Hosford v. Clark

• Citation: 359 S.W.2d 424
• Decision Date: 24 July 1962
• Docket Number: No. 7999,7999
• Parties: Inez HOSFORD, a minor, by Helen Hosford, her natural guardian and next friend, Plaintiff-Appellant, v. Larry CLARK, a minor, by Harold D. Jones, guardian ad litem, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 424

359 S.W.2d 424

Inez HOSFORD, a minor, by Helen Hosford, her natural guardian and next friend, Plaintiff-Appellant, v. Larry CLARK, a minor, by Harold D. Jones, guardian ad litem,

Defendant-Respondent.

No. 7999.

Springfield Court of Appeals, Missouri.

July 24, 1962.

Motions for Rehearing or to Transfer Overruled Aug. 22, 1962.

Ward & Reeves, Caruthersville, for plaintiff-appellant.

Bock & Jones, New Madrid, for defendant-respondent.

STONE, Judge.

Juvenile jollity and giddy gaiety were, in the twinkling of an eye, translated and transformed into mischievous misadventure and miserable misfortune when, on a country road near Portageville, Missouri, about 11:00 P.M. on Saturday, September 19, 1959, plaintiff, Inez Hosford, then fourteen years of age, fell or was thrown from the right front fender of a 1957 Oldsmobile sedan being driven by defendant, Larry Clark, then seventeen years of age. Damages were denied by a nineman jury verdict for defendant; and, on this appeal from the judgment entered on the verdict, the only points presented by plaintiff are that the trial court erred in giving defendant's instructions 6 and 7. Defendant answers that any error in said instructions was cured by plaintiff's instructions 4 and 8, and further that, in any event, plaintiff was guilty of contributory negligence as a matter of law and thus did not make a submissible case. If the latter contention be well-taken, defendant's motion for a directed verdict at the close of the evidence should have been sustained and instructions given at his request (even though erroneous) could not have prejudiced plaintiff. Brooks v. Stewart, Mo., 335 S.W.2d 104, 105(1), 81 A.L.R.2d 508; Seeley v. Hutchison, Mo., 315 S.W.2d 821, 824(1); Burks v. Buckmiller, Mo.App., 349 S.W.2d 409, 411(1). Accordingly, we first consider whether plaintiff was contributorily negligent as a matter of law.

Early on the evening of the accident, plaintiff Inez, with thirteen-year old Linda Young and fourteen-year old Sandra Hall, had gone downtown in Portageville to a carnival operating in connection with the annual 'Soybean Festival.' Having done the carnival attractions, this trio of girls, afoot on Main Street about 9:30 P.M., were sighted by a trio of teen-age boys in the Oldsmobile. We observe parenthetically that the automobile was owned by one Orbin McHugh, defendant Larry's 'cousin by marriage,' who had permitted his fifteen-year old son, Michael David (Mike) McHugh, although unlicensed to operate a motor vehicle, to take the family automobile that evening and to drive it from the McHugh farm home to the farm home of defendant Larry's family about one mile distant with the understanding that Larry would drive from that point. So it was that on Main Street in Portageville later that evening Larry was at the wheel of the McHugh automobile with fifteen-year old Mike McHugh and eighteen-year old Vernon Stills, a neighbor youth, also in the automobile. Larry asked the girls if they 'wanted to go riding' and, having demurely hesitated for a monent, they accepted his invitation and got into the back seat of the Oldsmobile.

After driving in Portageville for some twenty or thirty minutes, defendant Larry left town on an unpaved country road which afforded a more appropriate setting for the protracted series of zany antics inspired by the occasion. Larry opened the cross fire of youthful buffoonery by switching the ignition off and on until the Oldsmobile stopped and then by pretending that 'we are out of gas.' Thirteen-year old Linda retaliated in kind by reaching over the front seat and grabbing the keys. Then all three girls jumped from the automobile, ran down the road ahead, and threw the keys back and forth from one to another. Two of the boys, defendant Larry and fifteen-year old Mike, immediately joined in the frivolous frolic; and, as plaintiff Inez described the action, 'we started scuffling with the key' or, as Mike graphically portrayed it, the boys 'took in after them (the girls) and we scrambled around there a little bit.' When he regained possession of the keys, Larry told Linda that she had lost one of the keys, although, as Mike explained, 'we really hadn't lost one--Larry just told her that.' Leaving Linda to hunt for the 'missing' key, the others returned to the automobile, plaintiff Inez and Sandra got into the back seat again, and defendant Larry started the motor, drove down the road to Linda, and terminated her search for the nonexistent key.

In the exhilaration and the exuberance of the moment, Linda climbed on the left front fender and sat sideways with her legs hanging over the side of the fender, holding (so plaintiff Inez thought) to 'the windshield wipers or something.' Not to be outdone by Linda, the other two girls left the back seat of the automobile, Sandra assumed a sitting position 'in the middle of the hood' with her back to the windshield and her legs and feet on the hood, and plaintiff seated herself on the front of the right front fender, facing forward with her feet on the front bumper, and holding with her left hand to an emblem or ornament on the hood. Admitting that he knew that 'it was dangerous for these girls to be riding on the front fender (sic) and hood,' defendant Larry testified that he had 'asked them (the girls) not to ride up there'; and in this he was supported by Mike who quoted Larry as having told the girls, 'would you please get off the front because my dad said not to let anyone ride on the front--it is dangerous.' But, both plaintiff and Linda testified that they had heard no such request or warning, and the evidence reasonably would have permitted a finding that none was given.

In any event, Larry started forward with the girls draped over the front of the Oldsmobile in the described positions. Proceeding (so he said) at a speed never in excess of fifteen miles per hour, he drove without incident 'approximately a quarter of a mile' in the course of which he rounded a sharp curve to his left. Approaching a second curve described by him as 'a corner,' Larry slackened speed to about five miles per hour; and, as he completed this curve, he spotted a side road where he could turn around. Intending so to do, Larry quickly applied the brakes, the automobile immediately stopped, and plaintiff unceremoniously fell or was thrown from the right front fender. Larry frankly stated upon trial that he had not driven previously either his cousin's Oldsmobile involved in this occurrence or, for that matter, any other automobile with power brakes, and that the power brakes on the Oldsmobile had 'grabbed hold quicker' than he had anticipated. The medical testimony was omitted from the transcript as not relevant to any issue upon appeal, but the reader may be interested to know that the record reflects relatively mild injuries and thus only near-tragic rather than calamitous consequences.

In support of his contention that plaintiff was contributorily negligent as a matter of law, defendant cites three cases [Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573; Sanford v. Gideon-Anderson Co., Mo.App., 31 S.W.2d 580; Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420], all of which involved adult riders on motor vehicles but only one of which [Smith, supra] held the rider guilty of contributory negligence as a matter of law. It is true that, as the adjudicated cases ¹ demonstrate, minors in the age range of plaintiff and her girl companions may be, in some circumstances, contributorily negligent as a matter of law. However, it is clear that a child is to be judged as such and not as an adult, ² "(f)or no court can hold that childhood and manhood are bound to observe the same degree of diligence." Jackson v. Butler, 249 Mo. 342, 370, 155 S.W. 1071, 1079(16). And, the authorities leave no room for doubt but that the care and caution required of a minor, who is of sufficient age to be chargeable with contributory negligence, is that ordinarily exercised by others of the same age, experience and capacity under the same or similar circumstances. ³

It has been recorded, as a general principle, that: "A voluntary exposure to known danger is an essential element of contributory negligence. Moreover, it is the appreciation of, or the opportunity to appreciate, the peril in an instrumentality or condition, rather than a knowledge of its physical characteristics, that bars a plaintiff of recovery for negligence." Bartlett v. Taylor, 351 Mo. 1060, 1071, 174 S.W.2d 844, 851(10, 11); 38 Am.Jur., Negligence, Sec. 188, p. 864. A fortiori, in actions by minor plaintiffs, it becomes appropriate and necessary to bear in mind that: 'Knowledge and appreciation of the danger and risk of injury, actual or imputed, is essential in order that a child may be guilty of contributory negligence. Mere knowledge that injury might result, without appreciation of the risk of injury to which his conduct exposed him, is not sufficient.' Turner v. City of Moberly, 224 Mo.App. 683, 685, 26 S.W.2d 997, 998; Wilson v. White, Mo.App., 272 S.W.2d 1, 6-7(12); United States v. Stoppelmann, 8 Cir., 266 F.2d 13, 19. In so stating, courts but recognize that which is common knowledge, i. e., that thoughtless conduct, impulsive action and immature judgment are concomitants of youth, and that, although 'a boy (or a girl) may have all the knowledge of an adult respecting the dangers which will attend a particular act * * * at the same time he (or she) may not have the prudence, thoughtfulness, and discretion to avoid them which are possessed by the ordinarily prudent adult person.' Burger v. Missouri Pac. R. Co., 112 Mo. 238, 249, 20 S.W. 439, 441; Holmes v. Missouri Pac. Ry. Co., 190 Mo. 98, 107, 88 S.W. 623, 625.

Since '(t)here is no fixed rule of law by which to gauge, or scale by which to nicely weigh, the acts of a minor to determine if he (or she) is guilty of contributory negligence' [Jackson v. Butler, supra, 249 Mo. loc. cit. 369, 155...