Hults v. Miller

• Decision Date: 04 October 1927
• Docket Number: No. 19726.,19726.
• Citation: 299 S.W. 85
• Court: Missouri Court of Appeals
• Parties: HULTS v. MILLER.

299 S.W. 85

HULTS v. MILLER.

No. 19726.

St. Louis Court of Appeals, Missouri.

October 4, 1927.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action for personal injuries brought by Delbert Hults, an infant, by Ida Hults, his next friend, against Frederick A. Miller. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Curlee, Nortoni & Teasdale, of St. Louis, for appellant.

Ernest F. Oakley, Jr., Lena Frank, and Earl M. Pirkey, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries. On June 4, 1923, about 8:30 o'clock in the morning, plaintiff was walking or running across Hickory street from north to south at the intersection of Hickory street and Tenth street, in the city of St. Louis. Defendant was driving a Cole Eight touring automobile east on Hickory street. As plaintiff proceeded across the intersection he was struck by the automobile which defendant was driving,' and thus sustained the injuries for which he sues. The trial, with a jury, resulted in a verdict and judgment in favor of the plaintiff for $3,500, and the defendant appeals.

Hickory street runs east and west, and is 30 feet wide. Tenth street runs north and south, and is about the same width as Hickory street. Tenth street jogs at the intersection, so that the intersection on the north side of Hickory street is some distance to the west of the intersection on the south side of Hickory street. All the evidence shows that plaintiff was struck when he was at a point north of the center of Hickory street. The plaintiff's evidence tends to show that when he was struck his position was at or near the extension of the center line of Tenth street, whereas defendant's evidence tends to show that his position was at or near the extension of the east curb line of Tenth street.

Plaintiff's evidence tends to show that when he had proceeded to a point about 7 feet from the north curb of Hickory street, the automobile which defendant was driving was 125 to 175 feet west of the point of collision, and that there was no obstruction to prevent defendant from seeing plaintiff as the automobile approached the point of collision, and that plaintiff had proceeded to a point about 14 feet south of the north curb of Hickory street when he was struck; that when the automobile was 125 to 175 feet from the point of collision and the plaintiff was 7 feet from the curb, with nothing between him and defendant to obstruct the view, the automobile was running at a speed of about 25 miles per hour; that the automobile slowed down so that it was running about 12 to 15 miles per hour at the time it struck the plaintiff; that it had slowed down to a speed of about 15 to 20 miles per hour when it was about 20 feet from the point of collision; that running 25 miles per hour it could have been stopped within a distance of 35 to 50 feet with safety to the driver and the automobile; that the plaintiff was walking across the street at a speed of about 1 mile per hour at the time in question; that he was on his way to kindergarten; that there were no automobiles or other vehicles parked or traveling on the south side of the street; that there was nothing to prevent the defendant from driving his automobile on the south side of the street; that the speed of the automobile began to slow down when it was about 25 feet from the point of collision; that the automobile ran about 12 feet before it stopped after it struck plaintiff; that the plaintiff, when the car stopped, was lying under the car near the rear axle.

The evidence for the defendant tends to show that plaintiff was running across the street at the time he was struck; that he ran from behind a Ford automobile, which was parked on the north side of Hickory street parallel with the curb, facing west; that he passed behind the parked automobile about 4 feet from the rear end and ran southeasterly toward the southeast corner of the intersection of Hickory and Tenth streets; that the defendant's automobile was running at a speed of about 8 miles per hour as it approached the point of collision; that it passed the parked automobile about 5 feet to the south of it, and immediately struck the plaintiff as he ran across the street from behind the parked automobile; that the plaintiff was immediately in front of defendant's automobile when defendant first saw him; that defendant when he saw plaintiff immediately applied the brakes and stopped the automobile within a distance of three to four feet; that the plaintiff was struck by the left headlight of the automobile; that it struck with such force that the lens of the headlight was broken; that the plaintiff was lying under the car about midway between the front and rear wheels when the automobile stopped; that he was taken out from under the automobile on the south side of it; that there were several automobiles parked parallel to the south curb of Hickory street, just east of the intersection of Tenth and Hickory streets; that the automobile which defendant was driving, running at 15 miles per hour, could have been stopped within a distance of 6 to 8 feet with safety to the driver and the automobile; that running at 20 miles per hour it could have been stopped in a distance of 8 to 10 feet; that running at 25 miles per hour it could have been stopped in a distance of 10 to 15 feet; and that running at eight miles per hour it could have been stopped in a distance of 3 to 4 feet.

Plaintiff was just 5 years and 16 days old at the time of his injury.

The accident happened in a populous district. There were rows of houses on each side of the streets. There were two schools in the neighborhood, and the accident happened at the hour in the morning when the children were usually on their way to school. The defendant had previously driven over Hickory street, and was familiar with these conditions. An ordinance of the city limits the speed of automobiles in the district where the accident happened to 10 miles per hour.

The petition charges that on June 4, 1923, plaintiff was on Hickory street at or near Tenth street, and the defendant negligently caused and permitted an automobile which he was then the owner of and in charge and control of and operating to strike and knock down and drag plaintiff, whereby plaintiff was injured. The petition then sets out many unnecessary details in the nature of evidentiary facts, such as that the defendant was negligently running the automobile at a high and excessive rate of speed, which was not careful or prudent considering the time of day, the amount of vehicular and pedestrian traffic, the condition of said Hickory street at the places in the petition mentioned, and the location of said places with reference to the intersection of highways, and residences, and schools, and negligently failed to stop the automobile before it struck plaintiff, or turn such automobile sufficiently to prevent it from striking plaintiff, or check its speed sufficiently to prevent it from striking plaintiff, when defendant knew, or by the exercise of care commensurate with the circumstances would have known, that plaintiff was in imminent danger of being struck by said automobile, and being injured thereby, in time to 'have by the exercise of care commensurate with the circumstances, with the means at his command, and with safety to whoever was in said automobile, to stop said automobile before it struck plaintiff, or turn said automobile sufficiently to have prevented it from striking plaintiff, or check the speed of said automobile sufficiently to have prevented it from striking plaintiff, and at the time plaintiff was struck by said automobile as aforesaid and for a long space of time prior thereto defendant negligently failed to keep his said automobile when in operation as aforesaid as near the right-hand curb as practicable.

The petition also sets up the ordinance of the city limiting the speed of automobiles to 10 miles per hour, and charges that the automobile was being run in excess of 10 miles per hour at the time plaintiff was struck and injured and prior thereto.

The answer is a general denial, coupled with a plea of contributory negligence.

The court modified and gave to the jury plaintiff's instruction No. 3, directing a verdict for plaintiff if defendant operated its automobile at a rate of speed in excess of 10 miles per hour and such operating of the automobile at a rate of speed in excess of 19 miles per hour was a direct cause of plaintiff's injury. The defendant assigns error upon the giving of this instruction, on the ground that the evidence wholly fails to show any causal connection between the excessive rate of speed and the injury to plaintiff. We regard the evidence as amply sufficient to support a finding that the excessive rate of speed directly contributed to plaintiff's injury. Considering the evidence in the light most favorable to plaintiff, defendant was running his automobile along Hickory street through the intersection of Hickory and Tenth streets at the excessive rate of speed of 25 miles per hour. He was running the automobile at that rate of speed when he was a distance of from 125 to 175 feet from the point of collision and maintained that speed until he arrived at a point about 25 feet from the point of collision. When the automobile was at a distance of 125 to 175 feet from the point of collision, the plaintiff was walking south across Hickory street, and was then about 7 feet south of the north curb of the street. He was on his way to kindergarten, and was walking at a speed of 1 mile per hour. He was struck by the left headlight of the automobile when he was about 14 feet south of the north curb of the street. Mathematical calculation shows that if the automobile had been running at a lawful rate of speed, the plaintiff would have cleared its path before it arrived at the point of collision. It...