Irvin v. Kelting

• Decision Date: 08 March 1932
• Docket Number: No. 21827.,21827.
• Parties: IRVIN v. KELTING.
• Court: Missouri Court of Appeals

46 S.W.2d 924

IRVIN v. KELTING.

No. 21827.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Rehearing Denied March 22, 1932.

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

"Not to be officially published."

Action by Champ Irvin, an infant, by Kissie Irvin, his next friend, against Dan Kelting. From the judgment for plaintiff, defendant appeals.

Affirmed.

Fred H. Blades and Allen, Moser & Marsalek, all of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff when he was struck and run over by defendant's automobile on O'Fallon street, near its intersection with Twenty-First street, in the city of St. Louis, on August 7, 1929. Plaintiff was 10 years of age at the time of the accident, and he prosecutes this action by his next friend. Tried to a jury, a verdict was returned in favor of plaintiff and against defendant in the sum of $5,000; and, from the judgment rendered, defendant has duly appealed.

While the petition counted upon numerous assignments of primary negligence, coupled with an assignment of negligence under the humanitarian doctrine, it was upon the latter charge alone that the case was submitted to the jury; and in our subsequent statement of the facts we shall have particular regard to that theory of recovery, especially in view of the fact that defendant now insists most earnestly that the evidence was insufficient to have warranted its submission to the jury. The answer of defendant was a bare general denial.

That plaintiff was struck and injured is conceded in the evidence, and it is only the question of defendant's liability for the accident which is disputed.

O'Fallon street, which is about forty feet in width, runs east and west, and intersects at right angles with Twentieth and Twenty-First streets; the former being one block east of the latter.

Plaintiff was on his way home from school on the afternoon in question, and was propelling himself along on a scooter, which was very likely of his own manufacture, in that it is described as having been constructed of a board fastened upon roller skates, with an upright handle in front by which he might support himself. The evidence shows that plaintiff operated the scooter in the manner in which every one has doubtless seen small boys use them; that is, with one foot upon the board, he would push against the pavement with the other foot until he had gained sufficient momentum to enable the scooter to carry him along upon it.

Plaintiff came into O'Fallon street out of Twentieth street and promptly climbed upon or caught hold of the rear end of a one-horse ice and coal wagon, which was being driven slowly in a westwardly direction on O'Fallon street, midway between the curbs. He rode along upon or behind the wagon until it reached a point some two or three houses from Twenty-First street, when the driver learned of his presence and ordered him off. After a couple of such warnings, plaintiff released his hold, and, without looking behind him for approaching traffic, started immediately for the south side of the street upon his scooter. He did not pause in his course, and had come within four feet of the south curb when he was struck by defendant's automobile which was overtaking and attempting to pass the wagon to the left, and was knocked down, run over, and painfully injured.

Plaintiff testified that he heard no horn, and did not see the automobile before it struck him; that he had been riding or supporting himself near the right rear corner of the wagon; and that he traveled a total distance of about twelve feet from the time he released his hold on the wagon until he was struck. However, there was other evidence for plaintiff which disclosed that the distance which he traveled might have been as little as ten, or as much as fourteen, feet.

An eyewitness of the accident, who observed the whole occurrence from a window of her home which fronted on O'Fallon street, testified for plaintiff that when he climbed off of the wagon and started for the south curb the automobile was then sixty-eight feet away from him, and traveling rather rapidly; that defendant first started to pull to the right of the wagon, but, finding his course blocked by a parked automobile, turned over to the left; that it was then that plaintiff was struck; and that the speed of the automobile was not changed from the time the witness first observed it approaching from behind the wagon until the accident occurred.

While defendant's theory of the case was that plaintiff left the wagon and darted out in front of the automobile so suddenly that the collision could not be avoided, and thus served generally to negative the idea of negligence under the humanitarian doctrine, there was nevertheless certain testimony, particularly on the part of defendant himself, which tended rather strongly to aid and eke out plaintiff's case. Of such character was defendant's denial that he ever attempted to pass the wagon to the right, as certain of plaintiff's evidence had shown, together with his further testimony that he was driving at a speed of about twenty miles an hour preceding the accident; that he was approximately seventy-five feet away from the wagon when he first observed it in the street ahead of him; that the right side of the wagon was within two and one-half or three feet of the north curb; that he had observed plaintiff hanging upon the rear of the wagon, and had been prompted to sound his horn when he was yet forty feet away from him; that he threw on his brakes momentarily before the collision occurred; and that he actually brought his automobile to a stop in a space of twelve feet.

The prime insistence of defendant is that his requested peremptory instruction in the nature of a demurrer to all the evidence should have been given; his point being, as we have heretofore suggested, that there was a total failure of proof of negligence under the humanitarian doctrine, upon which theory alone the case was submitted to the jury.

Of course this contention leaves out of all account the question of whether plaintiff may not have made a case under one or more of his assignments of primary negligence, all of which were still in the case at the time the court was called upon to rule upon the demurrer. In other words, the several specifications of primary negligence were not abandoned by plaintiff until after the demurrer had been overruled, and the time came for the request for instructions; and, even though defendant might be found to be correct in his contention that no case was made for negligence under the humanitarian doctrine, nevertheless the trial court could not be convicted of error in connection with its ruling on the demurrer unless each and every one of the grounds of primary negligence was equally without support in the evidence. Schroeder v. Wells, 310 Mo. 642, 276 S. W. 60; Benzel v. Anishanzlin (Mo. App.) 297 S. W. 180; Mattocks v. Emerson Drug Co. (Mo. App.) 33 S. W.(2d) 142, 144. However, defendant has again raised the point in questioning the sufficiency of the evidence to have warranted the giving of plaintiff's instruction No. 1, which was his principal instruction; and, if we shall find that there was a case for the jury under the one issue now in controversy, it will serve to justify, not only the overruling of the demurrer, but the giving of the instruction as well.

Now in testing the adequacy of the evidence in the light of the objections which are urged against it by defendant, we must keep in mind the constitutive elements of the humanitarian doctrine, which are that plaintiff was in a perilous position, of which defendant had actual or constructive notice; that defendant thereafter had the ability and opportunity, with the means at his disposal, to have averted the accident without injury to himself; that he failed to exercise due care to do so; and that, as a result of his failure, plaintiff's injuries were received. Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482; Wilson v....