Hornbuckle v. McCarty
| Decision Date | 27 July 1922 |
| Parties | LEMURAL HORNBUCKLE and CORA HORNBUCKLE v. W. E. McCARTY and BERNARD MALUGEN, Appellants |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. Almon Ing, Judge.
Affirmed (upon condition).
Henson & Woody for appellants.
(1) Under the facts as developed in this case, there is no liability on the part of the defendants, or either of them and their demurrer should have been sustained. McGee v Railroad, 214 Mo. 530, 541; King v. Railroad, 211 Mo. 1; Degonia v. Railroad, 224 Mo. 564, 595; Burge v. Railroad, 244 Mo. 76, 101; Guyer v Railroad, 174 Mo. 344; Keele v. Railroad, 258 Mo. 62, 77; Loring v. Railroad, 128 Mo. 349; Branstetter v. Railroad, 225 S.W. 1035; Markowitz v. Railroad, 186 Mo. 350; Gray v. Railroad, 179 Mo.App. 541; Lee v. Jones, 181 Mo. 291, 299; Shields v. Costello, 229 S.W. 411; Hight v. Bakery Co., 168 Mo.App. 431; Frank v. Free, 190 Mo.App. 73, 175 S.W. 217. (2) Plaintiffs' instruction numbered one is prejudicially erroneous. Ellis v. Met. St. Ry. Co., 234 Mo. 657, 680; Eckhard v. Transit Co., 190 Mo. 593, 618; Albright v. Joplin Oil Co., 229 S.W. 829; Rubick v. Sandler, 219 S.W. 406; Stark v. Bingham, 223 S.W. 946; Keele v. Railroad, 258 Mo. 62. (3) Defendants' instructions numbered three, four, six and nine should have been given, and their refusal was prejudicial error. Hight v. Bakery Co., 168 Mo.App. 433, 458; Frank v. Free, 190 Mo.App. 73; Battles v. Railway Co., 178 Mo.App. 596, 628; Gray v. Railroad, 179 Mo.App. 541; Schmitz v. Railroad, 46 Mo.App. 387. (4) The verdict of the jury is excessive, and could only have resulted from passion and prejudice. Dugdale v. Light & Power Co., 195 Mo.App. 243; Kelley v. Higginsville, 185 Mo.App. 55; Hickman v. Railroad, 22 Mo.App. 344; Parsons v. Railroad, 94 Mo. 286. (5) The injury to the deceased which caused his death was received as a result of his own act in running into the truck, and not on account of any negligence on the part of the defendants. Battles v. Railroad, 178 Mo.App. 627; McNulty v. Railroad, 166 Mo.App. 439; Spillane v. Railroad, 135 Mo. 414; Payne v. Railroad, 136 Mo. 562; Webb v. Railroad, 196 S.W. 86; Murphy v. Railroad, 228 Mo. 56; Gray v. Railroad, 179 Mo.App. 541.
David W. Hill and Sam M. Phillips for respondents.
(1) Plaintiffs were entitled to recover under the facts shown in this case. Eisenman v. Griffith, 181 Mo.App. 183; Spivack v. Bakery Co., 214 S.W. 166; Rowe v. Hammond, 172 Mo.App. 203; Hopfinger v. Young, 179 S.W. 747; Rasmussen v. Whipple, 211 Mass. 546; Nelligan v. Fountain, 225 Mass. 329; Berry on Automobiles (3 Ed.) sec. 468; Akers v. Fulkerson, 153 Ky. 228; Deputy v. Kimmell, 73 W.Va. 595, 51 L. R. A. (N. S.) 989; Ayers v. Ratshesky, 213 Mass. 589. (2) Defendant's chauffeur in suddenly turning the truck from the northern direction, which it was pursuing on Fourth Street or Broadway, west into Maple Street, without sounding the horn or giving other signal of the approach of the car, and while he was looking back over his shoulder, and not in the direction in which he was proceeding, was an act of gross negligence. Vaughn v. Davis & Sons, 221 S.W. 783; Nelligan v. Fountaine, 225 Mass. 329; Sec. 7593, R. S. 1919. (3) The evidence shows that at the time defendant's chauffeur turned the truck from Broadway west into Maple Street, and in fact until the time he struck deceased, the chauffeur was looking back over his shoulder at a boy that was standing in the back end of the truck holding a barrel. At the time, Beyrel Hornbuckle had already left the sidewalk on the south side of Maple Street and was some nine or ten feet out in the street, and if the defendant's chauffeur had been looking in the direction that he should have been looking, that is, the direction in which he was turning, he could readily have seen Beyrel, who was then walking in a north-western direction across Maple Street looking in a western direction, that is, in a direction away from the automobile, in time to have warned him of the approach of the car, or in time to have avoided striking him entirely, for the testimony shows that he could easily have turned the car in behind Beyrel or could have stopped it in eight or ten feet if he had been looking at what he was doing, or he could have shouted or warned him in some other manner of the approach of the car. Eisenman v. Griffith, 181 Mo.App. 183; Proctor v. Poplar Bluff, 184 S.W. 123; O'Donnell v. Hannibal, 144 Mo.App. 155; Norton v. Cramer, 180 Mo. 536; Sutter v. Kansas City, 138 Mo.App. 105. (4) The verdict of the jury in this case is not excessive. Miller v. So. Pacific, 226 Mo. 19; Ellis v. Met. Street Ry. Co., 234 Mo. 657; Bright v. Thatcher, 202 Mo.App. 301. Section 4219 allows damages in this kind of cases up to the amount of $ 10,000. Any verdict for a sum greater than $ 10,000 would be excessive; that is, more than allowed by law. Any sum under $ 10,000 would not be excessive or more than allowed by law. There is no way of exactly fixing the amount of damages in cases of this kind. There is no question of law at issue, it is just a matter of opinion and the opinion of one man might or might not control the opinion of others. The jury fixed the amount at $ 10,000. This was their judgment and opinion of what would be right and just in the matter. The trial judge approved their verdict and opinion and overruled the motion for new trial. It was his judgment that the verdict should not be disturbed. No living man can tell what the value of Beyrel's services would have been to his parents. The statute leaves this matter to the discretion of the jury. Even if this court should consider the verdict in this case excessive, still it should not reverse and remand this case for that reason, because under the facts this court has the right to order a remittitur of such amount as it may believe the verdict to be excessive. Cook v. Globe Printing Co., 227 Mo. 471, 561; Midwest National Bank v. Davis, 223 S.W. 412; Riggs v. Railway, 212 S.W. 878; Gaty v. United Rys. Co., 227 S.W. 1041.
Plaintiffs by this action seek to recover damages for the death of their minor son, Beyrel, who was run over and killed by a motor truck, at the crossing of Fourth and Maple Streets, in Poplar Bluff, on the 12th day of June, 1920.
Fourth Street, also known as Broadway, ran north and south; Maple Street, east and west. The former approached the latter from the south on a rising grade, which reached its crest at the intersection. Maple Street from that point proceeded west on a descending grade. Fourth Street was forty feet wide, and Maple about twenty-five. Both streets were paved, and at the intersection of their median lines there was a traffic post. The crossing was in the business district of the city, and Fourth Street in particular was extensively used for pedestrian travel and traffic of all kinds.
Plaintiffs' son was seven years and eight months old. He was an intelligent boy, and in all respects normal and healthy. He had attended school; gone around town by himself, and had ridden in automobiles and knew about them.
The truck with which he collided was owned by defendant McCarty, who was engaged in bottling, distributing and shipping Coca Cola and other soft drinks. It was being driven by his employee, and now his codefendant, Malugen. The driver's seat on the vehicle was in a cab just back of the motor. There were fenders over the front wheels, and extending back from each of these was a short running board, which served as a step for stepping from the roadway into the cab. Immediately back of the cab was the bed of the truck, which extended out beyond the sides of the cab some five or six inches and back over the rear wheels. On the occasion in question it was loaded with cases of Coca Cola; in the rear end there was also a barrel of the beverage, the entire load weighing about 2500 pounds. The truck was equipped with hard-rubber tires, but in running over a paved street at the rate of five or six miles an hour made considerable noise. The length of the vehicle was not shown, except that it was longer than the ordinary touring car. The distance from the short running board, or step, to the rear wheel was approximately six feet.
On the afternoon of the day heretofore mentioned, plaintiffs' son and another boy of about the same age were walking north across Maple Street. Their line of progress was coincident with that of the sidewalk on the left side of Fourth Street or approximately so. Beyrel was ahead, and both were eating ice cream cones. On the opposite side of the street from them the truck driven by Malugen was proceeding north at the rate of from six to ten miles an hour. It turned at the traffic post, and headed west on the north side of Maple Street. At the time the truck was turning around the safety post the Hornbuckle boy had reached a point about half way across the street. He continued walking north, and the truck without slackening speed proceeded on west. Their lines of progress brought them together; the boy came into contact with the running board near the front of the truck on the left side, was thrown down, and the left rear wheel passed over his head, killing him instantly. After the truck had passed, the body of the little boy was lying with the head toward the west, about six feet west of the west line of Fourth Street, and seven and one-half or eight feet south of the north line of Maple. Prior to the collision the deceased seemed to be entirely oblivious of the truck and its movements. As he walked along going north he had his head turned and was looking to the west, and so continued until he came into contact with the machine. Besides Malugen there was...
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