Hubbard v. Badalamenti

• Decision Date: 05 June 1928
• Docket Number: No. 20172.,20172.
• Citation: 6 S.W.2d 983
• Parties: HUBBARD v. BADALAMENTI.
• Court: Missouri Court of Appeals

6 S.W.2d 983

HUBBARD v. BADALAMENTI.

No. 20172.

St. Louis Court of Appeals. Missouri.

June 5, 1928.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Joshua B. Hubbard, an infant, by Lawrence Hubbard, his next friend, against Antonio Badalamenti. From a judgment for plaintiff, defendant appeals. Affirmed.

Geers & Geers, of St. Louis, for appellant.

John F. Clancy, Mark D. Eagleton, and James A. Waechter, all of St. Louis, for respondent.

BECKER, J.

Plaintiff, a minor, by next friend, had judgment against the defendant in an action for damages for personal injuries. Verdict and judgment for plaintiff were entered in the sum of $6,000, but, in passing upon defendant's motion for new trial, the court ordered a remittitur of $1,500, which remittitur was duly made and a new judgment entered in favor of plaintiff for $4,500. Defendant in due course appeals.

Plaintiff's case was submitted to the jury upon an instruction predicated upon the humanitarian doctrine. The first assignment of error is that plaintiff failed to make out a case entitling him to go to the jury under the humanitarian doctrine, and that the trial court erred in not sustaining defendant's demurrer offered at the close of the whole case.

In passing upon defendant's demurrer, offered at the close of the case, plaintiff's evidence, whether contradicted or not, must be regarded as true so long as it is not contrary to the physical facts of the case or entirely beyond reason, and defendant's evidence must be taken as false, where it is contradicted by that of plaintiff, and, further, plaintiff must be given the benefit of every reasonable inference of fact arising on all the proof. Williams v. Ry. Co., 257 Mo. 87, loc. cit. 112, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Fritz v. Ry. Co., 243 Mo. 62, loc. cit. 77, 148 S. W. 74; Van Raalte v. Graff, 299 Mo. 513, 253 S. W. 220; Stauffer v. St. Ry. Co., 243 Mo. 305, loc cit. 316, 147 S. W. 1032; Wair v. Am. Car & Foundry Co. (Mo. App.) 285 S. W. 155; Peters v. Lusk, 200 Mo. App. 372, 206 S. W. 250.

Our reading of the record, in light of the above rule, has brought us to the conclusion that there was substantial evidence to warrant the submission of the case to the jury under the humanitarian doctrine.

There is testimony, if believed, which tends to prove that on September 29, 1924, when plaintiff was about 5½ years old, he was struck by an automobile driven by defendant, causing him injury; that this occurred on Eleventh street, between Mallinckrodt and Destrehan streets, in the city of St. Louis; Eleventh street runs north and south, and is approximately 25 feet wide from curb to curb, and in the center thereof there is a single street car track; that at 9:45 o'clock in the morning the defendant drove his automobile southwardly on the west side of Eleventh street in the block between Mallinckrodt and Destrehan streets; that plaintiff, at a point near the middle of the block, stepped off the sidewalk on the east side of the street and started to cross to the west side thereof in a southwesterly direction, at an angle of about 45 degrees; that at the time plaintiff stepped off of the sidewalk the defendant's machine was about 200 feet distant toward the north, approaching at a speed of 18 to 22 miles per hour; that the machine kept approaching without any change in its speed until it struck plaintiff at a point about 4 feet beyond the west car track; that, as the defendant's automobile struck plaintiff, defendant swerved his wheels toward the car track, "and went along with his wheels, sliding about 15 or 20 feet before he stopped"; further that no bell or horn or signal of any kind was given by the defendant prior to the time he struck plaintiff.

It is conceded that five or six laborers were working on the east half of Eleventh street at a point north of the point where the plaintiff was struck. Further testimony adduced on behalf of the plaintiff is to the effect that there were no other vehicles on Eleventh street in the block in question at the time of the accident.

As to the distance in which defendant's car could be stopped, the defendant himself testified that he was driving a new coupé, with brakes in good condition, and that, with the conditions present, he could stop the car going at 10 miles an hour "within 4 or 5 feet," and at 15 miles an hour "within 5 or 6 feet," and at 20 miles an hour "in about 8 or 9 feet." In this state of the record no discussion is necessary that the evidence was sufficient to take the case to the jury under the humanitarian rule. Burke v. Pappas (Mo. Sup.) 293 S. W. 142; Lavine v. United Rys. Co. (Mo. App.) 217 S. W. 574; Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482.

It is further urged that plaintiff's instruction numbered 6 is erroneous, in that it authorized the jury to take into consideration, in...