to the truck—ran straight out like, sort of north; that he did not see the truck until he got across the street and heard a motor; that he looked up and his brother was leaving the sidewalk, and this truck was in front of that Kroger store, and his brother was just leaving the sidewalk; that this truck was just about three car lengths down and he hollered; that by that time his brother heard him, and the truck was pretty close to him, so he ran north a little, and the truck bumper hit him and knocked him down; that he was standing on the sidewalk when he saw this, and his brother was only 10 feet behind him, running across the street.

Curtis Pitman, the chauffeur, called by defendant, testified: "Before the accident happened I was operating this truck straddle the west rail of the north-bound car track. There was a coal truck parked on the east side of Jefferson avenue north of this turn in the street. I was going along about eighteen or twenty miles per hour. Before the accident occurred I had sounded the horn on the truck when I approached Randolph street. When I first saw this boy he was about to cross the street. He was about the middle of the south-bound car track. He was running northeast across the street. He was running pretty fast for a boy of his age. There was a furniture truck moving south about that time. The boy came from behind the furniture truck. It seems as though the other two boys were chasing him. I wouldn't say for sure. The other two boys were behind him, and they stopped and went around back of my truck. This boy when I first saw him appear in back of that south-bound furniture truck was about six to eight feet in front of my truck. As soon as I saw him I cut my truck to the right, trying to get out of his way, and he just kept right on running, and ran right into the left front fender, and it caught him and threw him under the left front wheel. When I first saw him I sure tried to stop the truck, and I did slow it down a little bit, but you know you can't stop instantly."

George Washington, called by defendant, testified: "I saw this accident. At the time I was coming from Kroger's store, which is about the second or third door north of Randolph street. I was walking north on the east side of Jefferson avenue. This automobile truck was approaching from in back of me. It was going north also. Well, as I was walking out there from Kroger's store I seen two boys coming with a little boy in front, and the three of them running caused me to notice them like I did. I was walking north and they were coming running right towards me, and I seen this one boy being...