James v. La Mear, 39719.

• Decision Date: 30 April 1946
• Docket Number: No. 39719.,39719.
• Citation: 194 S.W.2d 915
• Parties: JAMES v. LA MEAR.
• Court: Missouri Supreme Court

194 S.W.2d 915

JAMES v. LA MEAR.

No. 39719.

Supreme Court of Missouri, Division No. 2.

April 30, 1946.

Rehearing Denied June 10, 1946.

Appeal from St. Louis Circuit Court, Division No. 9; F. E. Williams, Judge.

Action by Bernice James against Edgar La Mear, an individual, doing business as the La Mear Hauling Company, to recover for loss of services and for medical expenses incurred by plaintiff because of injuries allegedly sustained by plaintiff's ten-year-old son who was struck by defendant's truck. From an order granting plaintiff a new trial and setting aside a verdict for defendant, the defendant appeals.

Order affirmed and cause remanded for a new trial.

Walther, Hecker & Walther, of St. Louis, for appellant.

Russell J. Horsefield and Joseph Rogers, both of St. Louis, for respondent.

LEEDY, Judge.

This is an appeal from an order granting plaintiff a new trial, and setting aside a verdict in favor of defendant. The action is one for damages in the sum of $10,000 brought by the mother of a ten-year-old colored boy for loss of services and for medical expenses incurred by reason of injuries alleged to have been suffered by the boy, Osie James, through the negligence of defendant's agent in a collision at the intersection of 15th and Singleton streets in the City of St. Louis between defendant's truck and an improvised coasting device on which the boy was riding.

That the boy was seriously injured and hospitalized for two months is not controverted. His medical evidence showed that he suffered a compound, comminuted, depressed skull fracture in the right temporal-parietal region, with injury to the brain cells and to the membranes which cover the brain, thus causing structural changes therein. A surgical operation performed on the skull involved the removal of fragments of bone an inch and one-half long and an inch wide, and it was testified that, as a result the boy would never have any skull where the bone was removed; "from the outside of the brain there would be only hair, skin, subcutaneous tissue." He had expert medical testimony to the effect that he would not be able to do any manual labor.

The accident occurred about 4:30 P.M., on December 16, 1943, at the intersection of 15th Street (which runs north and south) with Singleton, an east and west street. 15th Street extends to, but not south of Singleton, thus forming a "T" intersection. There are two two-story flats or tenements on the south side of Singleton and directly in the pathway of 15th Street, if the latter were projected southward from Singleton. Osie and his mother, the plaintiff, lived in one of these flats. Their entrance faced north on Singleton directly opposite the head of 15th Street. There is a five or six foot passageway, referred to throughout the testimony as a gangway, between the two flats, and extending to the back yards located to the south or rear of said flats.

The street and sidewalk on Singleton in front of plaintiff's home and for some distance in all directions, including 15th Street, were covered with ice and snow, and such had been the condition for four or five days. Singleton is level, but 15th slopes rather abruptly to the north from the point where it runs into Singleton. There was testimony to the effect that neighborhood children, numbering as many as fifteen or twenty were coasting and sliding in the street near the place of accident, and had been all day. One of the devices used by the children was a piece of an old car fender (usually referred to in the evidence as a piece of tin) to which a length of rope had been attached.

Plaintiff's main witnesses to the actual collision were two adult residents of the immediate neighborhood. Charles Wylie testified that he was standing near the intersection where the children were playing in the street; that some children "hollered", and he looked up and saw Osie lying down on a piece of tin in the middle of the intersection, and that another boy had hold of the rope; that at that time the truck was 50 or 60 feet west of him, and it continued east on Singleton at about the same speed and without sounding the horn until after the boy was hit; that the front wheel of the truck hit the boy, and that the rest of the children screamed and "scattered" before the collision; that the truck continued on east for 30 or 40 feet after the collision before it stopped and the driver came back. James Rankin testified he had just bought some wood from Wylie, and was standing in front of 1422 Singleton, and heard the boys "holler", and looked back; that Osie was lying on the street on a piece of tin and the truck was about 50 or 60 feet west of him; that it kept coming and didn't sound a horn; that the speed on the truck was not checked until it hit the boy, and then went 25 or 30 feet before stopping; that the right front wheel of the truck hit the boy.

Osie testified he was unable to recall anything except that one of the boys asked him "did I want a ride and I got on a piece of tin. I laid flat on it, I was on the sidewalk when I got on it. * * * I don't know what it was that hit me. I didn't ever see or hear the car. I don't know where I was when I got hit. * * * When I got onto the piece of tin, Julius was going to give me a ride across the street; he was going to pull me. I can't tell you anything more than what I have told you."

Defendant called Osie's teacher who identified a mental examination report on Osie which showed that while his chronological age was nine years and one month, his mental age was five years and six months and that his I. Q. was 60. She further testified that he was away from school for sixty days following the date of the accident and that there did not seem to be any change in his actions or conduct after the accident as compared to the condition before the accident.

Two witnesses testified for defendant respecting the collision. One, Calvin Kirksey, a ten-year-old boy whose version was that a boy was pulling Osie on the device mentioned; that he came out of the gangway across the sidewalk and out into the street; that after he got off the sidewalk and out in the street the truck hit Osie, the other boy jumping out of the way. He testified that the front wheel of the truck hit Osie, and he was positive he wasn't hit by the back wheel. Defendant claimed surprise because of an alleged previous statement in which he said Osie was struck by the back wheel, but the court sustained an objection, and refused to permit defendant's counsel to impeach his own witness on the ground that there was no surprise because the witness had testified by deposition that the front end of the truck hit him, and defendant's counsel had cross-examined him thereon.

Immediately following this, Vincent Syron, a police officer, was called and he testified for the defendant. He stated that in a response to a radio call received around 4:30 or 4:45 on the day in question he proceeded to the scene of the accident and made an investigation; that that evening in connection with his investigation he questioned Calvin Kirksey as to how the accident happened and Kirksey stated that it was the right rear wheel which collided with the boy. Plaintiff's objection as to defendant impeaching his own witness was renewed, and again sustained. The defendant then offered to prove that Kirksey had stated to Syron that Osie had come out from the curb and ran into the right rear wheel of the truck as it was passing the gangway. The same objection was interposed and sustained. The witness then stated that he saw Osie that evening at the hospital but that his physical condition was such that he was unable to be questioned concerning the accident; that he had talked to Osie several dozen times since the date of the accident but did not talk to him about the accident, and that he had seen Osie a number of times since around the neighborhood. Asked what he had seen him do, he replied, "Well, a few weeks ago we had occasion to arrest him for breaking street lamps." This was promptly objected to as wholly immaterial and highly prejudicial, and the objection was sustained. He further stated that he had seen Osie around the neighborhood "all hours of the day and night, depending on the watch I happened to be on; I did see him on the last night watch * * * about a month ago * * * it was about 1:30 or 2:00 o'clock. There was something in the weeds, running, and we stopped it and it was Osie James going to a fire, he said." On cross-examination this witness testified that the streets were icy on the day of the accident and in very bad shape; that he was entirely familiar with that part of town; there were vacant lots there; there is a large playground within a block, and a large baseball field at 13th and Gratiot; he had been around there frequently that day; the children had not been around there in the daytime in the street, sliding around; he saw them playing there several days, but whether immediately before this accident he did not know. His redirect examination was to the effect that this place was just a block from the city dump; that there was a car parked on Singleton street [location not particularized] at the time of the accident; the streets and sidewalks were covered with ice at the time. "You see, something overflowed in this gangway and into the back yard, even made it more icy in that gangway, and out in the street, than it naturally would have been from the ice and snow; you couldn't get through that gangway; you couldn't step on that ice; it was too slippery; Exhibit `D' looks like the gangway did at the time we were out there making that...